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The Politics of Clemency in the Early American Presidency: Power Inherited, Power Refashioned

Published online by Cambridge University Press:  10 February 2022

BRADLEY D. HAYS Open the ORCID record for BRADLEY D. HAYS [Opens in a new window]
BRADLEY D. HAYS*
Affiliation:
Union College, USA
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Abstract

This article presents case studies of pardons in the presidencies of Washington, Adams, and Jefferson. In doing so, the article moves away from the idea in existing scholarship that pardons of the past were largely noble acts of statecraft, untouched by ideological, partisan, or personal political motivations. Instead, it develops an account of how and why these pardons should be understood as both enabling presidents to achieve certain political objectives and, simultaneously, operating in an inherited environment in which presidents used existing resources to legitimate their pardons. In so doing, presidents refashioned those inherited resources and, thereby, created new resources for future presidents. The picture that emerges is of pardons as both sources of political innovation and political constraint.

Keywords

Clemency in the early U.S. republicpardon policypardon politicsU.S. Constitution Article II, Section 2Whiskey RebellionAlien and Sedition Actsearly American presidency
Type
Article
Information
Journal of Policy History , Volume 34 , Issue 1 , January 2022 , pp. 91 - 115
Copyright
© Cambridge University Press 2022

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Footnotes

I am indebted to Austin Sarat and Cliff Brown who both read an early draft of this manuscript and made important suggestions in developing its central ideas. Thanks to Paul Frymer who provided thoughtful and encouraging advice, which led to the article’s current form. Special thanks to the anonymous reviewers at the Journal of Policy History for their excellent insights and advice. The manuscript is stronger because of their counsel.

References

NOTES

1. Crouch, Jeffrey, The Presidential Pardon Power (Lawrence: University Press of Kansas, 2009)Google Scholar; Moore, Kathleen Dean, Pardons: Justice, Mercy, and the Public Interest (New York: Oxford University Press, 1997)Google Scholar; Duker, William F., “The President’s Power to Pardon: A Constitutional History,” William and Mary Law Review 18, no. 3 (March 1977): 475–38Google Scholar.

2. Levinson, Sanford, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It) (New York: Oxford University Press 2006), 24, 112–13Google Scholar.

3. For bibliographic essays of the legal literature, see Rozell, Mark J., “The Presidential Pardon Power: A Bibliographic Essay,” Journal of Law and Politics 5, (Winter 1989): 459–67Google Scholar; Crouch, Jeffrey, “The President and the Pardon Power: A Bibliographic Essay, 1989-2018,” University of St. Thomas Law Journal 12, no. 3 (2016): 413–45Google Scholar. For an extensive review of political science scholarship on executive clemency, see Ruckman, P. S. Jr. “The Study of Mercy: What Political Scientists Know (and Don’t Know) about the Pardon Power,” University of St. Thomas Law Journal 9, no. 3 (Spring 2012): 783–37Google Scholar.

4. Stephen Skowronek makes a similar point about the problems of periodizing the presidency, noting “the politics of leadership is neither as coherent within these periods nor as disparate across them as our current approach to the subject matter would suggest.” Skowronek, Stephen, The Politics Presidents Make: Leadership from John Adams to Bill Clinton (Cambridge, MA: Belknap Press of Harvard University Press, 1997), 7Google Scholar.

5. Several scholars have successfully employed large-N studies of the pardon issued during the twentieth century. See P. Ruckman, S. Jr. “Executive Clemency in the United States: Origins, Development, and Analysis (1900-1993),” Presidential Studies Quarterly 27, no. 2 (Spring 1997): 251–71Google Scholar; Morris, Mark, “The Overlooked Relevance of the Pardon Power,” in Presidential Frontiers: Underexplored Issues in White House Politics, ed. Barilleau, Ryan J. (Westport, CT: Praeger, 1998)Google Scholar; Whitford, Andrew B. and Ochs, Holona, “The Political Roots of Executive Clemency,” American Politics Research 34, no. 6 (November 2006): 825–46CrossRefGoogle Scholar; Erler, H. Abbie, “Executive Clemency or Bureaucratic Discretion? Two Models of the Pardon Process,” Presidential Studies Quarterly 37, no. 3 (2007): 427–48CrossRefGoogle Scholar. P. S. Ruckman, Jr. and David Kincaid break with the norm of looking at recent pardon episodes and employ this approach to Lincoln’s clemency, providing a series of interesting findings including that one-third of Lincoln’s clemency warrants were issued to offenders from border states and that public opinion appears to have been influential on Lincoln’s clemency decisions. See Ruckman, P. S. Jr. and Kincaid, David, “Inside Lincoln’s Clemency Decision Making,” Presidential Studies Quarterly 29, no. 1 (March 1999): 84–99 CrossRefGoogle Scholar.

