The Benign Prerogative: Political Theory and Executive Pardoning

• In Event: Assessing the Limits and Character of American Institutional Powers

Abstract

Acts of clemency are rarely analyzed extensively in broader studies of prerogative although John Locke, William Blackstone, and many framers of the United States Constitution all consider pardoning to be a form of prerogative. Drawing on John Locke’s Second Treatise of Government, William Blackstone’s Commentaries on the Laws of England, and James Madison’s Notes of Debates in the Federal Convention, this paper argues that pardons should be studied as an important example of prerogative. Pardoning helpfully illustrates how exercises of prerogative are necessary to restore rule of law. Moreover, pardoning is a distinctive type of prerogative constantly necessary but unlikely to displace rule of law. Thus, comparative analysis of pardons and other exercises of prerogative can clarify what precisely causes other exercise of prerogative to endanger rule of law.

Author

• Isabelle Thelen, Baylor University