Why Amnesty Is the American Way
WHY YOU SHOULD CARE
Because forgiveness, as Gandhi put it, is the attribute of the strong.
By Sean Braswell
Blanket amnesty for hundreds of thousands of wrongdoers was deeply controversial. Many could not fathom forgiving people who had so flagrantly disobeyed the nation’s laws. Rewarding illegal conduct with amnesty suggested, as one Republican senator from Indiana put it, “that it was simply an honest difference of opinion between parties in which there was no criminality on either side.”
And yet with his Proclamation of Amnesty and Reconstruction on Dec. 8, 1863, President Abraham Lincoln initiated an enormous conciliation process that would help reunify the fractured nation. In May 1865, just weeks after Lincoln’s assassination at the end of the Civil War had left many Americans howling for revenge, Union-run prisons in the Confederate capital of Richmond, Virginia, in keeping with the fallen leader’s proclamation, began to release Rebel soldiers. The cost of their freedom and renewed American citizenship: a simple oath of allegiance.
“Amnesty” is one of those unutterable words in American politics today, deployed as a shorthand rebuke of those proposing to confer legal status on the more than 11 million undocumented immigrants in the U.S. Even Democratic front-runners Hillary Clinton and Bernie Sanders, who support a path to citizenship for illegal immigrants, shy away from the word “amnesty.” After all, calls from their Republican rivals, especially Donald Trump, to deport illegal immigrants and build a fortification on the Mexico border, have found support from the electorate.
Yet amnesty is a concept that has played a remarkable, and mostly positive, role in American history. No less than the likes of Lincoln, George Washington and Ronald Reagan have availed themselves of the power to forgive a group’s unlawful trespasses in the hopes of resolving massive political challenges and forging a stronger, more unified citizenry. And, as history demonstrates time and again, we should not forget just how powerful forgetting can be.
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From the Greek “amnēstia,” or forgetfulness, amnesties are general pardons, either full or conditional in nature, that exempt a certain group or class from punishment. In the U.S., the power to grant legal amnesties primarily resides in the president, under Article II of the Constitution, but Congress has also conferred them through legislation.
Fresh from experiencing the uprising of Massachusetts farmers known as Shays’s Rebellion, the framers of the Constitution knew, as Alexander Hamilton put it in The Federalist Papers No. 74, “there are often critical moments, when a well-timed offer of pardon to the insurgents or rebels may restore the tranquility of the commonwealth.” Several years later when a new liquor tax sparked the Whiskey Rebellion in western Pennsylvania, President George Washington confronted the insurrection with 12,000 troops and an army of pardons, offered not just to the rebels but the entire agitated populace — “a shrewd tactical move designed to calm resistance,” says Thomas P. Slaughter, a professor of American history at the University of Rochester.
Since then, amnesty has been conferred not just on political insurgents but on everyone from pirates to polygamists. President Harry Truman used it to pardon 1,500 World War II draft resisters and 9,000 deserters in the Korean War. In the wake of the conflict in Vietnam, President Jimmy Carter again issued a broad amnesty to draft evaders. But by far the most significant display of its power came after the Civil War, when over 200,000 former members of the Confederacy, traitors not just under law but under the Constitution itself, were placed on a pathway to citizenship.
As it became clear that the Union was going to prevail in the lengthy conflict, Lincoln and other leaders turned their attention to the Herculean task of unifying the torn nation. How to handle the Southerners, from the politicians to the rank and file, who had actively aided the insurrection was no mean feat. Over the course of the war, as scholars John Martin Davis Jr. and George B. Tremmel chronicle in Parole, Pardon, Pass and Amnesty Documents of the Civil War, Lincoln grew determined, despite opposition from many in his own party, to make it easy for former Confederates to regain their citizenship. “Pardons and amnesty seemed to herald his hope of national reconciliation,” the authors write of Lincoln, whose lenient but limited amnesty proclamation in 1863 required only a loyalty oath but excluded Confederate officers and political leaders.
After Lincoln’s assassination in April 1865, tensions flared and efforts were renewed to halt further amnesty. Some proposed conditional amnesty requiring acts of good citizenship, while many Radical Republicans in Congress argued that wartime loyalty be the test for restoration of rights and privileges because it better “preserved the Union’s moral victory.”
