Luke Skywalker and the United States Constitution

Conor Friedersdorf thinks the Left has made a huge mistake in abandoning the pure libertarian position on the freedom of political speech. At least, he thought so as of last week, before the pardoning of Joe Arpaio.

Donald Trump's pardon of Joe Arpaio, as Mr. Friedersdorf himself has pointed out, along with many other able commentators, has a real potential to unravel the rule of law. The presidential power of pardon has few specific limits, but the United States Constitution certainly never intended it to permit the President to undermine a prosecution, much less a law, the president simply disapproved of. The specific pardon of Mr. Arpaio, whom President Trump pardoned for offences related to civil rights violations, makes the situation more troubling. Issuing a pardon for someone who has never expressed regret or admitted wrongdoing means one of two things: either the President believes the court made a serious error of fact, or he condones the offence. If officials with the power to pardon violators actively condone civil rights violations, they effectively strip some, and in the end all, members of the community of their civil rights.

This illustrates what I call the Skywalker rule of constitutions: like the death star, every written constitution has to have a relief port.

In this case, the power of the pardon permits a President (or, in its original incarnation as the Royal Prerogative of Mercy, the Sovereign) to act when the rigid application of a generally fair law would produce an injustice, or when the courts make an egregious error. The power of the pardon exists to permit inflexible laws to adapt to human realities. No drafters of a constitution can know, in advance. all of ways in which the law will collide with the lives of individuals, so they must make the power of the pardon elastic. Like the designers of the death star, who could not include a reactor relief port that would both work and have effective shielding, the designers of a constitution must design flexibility into the power of the pardon. Like the relief port, which can cause real trouble if the rebels find out about it, the power to pardon has a real potential for abuse by an unscrupulous president.

This raises a disturbing question: does the function of any democratic constitution, however ancient and prestigious, depend on the probity of those charged with protecting and implementing it? The history of the United States Constitution contains surprisingly little grounds for optimism. Constitutional guarantees, and indeed a specific Supreme Court ruling did not prevent Andrew Jackson's ethnic cleansing of the Cherokee, nor did constitutional guarantees protect the descendants of Japanese immigrants during the second world war. The record appears to indicate no constitutional provision can replace individual ethics on the part of political leaders.

Voters, of course, select the leaders. This raises a further question: do voters behave less responsibly when they believe constitutional guarantees protect them? Economists call this moral hazard: when people think something protects them, they take more risks. The plural of anecdote is not data, but I have read many statements by people who claim they voted for President Trump just to shake things up. I wonder if those people would have done so if they did not believe the constitution protected them against truly dangerous or unethical behaviour, regardless of who they voted for. If that is the case, the constitutional rights guarantees in the American constitution may have led, by a perverse but predictable series of events, to a very dangerous pass for the freedoms of Americans.