6. See Rozell, Mark J., “President Ford’s Pardon of Richard M. Nixon: Constitutional and Political Considerations,” Presidential Studies Quarterly 24, no. 1 (Winter 1994): 121–37Google Scholar; Fisher, Louis, “The Law: When Presidential Power Backfires: Clinton’s Use of Clemency,” Presidential Studies Quarterly 32, no.3 (September 2002): 586–99CrossRefGoogle Scholar; Genovese, Michael and Almquist, Kristine, “The Pardon Power under Clinton: Tested but Intact,” in The Presidency and the Law: The Clinton Legacy, eds. Alder, David Gray and Genovese, Michael (Lawrence: University Press of Kansas, 2002), 75–88 Google Scholar; Crouch, Jeffrey, “Presidential Misuse of the Pardon Power,” Presidential Studies Quarterly 38, no. 4 (December 2008): 722–34CrossRefGoogle Scholar.

7. See Orman, John M. and Rudoni, Dorothy, “Exercise of the President’s Discretionary Power in Criminal Justice Policy,” Presidential Studies Quarterly 9, no. 4 (Fall 1979): 415–27Google Scholar; Adler, David Gray, “The President’s Pardon Power,” in Inventing the American Presidency, ed. Cronin, Thomas (Lawrence: University Press of Kansas, 1989), 209–35Google Scholar; Smith, Christopher E. and Johnson, Scott P., “Presidential Pardons and Accountability in the Executive Branch,” Wayne Law Review 35, (Spring 1989): 1113–31Google Scholar; Rozell, “President Ford’s Pardon of Richard M. Nixon,” Presidential Studies Quarterly; Morris, “The Overlooked Relevance of the Pardon Power,” Presidential Frontiers; Breslin, Beau and John, J. P. Howley, “Defending the Politics of Clemency,” Oregon Law Review 81, no. 1 (Spring 2002): 231–54Google Scholar; Genovese and Almquist, “The Pardon Power under Clinton: Tested but Intact,” The Presidency and the Law; Eksterowicz, Anthony J. and Roberts, Robert J., “The Specter of Presidential Pardons,” White House Studies 6, no. 4 (2006): 377 Google Scholar; Crouch, The Presidential Pardon Power.

8. Pederson, William D., “Amnesty and Presidential Behavior: A ‘Barberian Test,’” Presidential Studies Quarterly 7, no. 4 (Fall 1977): 175–83Google Scholar; Ruckman, P. S. Jr. “Presidential Character and Executive Clemency: A Reexamination,” Social Science Quarterly 76, no. 1 (March 1995): 213–21Google Scholar.

9. Ruckman, P. S. Jr. “Executive Clemency in the United States: Origins, Development, and Analysis (1900-1993),” Presidential Studies Quarterly 27, no. 2 (Spring 1997): 251–71Google Scholar.

10. Ruckman, P. S. Jr. “Seasonal Clemency Revisited: An Empirical Analysis,” White House Studies 11, no. 1 (2011): 21–38 Google Scholar.

11. “The President … shall have Power to Grant Reprieves and Pardons for Offences against the United States, Except in Cases of Impeachment.” US Constitution, Article II, section 2, clause 1.

12. Whittington, Keith E. and Carpenter, Daniel P., “Executive Power in American Institutional Development,” Perspectives on Politics 1, no. 3 (2003): 495–513 CrossRefGoogle Scholar, 508.

13. Benedict, Michael Les, “Constitutional Politics, Constitutional Law, and the Thirteenth Amendment,” Maryland Law Review 71, no. 1 (2011): 163–88Google Scholar, 164; Currie, David P., “Prolegomena for a Sampler: Extrajudicial Interpretation of the Constitution, 1788-1861,” in Congress and the Constitution, eds. Devins, Neal and Whittington, Keith (Durham, NC: Duke University Press, 2005), 18–38 Google Scholar.