The next president, Andrew Johnson, however, followed Lincoln’s more generous approach, and by his fourth amnesty proclamation, the so-called Christmas Proclamation of 1868, he had restored “all rights, privileges and immunities under the Constitution” to almost all former Rebels. And after Congress passed the Amnesty Act of 1872, full citizenship rights were denied only to 300 to 700 former Confederate leaders who were disqualified from holding future office. In fact, the full citizenship rights of Confederate President Jefferson Davis and General Robert E. Lee would not be restored until the 1970s — not that full citizenship could do either one much good by that point.
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Sometimes reconciliation is more powerful than a “moral victory,” not to mention more moral. Just think about what Lincoln’s view of amnesty accomplished, and what was forgotten. In an effort to preserve the slavery of close to 4 million Americans, the Confederacy had renounced allegiance to the U.S., initiating a conflict that would claim more American lives than almost all other wars combined. Whatever crime today’s undocumented immigrants may have committed, it is a far cry from treason and civil war. “Suppose, though, that Lincoln had been filled with the spirit of today’s Republicans,” writes Washington Post columnist Harold Meyerson. He “would never have let the Confederates regain citizenship.… A large share of the nation, certainly of the white South, would have drifted endlessly in a legal limbo.”
But forgetting a crime doesn’t have to mean condoning it, or even forgiving it. A point that Jimmy Carter made on his first day in office in 1977 when he pardoned hundreds of thousands of Vietnam draft dodgers. Carter avoided using the term amnesty and emphasized that the crimes were forgotten, though not forgiven, but made clear his belief that “reconciliation calls for an act of mercy to bind the nation’s wounds.”
Facilitating political reconciliation, however, is not just about mercy, it’s also about making a crude, utilitarian calculation about the broader public good. Amnesty, as Supreme Court Justice Oliver Wendell Holmes put it rather bluntly in 1927, is really “the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.”
One president who made such a calculation, and in the area of immigration reform, was Ronald Reagan, who signed the Immigration Reform and Control Act in 1986, which both ramped up border security and offered amnesty to nearly 3 million illegal immigrants who had entered the U.S. before 1982. And the former B-movie actor was not afraid of the A-word. “I believe in the idea of amnesty for those who have put down roots and who have lived here,” Reagan announced during a 1984 presidential debate with Walter Mondale, “even though … they may have entered illegally.”
Bringing today’s illegal immigrants out of the shadows of legal limbo and into the mainstream of American life through a similar provision of amnesty could go a long way to healing another of America’s long-standing sores and political stalemates. Deploying pardons wisely can “promote sensible public policies,” says Anthony Gaughan, Drake University Law School professor and author of The Last Battle of the Civil War. “Congress would be wise to learn from history and adopt President Reagan’s sensible approach to unauthorized immigrants.”
Of course, offering amnesty is not always a high-minded affair. George Washington’s securing of mass loyalty oaths during the Whiskey Rebellion was actually “a disingenuous tactic in a larger administration strategy for asserting federal control of the western region of the country,” says William Hogeland, author of The Whiskey Rebellion. And, by their nature, blanket pardons can also have divisive and unintended consequences. As Gaughan tells OZY, Carter’s amnesty for Vietnam draft evaders was enormously controversial at the time, as was Andrew Johnson’s pardon of Rebel Southerners, many of whom would later help suppress the civil rights of African-Americans.
And undoubtedly, the amnesty provision of the 1986 immigration reform, coupled with a failure to secure the border, has incentivized more immigrants to come to America illegally, a situation that Peter Robinson, a Reagan speechwriter, tells NPR would have upset his former boss, even if Reagan still “would have felt taking those 3 million people and making them Americans was a success.”
In the bigger scheme of things, that is what we are talking about: millions of new citizens, new Americans, another key ingredient in a nation that is not only a melting pot but a confederacy of the pardoned. Call it what you will — amnesty, legalization, mercy or political expediency — but surely we, the descendants of traitors, rebels, criminals, pirates, deserters and undocumented immigrants, have it in ourselves to forget one more transgression so that in the act of forgiving, we may remember how we too have been forgiven.