The decision by President Joe Biden to pardon his son, Hunter, despite previously suggesting he would not do so, has reopened debate over the use of the presidential pardon.
Hunter Biden will be spared potential jail time not simply over his convictions for gun and tax offenses, but any “offenses against the United States which he has committed or may have committed or taken part in during the period Jan. 1, 2014 through December 1, 2024.”
During his first tenure in the White House, Donald Trump issued a total of 144 pardons. Following Biden’s move to pardon his son, Trump raised the issue of those convicted over involvement in the Jan. 6 storming of the U.S. Capitol, raising expectations that he may use the pardon in their cases – something Trump has repeatedly promised to do.
But should the pardon power be solely up to the president’s discretion? Or should there be restrictions on who can be granted a pardon?
As a scholar of ethics and political philosophy, I find that much of the public debate around pardons needs to be framed within a more fundamental question: Should there be a presidential pardon power at all in a democracy governed by the rule of law? What, after all, is the purpose of a pardon?
From royal roots…
Black’s Law Dictionary, the go-to book for legal terms, defines the pardon power as, “an act of grace…which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.” Although the power to pardon is probably as old as politics, the roots of the presidential pardon in the U.S. can be traced back to English law.
The English Parliament legally placed an absolute pardon power in the hands of the monarch in 1535 during the reign of King Henry VIII. In the centuries that followed, however, Parliament imposed some limitations on this power, such as preventing pardons of outrageous crimes and pardons during an impeachment.
The Founding Fathers followed the English model in establishing the powers of the executive branch in Article II of the U.S. Constitution. Section 2 of that article specifically grants the president the “power to grant reprieves and pardons for offenses against the United States” and acknowledges one limitation to this power “in cases of impeachment.”
But the anti-democratic roots of the pardon power were a point of contention during the drafting and ratification of the Constitution. In a 1788 debate, Virginia delegate George Mason, for example, said that the president “ ought not to have the power of pardoning, because he may frequently pardon crimes which were advised by himself. It may happen, at some future day, that he will establish a monarchy, and destroy the republic.”
Mason’s concern clearly identifies this vestige of the absolute powers of the English monarchy as a potential threat to the new democracy. In reply, based on the assumption that the president would exercise this power cautiously, James Madison contended that the restriction on the pardon power in cases of impeachment would be a sufficient safeguard against future presidential abuse.
…to religious reasoning
The political concept of pardon is linked with the theological concept of divine mercy or the charity of an all-powerful God.
Pardon, as Supreme Court Justice Marshall noted in the 1833 United States v. Wilson ruling, is defined as “ an act of grace.” Just as in the Abrahamic faiths – Islam, Judaism and Christianity – God has the power to give and to take life, kings wield the power to take life through executions and to grant life through the exercise of pardons.
Echoing the command of the Lord’s Prayer “to forgive the trespasses of others,” English philosopher Thomas Hobbes ’ book “Leviathan” asserts that the sovereign ought to display grace by pardoning the offenses of those who, repenting those offenses, want pardon.
Yet, this analogy with divine mercy for all individuals collides with the legal principle of treating different cases differently. If all trespasses were forgiven, pardon would be granted to all crimes equally.
There would be no need for distinctions between the wrongly and the rightly convicted or the repentant and unrepentant criminal. All would be forgiven equally. Universal pardon thus violates the legal principle that each individual should receive their due. In the eyes of law, it is impossible to pardon everything and everyone.
The incognito of pardon
What Hobbes recognized, if imperfectly, is that the power of pardon is just as essential to political life as to our personal lives. It helps to overcome the antagonisms of the past and opens a path to peace and reconciliation with others. The act of forgiving, as political theorist Hannah Arendt puts it, allows us “ to begin again ” and to create a new future together.
But how can we reconcile this need for pardon with the impossibility to forgive everything?
One answer can be found in the work of French philosopher Paul Ricoeur. Ricoeur talks about the “ incognito of forgiveness ” – “forgiveness” literally translates to “pardon” in French. Acknowledging the difficulty of turning pardon into a universal legal rule or norm, Ricoeur suggests that pardon can exist only as an exception to legal rules and institutions.
Pardon, in Ricoeur’s words, “can find refuge only in gestures incapable of being transformed into institutions. These gestures…designate the ineluctable space of consideration due to every human being, in particular to the guilty.” In other words, it has to fly under the radar of rules and institutions.
This insight is alluded to by Justice Marshall in his Wilson ruling. Marshall states that pardon is “the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the Court.” The pardon remains incognito, or under the radar, in the sense that it is an extra-legal act that does not pass through legal institutions.