14. Hamilton, Alexander, “Federalist 74,” The Federalist Papers, ed. Rossiter, Clinton (New York: Signet Classic, 1999), 415–16Google Scholar.

15. Hamilton, “Federalist 69,” The Federalist Papers, 364.

16. Hamilton, “Federalist 69,” The Federalist Papers.

17. 71 U.S. 333, 380 (1866).

18. Hattam, Victoria and Lowndes, Joseph, “The Ground beneath Our Feet: Language, Culture, and Political Change” in Formative Acts: American Politics in the Making, ed. Skowronek, Stephen and Glassman, Matthew (Philadelphia: University of Pennsylvania Press, 2007), 199–219.Google Scholar

19. See P. S. Ruckman Jr., “Policy as an Indicator of ‘Original Understanding’: Executive Clemency in the Early Republic (1789-1817)” (Paper presented at the annual meeting of the Southern Political Science Association, Atlanta, GA, 1994); Ruckman Jr., “Executive Clemency in the United States,” Presidential Studies Quarterly; Crouch, The Presidential Pardon Power.

20. Mettler, Suzanne and Valelly, Richard M., “Introduction: The Distinctiveness and Necessity of American Political Development,” in The Oxford Handbook of American Political Development, eds. Valelly, Richard M., Mettler, Suzanne, and Lieberman, Robert C. (New York: Oxford University Press, 2016), 3Google Scholar.

21. Ruckman, P. S. Jr. “Presidential Character and Executive Clemency,” Social Science Quarterly 76, no. 1 (March 1995): 213–21Google Scholar, 221.

22. For a brief but insightful account of this history, see Duker, “The President’s Power to Pardon.”

23. Moore, Kathleen Dean, Pardons: Justice, Mercy, and the Public Interest (New York: Oxford University Press, 1997), 25 Google Scholar.

24. See Humbert, W. H., The Pardoning Power of the President (Washington DC: American Council on Public Affairs, 1941), 13–14 Google Scholar; Jensen, Christen, The Pardoning Power in the American States (Chicago: University of Chicago Press, 1922), 10–11 Google Scholar; Dinan, John, “The Pardon Power and the American State Constitutional Tradition,” Polity 35, (2003): 389–18CrossRefGoogle Scholar, 396.

25. Farrand, Max, The Records of the Federal Convention of 1787, Volume 2 (New Haven, CT: Yale University Press, 1911), 626–27Google Scholar.

26. See Love, Margaret Colgate, “Of Pardons, Politics, and Collar Buttons: Reflections on the President’s Duty to be Merciful,” Fordham Urban Law Journal 27, (2000): 1483–1513 Google Scholar.

27. Hamilton, “Federalist 74,” The Federalist Papers, 415–17.

28. The Debates in the Convention of the State of North Carolina on the Adoption of the Federal Constitution, Volume 4, ed. Jonathan Elliot (Washington: Printed for the Editor, 1836), 110.

29. United States v. Wilson, 32 U.S. 150 (1833), 150.

30. The Supreme Court acknowledged this role for the pardon in Biddle v. Perovich (1827). In that case, Justice Oliver Wendell Holmes wrote that the pardon “is not a private act of grace … it is a part of the Constitutional scheme. When granted, it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.” 274 U.S. 480, 486.

31. The Debates, Volume 4, 110.

32. Madison, “Federalist 23,” The Federalist Papers, 121–22.

33. Hamilton, “Federalist 74,” The Federalist Papers, 417.

34. The Debates, Volume 4, 110–14.

35. The Debates, Volume 4, 110–14.

36. Slaughter, Thomas P., The Whiskey Rebellion: Frontier Epilogue to the American Revolution (New York: Oxford University Press, 1986)Google Scholar.

37. Edmund Randolph as quoted in Elkins, Stanley and McKitrick, Eric, The Age of Federalism (New York: Oxford University Press, 1993), 480 Google Scholar.

38. This became something of an obsession to Washington. See George Washington to Burgess Ball, September 25, 1794, National Archives, accessed April 19, 2020, https://founders.archives.gov/documents/Washington/05-16-02-0492.

39. George Washington, “Sixth Annual Address to Congress,” November 19, 1794, The American Presidency Project (online by Gerhard Peters and John T. Woolley), accessed April 19, 2020, https://www.presidency.ucsb.edu/documents/sixth-annual-address-congress.

