A Proposal For The 28th Amendment To The Constitution of the United States of America
Because enough is enough.
In case you’ve been living under a rock, here’s why I’m angry enough to finally take the time to write out an idea for constitutional reform that I’ve been thinking about for years.
This is not the first time we’ve seen an obviously bad pardon in American history, but they seem to be happening with an increasing amount of frequency.
Regardless of your political affiliation, there’s lots for you to hate about all of this. But as it stands the pardon power, a holdover from the power of the monarch, is essentially without limit in its domain. Yes, the President cannot touch state convictions. But at the federal level, pardons are supreme.
It is increasingly obvious that this is bad. So, we should change it. Unfortunately, this requires a constitutional amendment, which will take a long time to enact and pass very high thresholds. Nevertheless I think the effort is worth it, and think the text below works at the very least as a starting point for further discussion.
Amendment To The Constitution of the United States of America
Section 1:
Any exercise of Presidential power to issue Reprieves, Pardons, Amnesties, and Commutations, save in the cases of reprieves of capital punishment, shall henceforth be subject to approval by a majority of both Houses of Congress.
Section 2:
Reprieves, Commutations, and Pardons may not be granted to a holder of the Office of President throughout such times that the Office is Held, nor can the holder of the Office of President fall under any Amnesty that he may grant.
Why should we pass this amendment?
I think there are some very convincing reasons why we ought to do this.
The legislative branch is meant to be the most powerful branch in the United States for small r republican and self government reasons. This amendment will not restore legislative supremacy, but is low hanging fruit in the direction of restoring it.
The capital punishment bit is basically there to ensure that nobody is executed just because Congress is out of town while reasonable evidence comes to light showing that someone on death row ought to be exonerated. I will lay my cards on the table and say I support the abolition of capital punishment, but this amendment is emphatically not trying to smuggle that in through the back door.
The idea of a legislative check on the pardon power was bandied about during the Constitutional Convention. They ultimately didn’t go for it, which I take to be a mixed opportunity. But the fact that there was live discussion of the matter shows that it probably wasn’t taken to be incompatible with the overall project they were trying to make.
Due to the thermostatic nature of American politics, outgoing presidents are highly likely to have a house of representatives held by the opposition party. This doesn’t mean that no pardons will happen. It will prevent them from pardoning loyalists and family members for all the wrong reasons. If you pardon remotely sympathetic people you can probably get bipartisan congressional support. Hunter Biden? Less so.
Section 2 exists to put to bed a question that has never been litigated, to my knowledge, in the entire history of common law systems. As far as I can tell there just is no answer to the question if the President can pardon himself or herself currently, so it is meant to resolve the matter. They cannot This wouldn’t touch the recent supreme court ruling by design. Likewise Presidents may still pardon former presidents if they can get the legislature on board.
Alright, but can actually do this? Really? An amendment in the year of our Lord 2024?
Maybe not. Passing a constitutional amendment is very hard. But I think Biden’s one genuine contribution to the health of the American experiment is that he’s created the ideal conditions for this to pass.
Republicans are rightfully salty about the Hunter Biden pardon, and thus may be convinced that we need to take proactive steps to prevent this from happening in the future.
Democrats are dreading the second Trump presidency, and so this move by the legislature would give them a check on constitutional authority.
At some point again within their lifetimes, members of each party are going to have deal with a president from the opposing party. Yes, the amendment will ideally go into effect as soon as possible, and so Trump might get restrained first. But I think republicans ought to be willing to make this trade off it means restraining a future President Newsom or President Buttigieg.
It would involve the legislature agreeing by a supermajority… to give more power to the legislature. Maybe this is a cause the legislature can rally behind? Stranger things have happened.
Above all, I would like to see the American republic not fade gently into that good night. This might be a small step in the right direction, but I’ll take what I can get. I am not a lawyer or legal scholar, so if someone who knows more about this wants to merely take this as a springboard and suggest something better, I’m all for it.