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I had planned to announce that I wouldn’t be writing this week. I’ve been dealing with sick kids and family issues, and this has disturbed my work schedule. But things are moving fast now that Trump has taken office and there is a very clear crisis on the horizon. So this week’s article will be less theoretical, but still valuable. In fact, critical to understand.
Comparisons between America and Rome are cliché now, and history never repeats exactly. But it does rhyme—that is, the details change, but the overall story remains the same. Rome is the only high civilization in the West that collapsed during a period of historical literacy, meaning we have the records. And we should look at them.
This article is not on Roman history, so we will keep the history lesson as short as possible. The Cliffs Notes of the fall of the Roman republic are roughly as follows:
As Roman tradition was hollowed out,1 custom weakened. As custom weakened, certain longstanding pillars of social life started to fall. The Romans were ultra-conservative, but even they no longer remembered why these structures were there in the first place. And so like Chesterton’s Fence,2 they ripped these structures down, only to find that they held up the whole edifice. Oopsie!
Where this became visible was in the abuse of certain powers of the tribuneship. The tribunes were defenders of the plebeians, and invested with certain powers. Specifically, they had immunity (sacrosanctitas)—they couldn’t be touched when carrying out their duties—and the veto (intercessio)—they could block actions, laws, or decrees they deemed harmful to the plebeians.
These tribunate powers made the tribunes into little nodes of sovereign decision—they could overturn the sovereignty of the Roman republic. As institutional restraint loosened, so did restraint in abusing these powers, and the tribunes did flagrantly overturn the sovereignty of the republic, first here and there, then chronically. The veto came to function not as a shield for the plebs, but rather as a tool for obstruction and factional advantage. Immunity came to function not to protect the tribuneship itself, but rather to bypass all other elements in the Roman government.
The structural weakness in the Roman state was divided sovereignty. This is never, ever a good idea, because there is always a sovereign, and sovereignty by definition is singular and absolute. All it does is conceal who the actual sovereign is. Today we call this divided sovereignty “checks and balances”, or “separation of powers”, and fetishize it.
A structural weakness comparable to that of Rome, exists within the American state. This weakness has become visible in the presidential pardon. America will have to get rid of the presidential pardon to save the nation, but in order to do that, it will have to hit the reset button—it will have to destroy the nation.
First, a bit about the presidential pardon.
A presidential pardon is a constitutional presidential power.3 It allows the President to forgive a person for federal crimes, eliminating their legal consequences. It applies exclusively to federal crimes, not state or local crimes. It can be granted at any time, whether before formal charges, during prosecution, or after conviction, though not before a crime has been committed. Although the pardon must go through a process of recommendation by the Office of the Pardon Attorney, the President has complete discretion, regardless of the recommendations. The decision does not require approval or oversight by Congress, courts, or any other body. The President can even expunge the conviction so it no longer remains on record.
The important thing to note about the presidential pardon is that it allows the president effectively to nullify all federal criminal law. Criminal law is that law which governs actions against society, and specifically against the state itself. The president can even pardon treason—levying war against the United States. In fact, this was actually done by Andrew Johnson, who pardoned Confederate soldiers and leaders after the Civil War.
Now, we must also note that the vast majority of crimes are handled under state law. The President can’t overturn just any conviction at all. But the takeaway is that the presidential pardon can be wielded in ways that resemble absolute sovereignty, overriding the judicial and legislative actions of the federal government. Of course it can, because the power of pardon is rooted in the monarchic authority of kings, who could dispense mercy as a sovereign prerogative.
This sovereignty is not quite absolute though. The presidential pardon does not apply to impeachment, so the President can’t pardon either himself or his predecessor. And as we have noted, this power applies only to federal and not to state crimes. But the effect of the law—and the effect is all that matters—is to subject federal criminal law to executive decision, leaving state law unchallenged. In essence, the presidential pardon makes states inviolable, while it makes the federal government the servant of the executive. Chalk up one for states’ rights.