Sunday, January 18, 2009

How Should an Originalist President Pardon?

The culmination of a presidency marked by as expansive a view of executive power as that of George W. Bush should be an expansive exercise of that most unchecked of executive capacities, the power to pardon, shouldn’t it? As the days of Bush’s time in office draw rapidly to a close, speculation mounts about whether he might pardon actors from his administration, including Vice President Dick Cheney himself or others, before they have even been indicted for any offenses. If, however, Bush wishes to remain faithful to another tenet of his administration—the endorsement of originalism in the justices and judges whom he has appointed—he would do well to impose some limitations upon his own exercise of the pardoning power.

The capacity to pardon is perhaps that which most closely ties the U.S. president to an earlier line of English monarchs. Under Article II of the Constitution, the president has “power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” As long as the underlying offense is federal, and an impeachment is not in question, the Pardon Clause leaves little recourse to Congress to circumscribe the conditions under which the president may furnish pardons or limit the identity of those pardoned. Because the Pardon Clause specifically delegates the power to pardon to the president, courts would also be likely to consider most challenges to presidential grants of pardon to be nonjusticiable political questions.

Nevertheless, if Bush endorses an originalist model of presidential—as well as judicial—constitutional interpretation, two English statutes and subsequent commentary upon them suggest that he ought to impose constraints upon his own pardons. Seventeenth-century English pamphlets, as well as William Blackstone’s influential Commentaries on the Laws of England, and writings of members of the founding generation refer approvingly to the limitations upon the pardon power derived from a fourteenth-century statute in the reign of King Richard II and a seventeenth-century law passed during the reign of King Charles II.

In the first of these pieces of legislation, 13 R. 2 st. 2 c. 1, King Richard II, maintained his absolute right to decide on a pardon yet simultaneously agreed not to allow any charter of pardon for “murder, or for the death of a man slain by await, assault, or malice prepensed, treason, or rape of a woman, unless the same murder, death of the man slain by await, assault, or malice prepensed, treason, or rape of a woman, be specified in the same charter.” Later glosses on this statute emphasized that the purpose of pardoning was to remit punishment, but not to allow offenses to be smothered before coming to light at all.

The second piece of legislation, 31 Car. II c. 2, sometimes known as the Habeas Corpus Act of 1679, is a statute reaffirming the writ of habeas corpus and providing stringent penalties for attempts to thwart the workings of the writ. In this statute, Parliament specified that anyone who unlawfully transported a person out of the realm for imprisonment or other purposes would be subject to severe punishment and not be able to avail themselves of a royal pardon. Subsequent commentary confirms that this law was aimed at reigning in the excesses of the use of the royal prerogative and at preventing the King from simply pardoning after the fact those who violated the procedural safeguards provided by the writ of habeas corpus.

Under this logic, anyone who participated in the extraordinary rendition of persons within the United States to locations abroad should not be able to avail themselves of the benefits of a presidential pardon. Furthermore, as the statute of Richard II suggests, pardons for serious offenses ought not to be issued without a specification of precisely what is being pardoned. Although the power of pardoning has, at previous moments, been effectively deployed as part of a strategy for achieving peace for the future, its scope cannot encompass simply obliterating the past. The American public, just as much as the English subjects of the fourteenth century, have a right to know that President Bush is aware of exactly what he is pardoning, and that both he and the electorate are fully cognizant of the events that have occurred.

Thursday, January 8, 2009

The Persistence of a Legal Fiction

I just finished writing an exceedingly brief review of Bradin Cormack’s A Power to Do Justice: Jurisdiction, English Literature, and the Rise of Common Law, 1509-1625 for Law and History. As often occurs, the limitations of the allocated space precluded discussion of many aspects of what I found to be a masterful book. Cormack’s work demonstrates the significance of seemingly technical problems of jurisdiction to the construction of sovereignty in early modern England, transcends a number of the critiques levied against scholarship in law and literature, and reveals how sophisticated readings of literary texts can contribute to legal history. In addition, A Power to Do Justice strikes a number of notes of contemporary relevance. One, in particular, suggests that the approach to legal fictions in seventeenth-century England might not be all that different from at least some attitudes toward them today.

