Pardons are Reviewable

One of the esteemed South African Constitutional Court's most famous decisions is President of South Africa v Hugo. To celebrate the new democracy, President Mandela pardoned all imprisoned women, with children, who committed non-violent offenses. Then a similarly situated male prisoner sued, claiming he had a child and this violated his right to equality. But the Court first had to answer whether the claim was justiciable. The Court said yes, though the man still lost. The Court emphasized that it could likely not adjudicate a single pardon, but this was a group pardon favoring a subordinated gender. The Court referenced other countries where pardons could be examined and looked at British law.

So if Republicans feel free to argue that birthright citizenship under the Fourteenth Amendment is much narrower than heretofore understood, why aren't Democrats even more justified in asking courts to question the irrationality of pardoning those individuals who committed violence on January 6, 2021? Make those people serve their time or make them clearly show remorse. Otherwise, rule that any such pardon is lawless.

Democrats may lose, but let's push the envelope too. Look at how much surprising progress has been made by Republicans after all with novel theories. For example, in response to the passage of the Patient Protection and Affordable Care Act (Obamacare), Republicans and their allies likened the obligation to purchase health insurance to an obligation to eat broccoli. That odd comparison nearly carried the day for them.

Postscript: A long time ago, I authored an article in the South African Law Journal on the bias part of the case.