Document Type

Article

Publication Date

2017

Abstract

Contrary to much commentary and possibly some seemingly settled law, this essay argues that an American President (or a similarly situated state officer or office) may issue individual and "blanket"-or mass-clemency benefiting classes of named or unnamed individuals, and in addition may pardon himself, but only if doing so comports with the principles of fundamental fairness that define due process of law under the Constitution's Fifth and Fourteenth Amendments. Accordingly, the Constitution permits acts of clemency to foster mercy, compassion, and forgiveness, or to promote the purported best interests of the nation, or even to further an executive's political advantages, unless such clemency is arbitrary, capricious, or otherwise contrary to justice and liberty, and thus unconstitutionally unfair.

Specifically, this article proceeds as follows: Part II presents the meaning of due process of law, accenting that, pursuant to the Due Process Clauses, all actions of whatever kind taken by any office or agent of government must be moral; meaning that official conduct may not be arbitrary, capricious or otherwise violate recognized tenets of fundamental fairness. Although not so acknowledging, the Supreme Court's definition of fundamental fairness is based on concepts of human dignity espoused by the Enlightenment moral philosopher Immanuel Kant. This article's understanding of constitutional law is controversial but based on the author's long-standing research that confirms "due process of law's" inextricable link to principles of immutable, a political morality discerned through impartial reason and applicable regardless of what outcomes may occur.

Part III briefly sets forth relevant constitutional aspects of executive clemency, including the legal requirement that acts of clemency comport with the strictures of due process of law. Part IV then explains why governmental chief executives including the President may self-pardon, issue blanket pardons, or do both so long as those actions and similar grants of clemency comply with applicable due process standards. As is traditional, this writing ends with a brief conclusion, herein Part V.

Publication Citation

9 Faulkner L. Rev. 95 (2017).

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