THE DECLARATION OF INDEPENDENCE opens with a vision, a panorama of the impossible—“all men are created equal”; “life, liberty, and the pursuit of happiness”; “the consent of the governed.” The Constitution replaced the Articles of Confederation “in order to form a more perfect Union” and bring those ideals closer to reality. But the Founders knew that would not be easy.
When Benjamin Franklin and James McHenry left on the final day of the Federal Convention, they were approached by Mrs. Powel of Philadelphia.
“Well, Doctor, what have we got—a republic or a monarchy?”
“A republic,” Franklin replied, “if you can keep it.”
Alexander Hamilton notes the difference in how power is allocated in a monarchy and a republic.
“It is evident, therefore, that, according to their primitive signification, they have no application to constitutions, professedly founded upon the power of the people and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations, “WE THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” (The Federalist Papers, No. 84; emphasis his)
Means and ends are paramount. “This Constitution…shall be the supreme law of the land…, any thing to contrary notwithstanding.” All acts are to be taken “in pursuance thereof.” (Article IV, Clause 2)
The oath requires the President of the United States to “faithfully execute the office” and “preserve, protect and defend the Constitution.” (Emphasis added) Furthermore, the Chief Magistrate must “take care that the laws be faithfully executed.” (Emphasis added) In respect to the supreme law of the land, those duties are performed “faithfully” when they are “in pursuance thereof.” Thus, all the powers of the Presidency are to be used for the benefit of the Republic.
The courts—“whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void”— were created to “establish justice.” (Alexander Hamilton, The Federalist Papers, No. 78 & Preamble) Thus, Judges are the “faithful guardians of the Constitution.” (Alexander Hamilton, The Federalist Papers, No. 78) In showing how, Hamilton confirms that a monarchy is one thing, a republic another.
“There is no position which depends on clearer principles then that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void…. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” (The Federalist Papers, No. 78)
Meanwhile, confusion reigns and clouds the judgment of others. For the press, politicians, and pundits spoke of the power as “plenary” and “absolute” from the moment the gentleman from New York claimed he had “the complete power to pardon”—including Himself. Remarks that should have been met with laughter and greeted with contempt had legitimacy bestowed upon them. But assertion and repetition do not equal truth.
The pardon power may be used, Hamilton tells us, “to attend to the force of those motives which might plead for a mitigation of the rigor of law”; and “in seasons of insurrection and rebellion, there are often critical moments when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth, and, which if suffered to pass unimproved, it may never be possible afterwards to recall.” (The Federalist Papers, No. 74) The first would be a check on the judiciary and “establish justice.” The second would “insure domestic tranquility.” (Preamble) Thus, in respect to the supreme law of the land, they are in “in pursuance thereof.” (Article VI, Clause 2)
At the Virginia Ratifying Convention, George Mason expressed concern.
“Now, I conceive that the President ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic.”
Citizens, beware!
Such an attempt is linked to “a long train of abuses and usurpations, pursuing invariably the same object” because the Constitution prohibits the granting of titles of nobility; and, therefore, becoming a king, who “evinces a design” as did George III, “to reduce them under absolute despotism,” is out of the question. Such has been the patient sufferance of these States; and such is now the necessity which constrains them to alter their former attempts at correction. The history of the shallow man who would be king is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these States. To prove this, let facts be submitted to a candid world.
He never intended to win, for according to his personal attorney, the campaign was an infomercial.
He called upon a foreign power—the very power with whom he had business dealings—to help him in the election, and the assistance was immediately provided.
He has, by
word and deed, consistently favored that power.
He was offered assistance for divestiture of his holdings and placing them in Treasury securities to avoid foreign influence, and he refused.
He has used pardons as part of a conspiracy to obstruct justice.
He has excited domestic insurrections amongst us.
And all of his efforts are directed toward maintaining power.
In every stage of these oppressions we have petitioned for redress in the most humble terms: Our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.
In a republic, power obtained through illicit means cannot be valid. For the assailant eats the fruits of the poisonous tree. And a court of justice need only state the obvious—that the ends are void.
(c)2020 Marvin D. Jones. All rights reserved.
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