In these last days of the Biden administration, this incognito of pardon offers an important reminder of the need for pardon as well as its limitations. The democratic transfer of power always involves an implicit act of pardon that remains incognito. It allows for a fresh start in which society can acknowledge the past transgressions of an outgoing administration, but move on with the hope to begin again.
Though critics of the president may reject individual acts of pardon, especially involving family members, society should not give up on the power of pardon itself: It brings a renewal of hope to democracy.
Editor’s note: This is an updated version of an article first published on Dec. 15, 2020.
Davidson is a professor of philosophy at West Virginia University.
This article is republished from The Conversation under a Creative Commons license. Read the original article.
U.S. Secretary of State Marco Rubio delivers a keynote speech at the 62nd Munich Security Conference on Saturday, Feb. 14, 2026, in Munich, Germany.
Marco Rubio is the only adult left in the room
Finally free from the demands of being chief archivist of the United States, secretary of state, national security adviser and unofficial viceroy of Venezuela, Marco Rubio made his way to the Munich Security Conference last weekend to deliver a major address.
I shouldn’t make fun. Rubio, unlike so many major figures in this administration, is a bona fide serious person. Indeed, that’s why President Trump keeps piling responsibilities on him. Rubio knows what he’s talking about and cares about policy. He is hardly a free agent; Trump is still president after all. But in an administration full of people willing to act like social media trolls, Rubio stands out for being serious. And I welcome that.
But just because Rubio made a serious argument, that doesn’t mean it was wholly persuasive. Part of his goal was to repair some of the damage done by his boss, who not long ago threatened to blow up the North Atlantic alliance by snatching Greenland away from Denmark. Rubio’s conciliatory language was welcome, but it hardly set things right.
Whether it was his intent or not, Rubio had more success in offering a contrast with Vice President JD Vance, who used the Munich conference last year as a platform to insult allies and provide fan service to his followers on X. Rubio’s speech was the one Vance should have given, if the goal was to offer a serious argument about Trump’s “vision” for the Western alliance. I put “vision” in scare quotes because it’s unclear to me that Trump actually has one, but the broader MAGA crowd is desperate to construct a coherent theory of their case.
So what’s that case? That Western Civilization is a real thing, America is not only part of it but also its leader, and it will do the hard things required to fix it.
In Rubio’s story, America and Europe embraced policies in the 1990s that amounted to the “managed decline” of the West. European governments were free riders on America’s military might and allowed their defense capabilities to atrophy as they funded bloated welfare states and inefficient regulatory regimes. Free trade, mass migration and an infatuation with “the rules-based global order” eroded national sovereignty, undermined the “cohesion of our societies” and fueled the “de-industrialization” of our economies. The remedy for these things? Reversing course on those policies and embracing the hard reality that strength and power drive events on the global stage.
“The fundamental question we must answer at the outset is what exactly are we defending,” Rubio said, “because armies do not fight for abstractions. Armies fight for a people; armies fight for a nation. Armies fight for a way of life.”
I agree with some of this — to a point. And, honestly, given how refreshing it is to hear a grown-up argument from this administration, it feels churlish to quibble.
But, for starters, the simple fact is that Western Civilization is an abstraction, and so are nations and peoples. And that’s fine. Abstractions — like love, patriotism, moral principles, justice — are really important. Our “way of life” is largely defined and understood through abstractions: freedom, the American dream, democracy, etc. What is the “Great” in Make America Great Again, if not an abstraction?
This is important because the administration’s defenders ridicule or dismiss any principled objection critics raise as fastidious gitchy-goo eggheadery. Trump tramples the rule of law, pardons cronies, tries to steal an election and violates free market principles willy-nilly. And if you complain, it’s because you’re a goody-goody fool.
As White House Deputy Chief of Staff Stephen Miller said not long ago, “we live in a world … that is governed by strength, that is governed by force, that is governed by power. These are the iron laws of the world that have existed since the beginning of time.” Rubio said it better, but it’s the same idea.
There are other problems with Rubio’s story. At the start of the 1990s, the EU’s economy was 9% bigger than ours. In 2025 we were nearly twice as rich as Europe. If Europe was “ripping us off,” they have a funny way of showing it. America hasn’t “deindustrialized.” The manufacturing sector has grown during all of this decline, though not as much as the service sector, where we are a behemoth. We have shed manufacturing jobs, but that has more to do with automation than immigration. Moreover, the trends Rubio describes are not unique to America. Manufacturing tends to shrink as countries get richer.
That’s an important point because Rubio, like his boss, blames all of our economic problems on bad politicians and pretends that good politicians can fix them through sheer force of will.
I think Rubio is wrong, but I salute him for making his case seriously.
Jonah Goldberg is editor-in-chief of The Dispatch and the host of The Remnant podcast. His Twitter handle is @JonahDispatch.