Because of the courts’ rapid revision of the definition of the term “pardon” — changing it and expanding it over the years — the Biden administration is now trying to tell the American People that the modern definition of pardon includes the ability to pardon anyone at anytime, whether before investigation or after conviction, for anything vague and undefined, and for extended periods of time. This happened due to several court rulings, but mostly Ex parte Garland, which stated a President could give a pardon at any time after a person has committed a criminal act, redefining “commit(ted)” from “the state proving a crime has happened through a conviction and has merited (earned) punishment as prescribed by law,” to the common use, “to carry out”.
Black’s Law First Edition defines “commit” as: “To send a person to prison by virtue of a lawful authority for any crime or contempt.”
The word “commit”, for most of history, required an execution of the law by those who are entrusted to do so, and was not simply a vague action at some point in the past.
The requirement to be convicted didn’t change until the 10th edition of Black’s Law Dictionary, which defines “Pardon” as:
The act or an instance of officially nullifying punishment or other legal consequence of a crime.
The dictionary goes on to quote the Encyclopedia of Crime and Justice 59, 59th edition, written in 1983 about how a pardon is an act of grace by an executive for punishment “merited”. Further, the dictionary has 6 sub terminology under the word, including “Absolute Pardon”, “Conditional Pardon”, “Faultless Pardon”, “General Pardon (see Amnesty)”, “Partial Pardon”, and “Unconditional Pardon.” There is a second definition concerning Ecclesiastes law definition of a person being absolved through a divinely ordained justice and sacrament of penance, or a religious pardon.
By contrast, Black’s Law Dictionary, First Edition, has a singular definition of “Pardon”:
An Act of Grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed…
The definition continues:
‘Pardon’ is to be distinguished from ‘Amnesty’. The former applies only to the individual, releases him from the punishment fixed by law for his specific offense, but does not affect the criminality of the same or similar acts when performed by other persons or repeated by the same person. The latter term denotes an act of grace, extended by the government to all persons who may come within its terms, and which obliterates the criminality of past acts done, and declares they shall not be treated as punishable.
Some of the previous legal definitions from Black’s Law editions 2-9 of “Pardon” explicitly state a person had to be convicted of a specific crime as well, meaning that the idea of a pardon including more than just punishment — and instead also providing a pardon for “any legal consequence” — is inconsistent with the original meaning, and the law, for most of our history. Being charged, having evidence presented in court, and being convicted of a crime is not a punishment, and is considered part of the legal process; therefore, this process falls into the new category of “legal consequence” under a pardon.
This is a rapid evolution of the meaning of the word pardon, done through the court’s revision of the word, and thus, amends the Constitution outside of the formal amendment process as “amendment” is defined by law. This brings into serious question the legitimacy of these acts and has the potential to void the Constitution for being an illusory document to which the signatories could never fully grasp or hold onto due to constantly changing it arbitrarily through a “de facto” amendment process that does not legally exist.
To the end of trying to figure out where a preemptive pardon could possibly come from, the only definition that has any pretense of indicating a preemptive pardon could exist in our history is the “Absolute Pardon”, defined in Black’s Law’s 10th Edition as follows: “A pardon that releases the wrongdoer from punishment and restores the offender’s civil rights without qualification.” As you can see, an absolute pardon does not release an offender from, “other legal consequences of a crime,” and thus will have to be redefined, yet again, by the courts to include such conditions.
Many advocates of preemptive pardons state that it is legal because Ford and Bush did this during their presidencies, but this is not how the law works. In order to challenge an illegal action, the state must bring charges for legally defined criminality that defines a punishment within that law for that criminality – or a person can bring a civil redress suit for harm that has been inflicted upon them from another’s illegal actions, such as slander. Nobody challenged these pardons in the courts, perhaps because they did not have standing.
I think it may, however, be possible to question the validity of a preemptive pardon if it is ever presented to the courts by the pardoned if criminal charges are brought against the actors in the Biden’s family or staff who received what amounted to “temporary immunity” for criminal actions.
Regardless, if the Constitution can be redefined outside of what was originally agreed upon by the ratifiers, this means that the Constitution no longer holds mutual interest for all parties, as all parties have to agree on these changes and none of them have. This makes the contract illusory and void. A problem could be brought before the court based on the law, and be completely redefined during the court case, which also brings into question equal treatment under the law and the basic principles those practicing law have stated they work under. This assertion is based in contract law, where a contract becomes illusory because there is no “meeting of the minds” on what is meant by the terms that are being agreed upon.
The Constitution also promises limitations and limited powers of a federal government while simultaneously and purposefully having “legal holes and gaps” that the signatories could not have known about or understood the consequences of allowing (such as a future Judiciary redefining the Constitution so that an Executive can pardon criminal elements in his own administration, as we have seen from the Biden Administration.)
Many people erroneously believe the Constitution is not a contract, or believe it is a theoretical “social contract”; however, it functions as any contract would amongst people. I can delegate to another person my agency (this is known as a principal/agent relationship) who could then enter into a contract on my behalf. Such powers were placed with the Executive Branch of the government when the Constitution was ratified. This is what the delegates were granted the power to do when Special Conventions were called to ratify the Constitution while still under the Articles of Confederation.
Further, I can write an amendment process, a nullifying clause, a severance clause, and terms and definitions into any contract I create, or that I am a party to, before it is signed by all parties involved. I can include a mediation and/or arbitration process (such is the role of the courts, with limited express powers) and divest my authority into several parts of an organization, such as a living trust that has both a beneficiary and a trustee who acts on my behalf to administer the trust.
The Constitution is, factually, a legal document that creates a legal system of governance amongst sovereign people that make up the populations of the states that held an election and voted delegates to ratify (or not) the Constitution. It is a contractual obligation meant to ensure that our Federal government will be granted only limited powers derived from the People’s Sovereignty. The People’s Sovereignty is still absolute, and the very concept of a government with “Limited Powers” directly means that the People retain their Sovereignty.
The Constitution is a a fixed document insofar as there are only two formal amendment processes that allow for any changes to the Constitution (including definitions) — and those two processes do not include the Supreme Court changing the Constitution for the times we live in…