Originalists and historians should not be in conflict, so why is fruitful collaboration so rare?
Recently, the question whether the President can pardon himself has been in the news. I have always found that to be a difficult question. But unfortunately the framing of the question these days often leads people to misunderstand the issue.
The Pardon Clause provides the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” Defenders of the view that the President can pardon himself argue that there is no limitation on the pardon power in the text of the Constitution. They further argue that the explicit exception for cases of impeachment shows that no other exceptions are allowed.
This textual argument is then contrasted with a nontextual argument against presidential self pardons. For example, Laurence Tribe, Richard Painter and Norman Eisen argue that the traditional common law principle that no person may be a judge in their own case shows that the pardon power does not cover self pardons. But this principle does not appear to be in the constitutional text. So we are left with an apparent dispute between a strong (or hyper) textualism and an apparent non-textualism.
In my view, this is not really the issue. Let’s start again. The textual argument in favor of self pardons assumes that the pardon power means the “power to pardon any person.” But it is not clear that it does. If one wants to understand the pardon power, the first place to look is the pardon power under the English law that the colonists inherited and that the Framers took as the precursor to American law.
Could the King pardon himself? That is a hard question. On the one hand, it appears that the King was thought to be immune from legal process and therefore the power to self pardon was unnecessary. On the other hand, perhaps the King still had this power, but it was simply unnecessary to use. Since it is not obvious which of these understandings is correct, the pardon power is unclear. Thus, the question isn’t one of text versus non-text, but of what the text, which was based on historical terms, meant.
Moreover, it is even possible the apparently non-textual principle “that no person may be a judge in their own case” might be relevant. Suppose that the pardon power might have had two meanings – one where the King could self pardon and one where he could not. In choosing between the two meanings, it is perfectly legitimate to consider a well-accepted common law principle. Such principles were used at the time of the Framing to resolve ambiguities. This principle may even have wider application. If it was unclear what the pardon power meant – there were not two distinct usages, but just a lack of clarity about what the power meant as to the issue of self pardons – then it is likely that an interpretive rule also allowed a traditional principle to resolve the uncertainty.
After writing most of this post, I came upon Mike Ramsey’s post on the same issue. I was very happy to see that Mike had a very similar take upon the matter. It is good to see that modern originalist analysis has a core.