40. On the neutrality principle, see Gillman, Howard, The Constitution Besieged: The Rise and Demise of the Lochner Era (Durham, NC: Duke University Press, 1993)Google Scholar.

41. Fritz, Christian G., American Sovereigns: The People and America’s Constitutional Tradition before the Civil War (New York: Cambridge University Press, 2008), 153 Google Scholar.

42. George Washington, “Seventh Annual Address to Congress,” December 8, 1795, The American Presidency Project, accessed April 19, 2020, https://www.presidency.ucsb.edu/documents/seventh-annual-address-congress.

43. George Washington, “Farewell Address,” September 17, 1796, The American Presidency Project, accessed April 19, 2020, https://www.presidency.ucsb.edu/documents/farewell-address.

44. Fritz, American Sovereigns, 187.

45. Hamilton, “Federalist 9,” The Federalist Papers, 40.

46. Hamilton, “Federalist 23,” The Federalist Papers, 120–25.

47. Hamilton, “Federalist 74,” The Federalist Papers, 415–17.

48. Pederson, William D., “Amnesties and Pardons,” in The American Revolution 1775-1783: An Encyclopedia, Volume 1, ed. Blanco, Richard L. (New York: Garland Publishing, 1993), 32–33 Google Scholar.

49. Washington, “Seventh Annual Address to Congress,” The American Presidency Project.

50. Scholars argue that Washington’s framing of the pardon established the tradition “to use the power of executive clemency to promote justice.” See Pederson, William D. and Williams, Frank J., “America’s Presidential Triumvirate: Quantitative Measures of Character,” in George Washington: Foundation of Presidential Leadership and Character, eds. Rozell, Mark J., Fishman, Ethan, and Pederson, William D. (Westport, CT: Praeger, 2001), 156 Google Scholar.

51. Unity was advanced even where disunion was afoot. For example, in the case of Fries’s Rebellion, the rebels had raised the flag of Westsylvania. See Newman, Paul Douglas, Fries’s Rebellion: The Enduring Struggle for the American Revolution (Philadelphia: University of Pennsylvania Press, 2004), 52 CrossRefGoogle Scholar.

52. John Adams to James Lloyd, March 31, 1815, in The Works of John Adams, Volume 10, ed. Charles Francis Adams (Boston: Little, Brown and Company, 1854), accessed April 19, 2020, http://oll.libertyfund.org/titles/adams-the-works-of-john-adams-vol-10-letters-1811-1825-indexes.

53. Newman, Paul Douglas, Fries’s Rebellion: The Enduring Struggle for the American Revolution (Philadelphia: University of Pennsylvania Press, 2004), 11 CrossRefGoogle Scholar.

54. Adams opened the pardon as follows: “Whereas the late wicked and treasonable insurrection … having been speedily suppressed without any of the calamities usually attending rebellion; whereupon peace, order, and submission to the laws of the United States were restored in the aforesaid counties, and the ignorant, misguided, and misinformed in the counties have returned to a proper sense of their duty, whereby it is become unnecessary for the public good that any future prosecutions should be commenced or carried on against any person or persons by reason of their being concerned in the said insurrection.” John Adams, “Proclamation—Granting Pardon to Certain Persons Engaged in Insurrection against the United States in the Counties of Northampton, Montgomery, and Bucks, in the State of Pennsylvania,” May 21, 1800, The American Presidency Project, accessed April 15, 2020, https://www.presidency.ucsb.edu/documents/proclamation-granting-pardon-certain-persons-engaged-insurrection-against-the-united.

55. Adams, “Proclamation,” The American Presidency Project.

56. Adams to the Heads of Departments, May 20, 1800, in The Works of John Adams, Volume 9, ed. Charles Francis Adams (Boston: Little, Brown and Company, 1854), accessed April 15, 2020, http://oll.libertyfund.org/titles/adams-the-works-of-john-adams-vol-9-letters-and-state-papers-1799-1811.

57. Adams, “Proclamation,” The American Presidency Project.

58. Fritz, American Sovereigns, 40.

59. See Dippel, Horst, “The Changing Idea of Popular Sovereignty in Early American Constitutionalism: Breaking away from European Patterns,” Journal of the Early Republic 16, no. 1 (Spring 1996): 21–45 CrossRefGoogle Scholar, 31.