The final chapter of Cormack’s book situates the 1624 play A Cure for a Cuckold, produced by a collaboration among John Webster, William Rowley, and John Heywood, within the context of common law and ecclesiastical courts’ treatments of the status of a child born within marriage who appears not to be the offspring of the marital father. This was, of course, the situation contemplated in the U.S. Supreme Court case of Michael H. v. Gerald D. (1989). In his opinion, Justice Scalia, writing for a plurality of the Court, relied in part on the common law presumption of the paternity of a marital father to uphold a California statute of similar substance against the substantive due process claims of Michael H. to a declaration of paternity and a grant of visitation rights, even though a blood test had suggested a very high likelihood that the child at issue was actually his. As Scalia’s opinion observed, “[w]e have found nothing in the older sources, nor in the older cases, addressing specifically the power of the natural father to assert parental rights over a child born into a woman’s existing marriage with another man” (125). Had the range of materials deemed relevant included plays as potential precedents, Scalia might have been able to adduce additional justifications for the outcome from A Cure for a Cuckold.

What renders the resemblance between A Cure for a Cuckold and Michael H. particularly intriguing is that, in both instances, the conventional justifications for the common law principle do not hold. The common law presumption and its statutory successors were not absolute, but, at the same time, they contained only limited exceptions; as Cormack summarizes these, first, “a husband’s impotency or inability to procreate undermines the presumption of legitimacy,” and, second, “legitimacy was measured along the axes of geography and time,” so that, quoting Sir Edward Coke, a husband was required to have been “within the four Seas, that is, within the Jurisdiction of the King of England” (295). Three principal rationales appear to have supported the common law approach. First, the rules prescribing inheritance through a paternal line, including primogeniture, increased the stakes of declaring a marital child illegitimate—and, hence, unable to inherit. Second, in the absence of a definitive mechanism for establishing the biological relation between father and child, the common law presumption helped to ensure that unreasonably suspicious or simply unreasonable husbands could not renounce their heirs. Finally, the common law approach encouraged the maintenance of marital harmony.

None of these rationales appear particularly compelling in either A Cure for a Cuckold or Michael H. Furthermore, both cases press the legal fiction upon which the common law presumption is premised to its breaking point. The question that Cormack views as the crux of A Cure for a Cuckold could as well be asked of Michael H.: “[W]hat does the law look like when it goes beyond even the common law’s own impressive fiction-making?” (297-98). The obsolescence of the rigid English structures of inheritance law renders the first rationale inapplicable to Michael H.; it is not, however, compelling even in A Cure for a Cuckold, because the biological father, Franckford, is identified as a rich merchant, and has, in the absence of Compass, the marital father, been providing amply for the child and even arranged for him to inherit land. Furthermore, the blood test establishing a more than 98% probability that Michael H. had fathered Victoria, the child involved, indicates the decreased necessity for caution about potentially false claims of illegitimacy; on the other hand, because Compass had been out of the realm not only for at the time of delivery but also at that of conception, it would have been virtually impossible for him to have fathered his wife's child—as a boy informs him on his return, “You know ’tis four year ago since you went to sea, and your child is but a quarter old yet” (II: iii: 35-36). In addition, in neither scenario did the simple fact of illegitimacy seem to prove detrimental to marital harmony. In Michael H., the mother, Carole, had not always remained with her husband, Gerald D., but had even lived with Michael H. briefly; similarly, in A Cure for a Cuckold, Compass seems hardly unaware of the circumstances that would have led a child to be born during his prolonged absence.

Nevertheless, in each instance, the common law presumption is upheld. The protagonists of A Cure for a Cuckold, like the individuals involved in Michael H., actually litigate against each other; although the judge initially is firm in favor of Franckford’s position based upon the civil law, Compass quickly persuades him to reverse his position and rest his decision on the common law. Despite the stretching of the legal fiction to a point of extreme implausibility, the common law rule remains forceful, asserting the power of a paternity that is not biological but instead constructed. In A Cure for a Cuckold, though, unlike in Michael H., the biological father is at least given the ability to visit the child; as Compass tells Franckford towards the end of the play, “And for your part, father,/ Whatsoever he, or he, or t’other says,/ You shall be as welcome as [before]” (V: i: 426-28). Whatever the law may say, it doesn’t always have the last word.