The Persistence of Pardons and the End of Attainder

Abstract

Pardons are a well-known form of lawful but extrajudicial power over criminal classifications. They are still in regular use in rule of law regimes around the world. Attainder is the less well-known power to condemn via a legislative rather than a judicial act. Despite their structural similarities, pardon and attainder have exhibited divergent trajectories. One is ubiquitous, the other extinct. Focusing on the divergent trajectories of pardon and attainder during the framing of the U.S. Constitution and thereafter, the article advances an explanation for these phenomena based on asymmetries in the relational facts linking pardon and attainder to other thick moral constructs that constituted the moral system of the framers and their successors. Those facts mattered in their own right, but it was in light of the matrix of founding era moral interpretations that the framers grasped and institutionalized their significance.