60. Stimson, Shannon C., The American Revolution in the Law: Anglo-American Jurisprudence before John Marshall (Princeton, NJ: Princeton University Press, 1990), 70 Google Scholar.

61. Quoted in Ridgway, Whitman H., “Fries in the Federalist Imagination: A Crisis of Republican Society,” Pennsylvania History: A Journal of Mid-Atlantic Studies 67, no. 1 (Winter 2000): 141–60Google Scholar, 150.

62. Alexander Hamilton, “Concerning the Public Conduct and Character of John Adams, Esq. President of the United States,” October 24, 1800, National Archives, accessed April 22, 2020, https://founders.archives.gov/documents/Hamilton/01-25-02-0110-0002.

63. Adams to the Heads of Departments, May 20, 1800, in The Works of John Adams, Volume 9.

64. John Adams, “Third Annual Address to Congress,” December 3, 1799, The American Presidency Project, accessed April 20, 2020, https://www.presidency.ucsb.edu/documents/third-annual-address-congress.

65. Tinkcom, Harry Marlin, The Republicans and Federalists in Pennsylvania, 1790-1801: A Study in National Stimulus and Local Response (Harrisburg: Pennsylvania Historical and Museum Commission, 1950), 216 Google Scholar.

66. Newman, Fries’s Rebellion, 184.

67. David McCullough, John Adams (New York: Simon & Schuster, 2002), 370. Historian Paul Douglas Newman also notes that “Adams had good reason to believe his own pardons would have an ameliorating effect on the electorate, after all, the people had elected him after Washington’s pardons in 1795.” Fries’s Rebellion, 195.

68. In 1796, Adams won all of New York’s electors. In 1800, he won none of them.

69. Adams went so far as to pardon David Bradford, the only remaining participant in the Whiskey Rebellion not pardoned by President Washington. Notably, Adams issued the pardon for Bradford roughly one month before the start of John Fries’s trial. The signaling effect was not lost on Federalists who desired swift punishment as a deterrent against future uprisings. See Ridgway, Whitman H., “Fries in the Federalist Imagination: A Crisis of Republican Society,” Pennsylvania History: A Journal of Mid-Atlantic Studies 67, no. 1 (Winter 2000): 141–60,Google Scholar 150.

70. Hamilton, “Federalist 83,” The Federalist Papers, 463–78; Yates, “Brutus 14,” in The Complete Anti-Federalist, ed. Herbert J. Storing (Chicago: University of Chicago Press, 1981), 431–37.

71. An Act Respecting Enemy Aliens, 1 Stat. 577 (1798).

72. See Jefferson, Thomas, “Jefferson’s Fair Copy,” in The Papers of Thomas Jefferson, Volume 30, 1 January 1798 to 31 January 1799, ed. Oberg, Barbara B. (Princeton, NJ: Princeton University Press, 2003), 545–46Google Scholar.

73. Bair, Robert R. and Coblentz, Robin D., “The Trials of Mr. Justice Samuel Chase,” Maryland Law Review 27, (1967): 374 Google Scholar.

74. It likely did not help that his two lawyers quit the case in protest of Chase’s manipulations.

75. Thomas Jefferson to Edmund Pendleton, April 19, 1800, National Archives, accessed April 19, 2020, https://founders.archives.gov/documents/Jefferson/01-31-02-0436.

76. Hamilton argued as much in The Federalist: “The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government.” Hamilton, “Federalist 83,” The Federalist Papers, 467.

77. As quoted in James Morton Smith, “Sedition in the Old Dominion: James T. Callender and The Prospect before Us,” The Journal of Southern History 20, (May 1954), 157–82, 176.

78. Chase, Samuel, “Trial of James Thompson Callender, for Seditious Libel” in State Trials of the United States during the Administrations of Washington and Adams , ed. Wharton, Frances (Philadelphia, PA: Carey and Hart, 1849), 713 Google Scholar.

