August 9, 2010 – Federalist No. 74 – The Command of the Military and Naval Forces, and the Pardoning Power of the Executive, from the New York Packet (Hamilton) – Guest Blogger: Allison Hayward, Vice President of Policy at the Center for Competitive Politics
Monday, August 9th, 2010
Federalist Paper 74 appeared on March 25, 1788 – readers should recall that this is roughly 6 months after the Constitution has been sent to the states for ratification. Only one day earlier, on March 24, Rhode Island in a popular referendum rejected the Constitution by a margin of about 10 to 1(Rhode Island eventually ratified the Constitution via convention in 1790, by a vote of 34-32). At this point, only six states had ratified the document.
So we can forgive Hamilton for sounding just a tad defensive in this essay.
As noted previously, Hamilton is a strong defender of executive power, so he is ready and eager to explain to readers the important principles informing his view. He has two tasks – first, reassuring readers that the powers of the Presidency are not extreme, and the nation’s executive will not become a monarch. Second, that to the extent the President has power to act unilaterally, it is in situations where government by committee would be intolerable. There’s a tension between these two tasks that is evident from Hamilton’s first sentence:
“THE President of the United States is to be “commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States.” The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it.”
But is the power as commander-in-chief really “so evident in itself?” The commander-in-chief power has been invoked in recent years to justify unilateral warmaking power by the Executive. Critics of that argument note that in fact the power to declare war belongs to Congress, and is thus not solely within the President’s ambit.
In modern times, there are many foreign entanglements that involve our armed forces but aren’t “wars.” To be sure, the President’s ability to send American troops into combat would not mean much without a standing army — an institution the Federalists promised would not come to pass. What powers should the President have in these limited engagements — today? Should Congress be able to undo Presidential deployments, or condition them on Congressional approval, such as in the War Powers Act? When the President and Congress disagree, who decides which side wins? Do we really want the Supreme Court involved?
Hamilton also raises and defends the Presidential power of the pardon. Hamilton argues that the pardon is necessary to temper the severity of criminal law, and the President is the best positioned individual to grant it – and be held accountable to the people for having done so. In language that probably seems a little odd to us today, Hamilton observes that the pardon will help preserve domestic tranquility, even in cases of treason:
“On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”
Again, this is a striking passage that should remind us all of the tenuousness of the new nation, and the feeling among the founders that this experiment could quite easily go wrong. I was reminded of this when looking over the ratification timeline in preparing this blog. I had forgotten that as a precondition to entering the nation, Vermont had to enter into a peace treaty with New York.
To me, that sounds like a premise for a comedy, perhaps with Ben and Jerry declaring independence from the United States and commissioning a new national anthem from Phish. But at the founding, tensions between states were no laughing matter. The legacy of violence and mistrust was real. In fact the first use of the pardon was for participants in the Whiskey Rebellion, for Washington perhaps sensed the need for just such a “welltimed offer of pardon” to “restore the tranquillity of the commonwealth.”
The Presidential pardon in modern times has had a mixed record. The Department of Justice typically makes clemency recommendations to the President, but the President is not bound to follow them. President Gerald Ford’s pardon of Richard Nixon (before indictment or conviction for anything) may have spared the nation an ugly incident, but also may have cost Ford his reelection in 1976.
Critics accused President Clinton of rewarded a campaign supporter by pardoning fugitive financier Marc Rich. Classes of individuals have been pardoned too, most notably all Confederate soldiers, and all Vietnam draft dodgers. Hamilton correctly observed that the pardon, as an aspect of law enforcement, could mollify and temper the force of criminal law.
But it is less clear to what degree Hamilton could see – or wanted to acknowledge – the Presidential pardon as a political favor.
Allison Hayward is the Vice President of Policy at the Center for Competitive Politics