It should concern all Americans that powerful people are willing to label historic figures, who never received due process, criminals or traitors.
“The Confederacy, the American Civil War was fought, and it was an act of rebellion, an act of treason at the time against the union…” —
General Mark Milley
Those in the know will respond that no Confederate was ever convicted of treason. This is often followed by a retort that they received a pardon so that means they are guilty. Can that be right? What about due process? Most citizens are not lawyers, but we understand that our life, liberty, and property are protected by due process. It is a fundamental right.
After the American Civil War there were a series of amnesties and individual pardons. This is what people point to as assigning guilt. But like with many things, most people are clueless. Some will point to the 1915 Supreme Court case Burdick v. United States where the court said that a pardon “carries an imputation of guilt; acceptance a confession of it.”
That does not sound good. Have no fear. Here is what Michigan State University law professor Brian C. Kalt pointed out in the Washington Post in 2018.
“Burdick was about a different issue: the ability to turn down a pardon. The language about imputing and confessing guilt was just an aside — what lawyers call dicta. The court meant that, as a practical matter, because pardons make people look guilty, a recipient might not want to accept one. But pardons have no formal, legal effect of declaring guilt.”
You don’t have to only take Mr. Kalt’s word for it either. In 2021 the 10th U.S. Circuit Court of Appeals’, ruled in favor of former First Lieutenant Clint Lorance that his accepting President Trump’s pardon was not a legal confession of guilt.
Do we live in a country where a government official can pardon a person prior to a conviction and by virtue of the pardon they are now a felon or traitor? Thankfully not. We should be wary of people who would trample the 5th Amendment to make political points.