79. Jefferson to Thomas Mann Randolph, Papers, Volume 33, 260.

80. Jefferson to Littleton W. Tazwell,” Papers, Volume 31, 492.

81. Jefferson, “Notes on New York Patronage,” Papers, Volume 33, 11.

82. An Act to Amend an Act Intitled [sic] “An Act to establish the Judicial Courts of the United States,” 2 Stat. 82.

83. Thomas Jefferson, “Inaugural Address,” March 4, 1801, The American Presidency Project, accessed April 19, 2020, https://www.presidency.ucsb.edu/documents/inaugural-address-19.

84. As quoted in “Footnote to Pardon for David Brown,” in The Papers of Thomas Jefferson, Volume 33, 17 February to 30 April 1801, ed. Barbara B. Oberg (Princeton, NJ: Princeton University Press, 2006), 252.

85. Miller, John C., Crisis and Freedom: The Alien and Sedition Acts (Boston: Little, Brown, and Company 1951), 119 Google Scholar. In Jefferson’s pardon of Brown, he cites the fine amount as $400. See Jefferson, “Pardon for Brown,” Papers, Volume 33, 251.

86. Not only had Jefferson espoused his opinion on the Alien and Sedition Acts in personal letters and in his draft of the Kentucky Resolution of 1798; he also drafted a bill as president that provided relief to those who “suffered, prosecutions, fines, & imprisonments” under the Sedition Act. See Miller, Crisis and Freedom, 258. Jefferson may have refrained from expressing his opinion due to Madison’s advice that giving reasons may open up pardons to greater criticism. James Madison to Thomas Jefferson, 20 June, 1801, in The Papers of Thomas Jefferson, Volume 34, 1 May to 31 July 1801, ed. Barbara B. Oberg (Princeton, NJ: Princeton University Press, 2006), 396.

87. Thomas Jefferson, “First Annual Message,” December 8, 1801, The American Presidency Project, accessed April 19, 2020, https://www.presidency.ucsb.edu/documents/first-annual-message.

88. Skowronek, The Politics Presidents Make, 70.

89. Skowronek, The Politics Presidents Make, 76–77.

90. Dunn, Susan, Jefferson’s Second Revolution: The Election Crisis of 1800 and the Triumph of Republicanism (New York: Houghton Mifflin Harcourt, 2004)Google Scholar; on Jefferson’s personal contribution to Callender, see Miller, Crisis in Freedom, 220.

91. Thomas Jefferson to James Monroe, July 17, 1802, Library of Congress, Washington, DC, accessed April 19, 2020, http://www.loc.gov/resource/mtj1.026_0806_0806.

92. Robert R. Livingston to Thomas Jefferson, Papers, Volume 34, 215.

93. For example, the following works do not contain any extensive treatment of the pardon as part of executive power or policy making. Calabresi, Steven G. and Yoo, Christopher S., The Unitary Executive: Presidential Power from Washington to Bush (New Haven, CT: Yale University Press, 2008)CrossRefGoogle Scholar; Howell, William G. with Brent, David Milton, Thinking about the Presidency: The Primary of Power (Princeton, NJ: Princeton University Press, 2013)CrossRefGoogle Scholar; Howell, William G., Power without Persuasion: The Politics of Direct Presidential Action (Princeton, NJ: Princeton University Press, 2003)CrossRefGoogle Scholar; Mansfield, Harvey, Taming the Prince: The Ambivalence of Modern Executive Power (New York: Free Press, 1989)Google Scholar; Neustadt, Richard E., Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan (New York: Free Press, 1990)Google Scholar; Schlesinger, Arthur M., The Imperial Presidency (Boston: Houghton Mifflin, 1973)Google Scholar; Skowronek, The Politics Presidents Make; Tulis, Jeffrey K., The Rhetorical Presidency (Princeton, NJ: Princeton University Press, 1987)Google Scholar. Notably, pardon scholars have begun to explore the pardon as a policy-making tool by exploring President Obama’s commutations of drug offenses. See Ruckman, P. S. Jr. “The Obama Administration: Breaking Records in a Broken Clemency System,” Federal Sentencing Reporter 29, no. 2–3 (December 2016–February 2017), 87–90 CrossRefGoogle Scholar; Love, Margaret Colgate, “Obama’s Clemency Legacy: An Assessment,” Federal Sentencing Reporter 29, no. 5 (June 2017), 271–77CrossRefGoogle Scholar.

94. See Ronald Dworkin’s analogy of judicial work to a chain novel. Law’s Empire (Cambridge, MA: Belknap Press of Harvard University Press, 1986), 229.