Constitutionalized Prerogative and the Pardon Power

Abstract

Scholars continue to debate whether Lockean prerogative is better understood as operating within the constitutional framework, as constitutionalists would argue, or outside of it, as the extraconstitutionalists would argue. However, this debate has largely taken place in the abstract, with few concrete examples of prerogative brought to bear in the analysis. In this article, I utilize the presidential pardon power as a means to scrutinize the ongoing debate; in particular, I review the development and utilization of the pardon power since the founding of the United States and the more recent allegations of abuse and limitations on restraint. I argue that the pardon power is an explicit example of the constitutionalist understanding of prerogative and that, as such, the extraconstitutionalist view of prerogative is preferable.