How Presidential Pardons Work

By: Patrick J. Kiger  | 

The Origins of the Presidential Pardon

Alexander Hamilton (third from left) and the other Founding Fathers (from left John Adams, Gouverneur Morris and Thomas Jefferson) recognized the value in using pardoning power as a tool to govern. Universal History Archive/Universal Images Group via Getty Images

The presidential pardon is based on the Royal Prerogative of English Kings, which gave the king the ability to overturn any sentence. Originally, the king's prerogative existed without any limitations attached to it. But during the reign of King Charles II (1660-85), the English Parliament managed to institute the single rule that impeachment was excluded from the pardon power. This rule lives on today [source: Duker].

When the Founding Fathers were developing the laws for the United States in the late 18th century, the power to pardon almost didn't make it into the Constitution. In fact, it was barely considered. Two plans, the Virginia Plan and the New Jersey Plan for framing the Constitution, did not include the power to pardon. One of the Virginia Plan's backers, George Mason, believed it was a mistake to grant such power to a single person. Having just revolted against King George III, whom many Americans considered a tyrannical king, many of Mason's fellow framers agreed with him [source: Buffa].


But Alexander Hamilton, who believed in a large, powerful, centralized federal government made up of the elite thinkers of the nation, was able to bring the other framers of the U.S. Constitution around to his way of thinking.

In No. 74 of his "Federalist Papers," Hamilton extolled the value of a pardoning power:

In seasons of insurrection or rebellion, there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.

Hamilton, and eventually the other framers, saw the value of investing in the president the ability to — at a moment's notice and without the consent of any other branch of government — grant reprieves to groups during periods of national crisis. It was reasoned that some crises could be allayed or overcome if the belligerents could be given a deal forgiving them for their trespasses.

Almost no sooner than the ink on the Constitution was dry, this ability was needed. When farmers in Pennsylvania revolted in 1794 against federal taxes levied on their corn crops, the Whiskey Rebellion was born. President George Washington used the power to pardon for the first time in United States history to forgive the revolting farmers for their insurrection against the young nation. The action worked and the rebellion was quieted [source: Hagen]

The pardon has since been used in this original intent several times. Andrew Johnson used the pardon to redeem Confederate soldiers after the Civil War [source: Glass]. And to help end the Vietnam era, President Jimmy Carter offered a blanket pardon to any American who had dodged the draft during the Vietnam War [source: Frost].

There have been cases where Congress has considered introducing bills that limit the president's pardon power or allow oversight of pardons. Every last one of these bills failed. Why? Because the president's power to pardon is guaranteed by the Constitution; it's in the actual original document, not just the Bill of Rights. Plus, it's a long-standing and time-honored traditional power granted to the leader of a country, and a useful one, as we will see. Finally, the judicial branch, viewing the pardon power as a part of the Constitution has served to protect it more often than not [source: Shanor and Miller].

In the 1974 case, Schick v. Reed, the Supreme Court decreed that "the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself" [source: Justia].