At The Faculty Lounge, Eric Muller responds to this Originalism Blog guest post by Michael McConnell. Professor Muller begins:
Not long ago I put up a post here noting the extreme rarity of the reflexive use of the verb "to grant," both in the 18th century and now. (This in the context of whether the president can "grant" a pardon to himself.) I contrasted the verb "to grant" with the verb "to give," which does have a common reflexive usage. I believe we'd all agree, for example, that President Trump can "give himself" credit. (In fact, I think I've even seen him do it!) The verb "to grant," as I understand its meaning, operates differently.
Michael McConnell makes short work of my argument, observing that a person can "grant" property to himself as a trustee to hold in trust for certain purposes.
I'm not sure that the example does the work for him that he believes it does. My point is that the verb "to grant" connotes a transfer from an entity to another that has no claim of right to the thing granted. Note that McConnell's example involves a a grantor's grant of something to himself "as a trustee." That's significant, isn't it? There are two different legally recognized entities here that play distinct roles — a grantor and a trustee. There remains here the one-entity-to-a-different-entity sense. The grantor isn't really giving the thing to himself, the grantor. He's giving something to a different entity, a trustee, who in this case happens also to be the same person who's playing the role of grantor.
But this obscures the larger and more important point that is captured in the Hunter's Lessee quote atop this post. The inquiry into original meaning is not an inquiry into original rare-and-odd-but-still-conceivable meaning. It's an inquiry into original natural and obvious meaning. So even if it's true that one can locate rare scenarios in which a grant can go from the grantor to the grantor, all this means is that if we could sit down with the ordinary person in 1789, we would have to go on at some length about a unique and unusual sense of a word, and the 1789 person would listen, cock his head, look skeptical, and then maybe finally come around to saying, "ohhhhhhh, I see what you mean — you're using "grant" in that specific and rare sense, aren't you? OK then."
Surely that can't be how the work of original meaning gets done, can it?
At Take Care Blog, Andrew Kent, Ethan Leib, and Jed Shugerman have posted Self-Pardons, Constitutional History, and Article II (responding to Professor McConnell's earlier Washington Post essay, and also an essay by Richard Epstein). It begins:
In the aftermath of President Trump tweeting last week that "I have the absolute right to PARDON myself," two of this country's most prominent conservative legal academics published defenses of the president's ability to self-pardon. Michael McConnell of Stanford argued in the Washington Post that the Constitution's drafters specifically contemplated and approved presidential self-pardons, while pointing to impeachment as the sole remedy for abuse of the pardon power. Richard Epstein of NYU wrote in the Wall Street Journal that the president's power to pardon is unlimited, except that misuse of the pardon power may subject him to impeachment in Congress. These views are not correct readings of our Constitution.
On the McConnell essay, the post argues:
McConnell does not closely analyze the text of the Constitution, but rather points to an episode at the 1787 Philadelphia Convention, which he reads as showing that the Framers of the Constitution approved of presidential self-pardons.
Yet the notes from the Philadelphia Convention are well known to be incomplete and imprecise – and are not always a reliable source for divining definitive interpretations of the Constitution. The proceedings were held in secret, and for several decades little information about what had transpired was public. Most importantly, the secret intentions of the drafters are not what made the Constitution our supreme law. As Chief Justice John Marshall famously wrote, when the proposed Constitution was released, it "was a mere proposal, without obligation, or pretensions to it." The people of the states met in conventions to debate whether to adopt the Constitution. "From these conventions," Marshall wrote, "the constitution derives its whole authority." That is why the most plausible and widely-accepted version of originalist constitutional interpretation looks not to the intentions of the drafters at Philadelphia but at the objective meaning that the Constitution's words would have conveyed to the American public at the time of ratification.
I just want to pause here and note that the post's lead criticism of Professor McConnell is not that he's an originalist , but that he's doing originalism wrong.
The post continues:
But even if the intentions held by delegates at Philadelphia govern, McConnell misreads the extant records and overlooks how later debates during ratification clarified the discussion at Philadelphia. … [Close analysis of the Convention records follows] … Thus a fuller look at the historical record suggests that McConnell’s interpretation of the Philadelphia debate is unlikely.
Turning to Professor Epstein's arguments:
Professor Epstein, for his part, does analyze the text of Article II, but he errs in his reading of it. Article II of the Constitution vests "[t]he executive power" in the President, enjoins him or her to "take care that the laws be faithfully executed," and requires that the President take a special oath, swearing that he or she shall "faithfully execute the office of President of the United States." In addition, Article II authorizes the President "to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." Epstein supposes that the pardon power is unconstrained by the President’s Article II obligations of fidelity, and asserts that self-pardoning would be permissible.
We recently helped write a public letter to the President's lawyers, signed by a number of legal academics, which interpreted Article II in the context of the question whether the President has—as some of his defenders like Harvard's Alan Dershowitz have argued—a constitutional immunity to obstruct justice. As we explained there and in a related scholarly paper, when the Founders defined the Presidency as an office bound and restricted by overarching duties of "care" and "faithful[ness]" to the Constitution and laws of the United States, they were invoking well-known limitations on public officers as fiduciaries. In the eighteenth century, as today, English and American law required fiduciaries to act always with due care, solely for the good of their beneficiaries, and to abstain from self-dealing, corruption, and other kinds of self-interested actions. The Founders’ carefully-chosen words, with their well-known meanings, reflect a conception of a chief magistrate who is duty-bound and oath-bound to act with faithfulness to the law and the people, not to his own selfish interests.
As with prior discussions of this and related topics, I want to emphasize the the extent to which these are all orignialist arguments. Originalism is completely dominating the debate over self-pardons and, more broadly, the debate over the President's control over prosecutions. My main interest here (since I think it quite unlikely that the President will pardon himself) is what this says more broadly about the debate over originalism.
DAVID WEISBERG ADDS: In response to Eric Muller’s latest blog post on the pardon power: Suppose a contract were drafted today to settle the rights and obligations of many people (collectively designated in the contract as “the Parties”) with regard to several valuable items, including a certain prize (designated as “the Prize.”) Consider these two possible contractual provisions:
Posted at 6:05 AM