In discussions of President George W. Bush's proclamation on Jul. 2, 2007, to commute I. Lewis "Scooter" Libby's prison sentence, we are told again and again by commentators in the media that the power of the president to pardon crimes against the United States and commute sentences is absolute. -- Thus: "The power [to grant reprieves and pardons] is absolute," says John Van Deerlin ( Bend [OR] Weekly, Jun. 15, 2007). -- "Since clemency powers under the constitution are absolute, all lawmakers can do speak out against it," says George McGinn of AHN. -- ". . . an absolute Presidential power that is beyond Congressional review," says John Bambenek. -- "This power is absolute, and a pardon may not be blocked by Congress or the courts," say Ron Hutcheson and William Douglas of McClatchy Newspapers ( The State [Columbia, SC], Jul. 4, 2007). -- While this is technically true in the sense that no one can reverse a presidential pardon, it is important to note that James Madison, often called the Father of the Constitution, said explicitly on Apr. 6, 1796, that under the U.S. Constitution there is, after all, recourse available for the abuse of this power: impeachment.[1] ...
1. [From "Speech in Congress on the Jay Treaty," in James Madison, Writings (New York: The Library of America, 1999), pp. 574-75. Source: The Papers of James Madison, vol. 16 (Charlottesville: University of Virginia Press, 1989), pp. 291-306).] ". . . He [i.e. Madison] wished as little as any member could, to extend the analogies between the two governments [i.e. of the United States and of Great Britain]. But it was clear that the constituent parts of two governments might be perfectly heterogeneous, and yet the powers be similar. At once to illustrate his meaning, and give a brief reply to some arguments on the other side, which had heretofore been urged with ingenuity and learning, he would mention as an example, the power of pardoning offences. This power was vested in the President. It was a prerogative also of the British king. And in order to ascertain the extent of the compound and technical term 'pardon' in our constitution; it would not be irregular to search into the meaning and exercise of the power in Great Britain; yet where is the general analogy between an hereditary sovereign, not accountable for his conduct, and a magistrate, like the President of the United States, elected for four years, with limited powers, and liable to impeachment for the abuse of them."
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