Forgetting Oblivion: The Demise of the Legislative Pardon
50 Pages Posted: 5 Apr 2011
Date Written: March 31, 2011
Since the post-Civil War cases arising out of conflicts over the proper location of the amnesty power, it has generally been thought that pardon and amnesty are synonymous and that the capacity to effect both is vested in the President under Article II. The history of the English version of amnesty – oblivion – within the seventeenth and eighteenth centuries and the colonial and state oblivions that were legislatively enacted from 1650 through the period of the Second Continental Congress suggest otherwise. Oblivion was distinct from pardoning because it erased the underlying events rather than remitting punishment and often arose as a response to civil unrest. More than pardoning, oblivion served the function of settling property rights and restoring those included to full citizenship. In addition, acts of oblivion were passed by colonial legislatures even in some colonies whose charters explicitly granted the pardon power to the Lord Proprietor.
Recovering the lost history of oblivion suggests that the decisions of the Supreme Court in the late nineteenth century were not entirely correct in assimilating pardon with amnesty. Instead, a strong argument can be made that the tradition of oblivion within England and the colonies supports a broad congressional power to grant amnesty. Remembering oblivion can also allow us to revive a different form of pardoning than that dominant today, a form associated with transitional justice and the restoration of a community riven by civil strife. Oblivion presents an alternative model for moving forward, suggesting that certain kinds of conflicts would be better forgotten than remembered for the continued health of the polity.
Keywords: pardon, common law, originalism, separation of powers, constitutional law, legal history
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