In deploying his pardon power freely and using the Bible to justify family separation, the president is exactly the sort of ruler that Enlightenment thinkers feared.
The heartbreaking scenes on the southern border seem a world away from recent presidential pardons. Sobbing children and bereft parents have nothing in common with Joe Arpaio, Dinesh D’Souza and, most recently, the Oregon ranchers Dwight Hammond and his son, Steven, who had been convicted of arson in 2016 and whom President Trump pardoned on Tuesday. Yet both come down to a relationship between justice and mercy that has a long history — and a cautionary moral for the president.
Family separation shows justice without mercy. The pardon power displays mercy in the name of justice. The administration cites the biblical injunction to obey the powers that be as one explanation for their zero-tolerance policy on immigration. With regard to immigration, it seems, there can be no discretion. By contrast, presidential pardons show how extensive discretion can be, because the Constitution gives the president “power to grant reprieves and pardons for offences against the United States, except in case of impeachment.”
.. Most Enlightenment thinkers were uneasy about the pardoning power. The two greatest oracles for the Constitution’s framers, the French philosopher Montesquieu and the English lawyer William Blackstone, both attacked it. “Clemency is the characteristic of monarchs,”
.. The framers argued that “without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel,” as Alexander Hamilton argued in Federalist No. 74. This was particularly true in “season of insurrection or rebellion,” Hamilton continued, “when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.”
.. With the ratification of the Constitution, George Washington received an array of powers many European monarchs might have envied. The president could veto legislation — something no British monarch had done since 1707
.. He has used the pardoning power as one of his few unfettered prerogatives, in just the undemocratic way Enlightenment thinkers feared. For them, authority flowed from the people, not from God; the pardon was a residue of divine right. When Attorney General Jeff Sessions cites Paul’s epistle to the Romans to justify family separation, he not only revives an argument used to defend absolutism and slavery but also implies there is still a power above the law defined by the Constitution.
.. The president can casually exercise his discretionary power to pardon Mr. Arpaio, who abused prisoners in his care, but then claims he is powerless to end a policy worthy of Sheriff Joe himself.
Anthony Kennedy’s Imperial Legacy
In the American republic’s slow transformation into a judicial-executive dyarchy, with a vestigial legislature that lets the major controversies get settled by imperial presidents and jurists, Anthony Kennedy occupied a particularly important role.
He was appointed to the Supreme Court at a time when the Republican Party was officially interested in curbing judicial activism and restoring power to the elected branches of government. As the court’s swing vote, though, he instead consolidated the judiciary’s imperial role — taking the expansive powers claimed by judicial liberals in the Warren era and turning them to his own purposes, his own vision of the common good.
He did this without a particularly coherent constitutional theory
.. showing neither humility nor rigor in his ultimate decisions
.. overruling state and federal law more frequently than any justice to his right or left, pontificating in sweeping and self-righteous and faux-poetic prose
.. seeking to establish the court as the decisive and unifying authority for a sprawling and divided country.
.. Without being a completely consistent libertarian, he was a general champion of freedom
.. Kennedy was the modern court’s most “neoliberal” justice, embracing corporate freedom and sexual freedom as a kind of unity, attacking restraints on campaign spending and mandates to buy health insurance in the same spirit as restrictions on pornography or flag-burning or abortion.
.. I admired Scalia’s originalism precisely because it establishes plausible (if, of course, debatable) limits on judicial activism
.. Even when he was right on the merits of an issue, he was still too aggrandizing, too eager to impose his own judgment, too quick to short-circuit legislative debates.
.. what he delivered was, in some sense, what both the political class and the public increasingly desire from their government: not republican deliberation but quasi-monarchical action.
.. judicial activism increasingly fills the empty space created by legislative sclerosis and political cowardice
.. unwillingness of elected representatives to act on controversial issues.
.. tried to act as the “good emperor” that our decadent system and polarized country may require — by balancing his own liberal rulings on abortion and same-sex marriage, for instance, with subsequent decisions that allowed some space for pro-life activism and protected some religious liberties against the anti-clericalism of the left.
.. even if you accept that our country increasingly craves a kind of stabilizing central power, Kennedy’s freedom-first synthesis did not succeed in supplying it.
.. Instead, our age of opioids and suicide and sterility, and the heartland populists and Bronxian socialists that anomie has conjured up, strongly indicates that his neoliberal model needs correction — that the freedom of capital and genitals is not enough for human flourishing, that community and solidarity need to have their day, even if it comes at the expense of certain liberties and transcendentalist idylls.
.. John Roberts, Kennedy’s likely successor as our First Archon, is better suited than his predecessor to the imperial task. We know that Roberts is more temperamentally cautious than Kennedy
.. he’s both more friendly to religious conservatism (witness his Obergefell vote) and more willing to
let social-democratic policymaking stand (witness his vote to save Obamacare).