Were the Anti-Federalists really paranoid?

Sandy Levinson

Following World War Ii, it became fashionable to dismiss the opponents of the Constitution as paranoid or, at least, "men of little faith," to quote the title of Caroline Robbins's extremely influential essay. [Update: Jack Rakove has reminded me that it was actually Cecilia Kenyon who wrote the essay in question.] Instead, the Constitution, if not perfect--there was the collaboration with slavery, after all--was far better than its anti-Federalist critics suggested, and the imperfections re slavery were "cured," or so it has been claimed, by a war that killed 2% of the American population and added the 13th, 14th, and 15th Amendments to the Constitution.



One of the things that some of the critics were exceedingly suspicious about was the pardoning power. George Mason, a distinguished Virginian who refused to sign the Constitution because of its lack of a bill of rights, noted that "the President of the United States has the unrestrained Power of granting Pardon for Treason; which may be sometimes exercised to screen from Punishment those whom he had secretly instigated to commit the Crime, and thereby prevent a Discovery of his own guilt." Luther Martin, a somewhat less distinguished but extremely interesting non-signatory from Maryland (who also raised questions about the collaboration with slavery), also objected to the potential "attempt [of the President] to assume to himself powers not given by the constitution, and establish himself in regal authority; in which attempt a provision is made for him to secure from punishment the creatures of his ambition, the associates and abettors of his treasonable practices, by granting them pardons should they be defeated in their attempts to subvert the constitution."



So how does one assess the pardon of I. Lewis ("Scooter") Libby against these fears expressed by Mason and Martin (and other anti-federalists). If one could be confident that Bush were being truly "compassionate" in not wishing to take Libby from his family, that might be one thing, but, of course, there's not a scintilla of evidence that Bush possesses a compassionate disposition in general. Consider his conduct both as Governor and as President with regard to his use of the pardoning or commutation power, especially in capital cases; this is not a man who cares one whit about the consequences for actual human beings and their families caught up in the Texas or US legal systems. More plausible is the view that Libby was indeed part of a cabal engaged, not in "treason," but in "attempts to subvert the constitution" in a number of insidious ways, including character assassination of anyone so bold to suggest that the Administration was less than trustworthy in its arguments for going to war. What "Scotter" knows, and is most certainly not talking about, is who were his confederates in this cabal besides the Vice President of the United States. We have good reason to believe that Karl Rove was also involved, and by that point we're getting very, very close to the Oval Office.



I really don't advocate doing away with the pardoning power, because it is important to retain the ability to temper justice with mercy. But the Libby pardon is ample proof that nothing comes for free, and that we might be well advised to listen to those like Mason and Martin, who did indeed have little faith that our leaders would necessarily exemplify the kind of civic virtue necessary to maintaining a constitutional republic. For Bush, the "Republican Form of Government" is equivalent to "Government by the Republican Party." I don't think the Framers would have agreed.