Sunday, September 17, 2017

Kind of what I've been saying....

“The pardon is invalid and unconstitutional because it has the purpose and effect of eviscerating the judicial power to enforce constitutional rights.”

From an amicus brief filed with the trial court in the Arpaio case submitted by the MacArthur Justice Center at the Northwestern Pritzker School of Law.  And, taking dead aim at Ex Parte Grossman:

A group of teachers, human rights lawyers, and legal scholars, in a brief filed by Erwin Chemerinsky, Michael Tigar, and Jane Tigar argues the pardon was unconstitutional as it exceeded the authority granted the president in the Constitution. The brief cites Madison, in Federalist 45, guaranteeing that the Constitution would renounce the “impious doctrine in the Old World, that the people were made for kings, not kings for the people.” Urging that there is a distinction between offenses prosecuted by the sovereign, which may be pardoned, and punishments imposed by courts to protect individual rights, they argue that Arpaio’s victims have a right—rooted in Article III of the Constitution—to have their claims adjudicated, and to receive a remedy enforced by a court. These scholars conclude:

"No President till now has proclaimed that a public official who violated the Constitution and flouted court orders was ‘doing his job.’ The purported pardon is an attempt to exercise a power that even the King of England did not possess in 1787."
And back to what I've been saying, although with specific reference to the due process of laws, another brief notes:

If the President may employ his pardon power to relieve government officers of accountability and risk of penalty for defying injunctions imposed to enforce constitutional rights, that action will permanently impair the courts' authority and ability to protect those inalienable rights. The result would be an executive branch freed from the judicial scrutiny required to assure compliance with the dictates of the Bill of Rights and other constitutional safeguards. 
Now we just have to see if those ideas carry any weight in court.

1 comment:

  1. This brought to mind this passage from "James Madison and the Bill of Rights: A Reluctant Paternity"

    by Paul Finkelman who, I have to say, is becoming one of my favorite living historians as I read more of his papers.

    "[George] Mason had other objections to the Constitution. He disliked the commerce power, the treaty-making provisions, the continuation of the African slave trade for at least twenty more year, and the power of the President to grant pardons, especially to "those whom he had secretly instigated to commit" crimes and "thereby prevent a discovery of his own guilt." These complaints about the Constitution were magnified by the lack of a bill of rights. Mason feared that the Senate and President would combine "to accomplish what usurpations they pleased upon the rights and liberties of the people," of the several states."

    I think the anti-federalists provide a lot of valuable insights into just how bad some of the things that are causing us trouble today really were known to be at the time. The opposition of, especially, many of the big names of federalism, to a bill of rights and how Madison only took a role in its adoption because he had to be get the Constitution with all of its slavery and aristocratic enhancements passed shows how shaky the whole thing is. The realistic view of American history as a series of many, often violent, objections to the status quo of the American government, the struggle to expand equality and of the constant violence both permitted under the Constitution - slavery, inequality, discrimination, economic injustice - and it maintaining that status quo is necessary to making any real change to it.