Returning to the Founding: Does the Presidential Pardon Power Extend to State Offenses? An Originalist Reexamination

I have long accepted the conventional view that the President’s constitutional power to grant pardons extends only to federal offenses leaving violations of state law beyond his reach. This interpretation, drawn from longstanding Supreme Court precedent and modern constitutional commentary, seems straightforward at first glance, and well-established by precedent. However, when one examines the historical and textual record more closely, one begins to question whether this limitation truly reflects the original understanding at the Founding (1787–1789).

The U.S. Constitution grants the President the power “to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment” (Art. II, § 2, cl. 1). Conventional wisdom holds that this limits pardons to federal offenses, excluding violations of state law. Yet this interpretation does not seem to align with the original meaning.

The pardon power derives from the English Crown’s prerogative of mercy, traceable to at least the 8th century under King Ine of Wessex and formalized as a royal prerogative by Parliament during Henry VIII’s reign. The power was broad, limited only later (i.e. by the Act of Settlement 1701 to exclude impeachment). In the colonies, governors exercised delegated pardon authority, but the King retained ultimate power, as seen in George III’s 1771 pardon during North Carolina’s Regulator War (excluding one leader) and George I’s 1717–1718 amnesty to surrendering pirates, which colonial officials were directed to administer locally.

The Framers, well-versed in English common law—including Blackstone’s Commentaries on the Laws of England, which portrayed pardons as a merciful check upon the severity of justice—and informed by colonial experience, adapted this prerogative to a republican structure by vesting it in the President as the unitary chief executive. Records of the Constitutional Convention reflect limited debate on the power to pardon. Proposals included excluding treason (advanced by Edmund Randolph, who feared presidential complicity, but defeated by an 8–2 vote with one divided), requiring Senate or congressional concurrence (rejected to preserve executive independence), and restricting pardons to post-conviction cases (withdrawn after James Wilson noted the utility of pre-conviction pardons to secure accomplice testimony). But there is no recorded discussion as to limiting the power to federal offenses or expressly excluding state offenses. The only limitation ultimately imposed is one that exactly mirrors that on the King’s power: he could not pardon in cases of impeachment.

Now, in the ratification era (1787–1788), “the United States” was overwhelmingly treated as a plural noun. The phrase “United States” was always used with a plural verb: we find only clauses such as “the United States are” and never “the United States is.” Documents refer to “these United States” and “the united States” with the first word often lower case, implying that the phrase had not yet become a unity. The Declaration of Independence described “the thirteen united States of America”; the Articles of Confederation characterizes the arrangement as a “confederacy” of sovereign states, repeatedly employing “united States” collectively; and the 1783 Treaty of Paris recognized the independence of the states as a collective entity. Even after the ratification era was long past, examples of this plural usage persist through the nineteenth century, as we see in the Thirteenth Amendment (1865), which prohibited involuntary servitude “within the United States, or any place subject to their jurisdiction,” and Abraham Lincoln’s reference to “the people of these United States” as sovereign over Congress and courts.

This plural usage reflected the Framers’ conception of the Union as a compact among sovereign states, with the federal government serving as their agent rather than a singular, overarching sovereign supplanting state authority. In this context, “Offences against the United States” could reasonably encompass offenses against the states in their united, confederated capacity. Such a reading aligns with the royal prerogative: the King’s pardon power reached colonial offenses without jurisdictional exceptions, and governors’ delegated authority was merely derivative. Absent explicit textual restriction or Convention discussion of such a limit—despite attention to other boundaries—no compelling evidence suggests the Framers intended to narrow the power below its English antecedent.

No Founding-era evidence suggests an intent to make the power inferior to the King’s. The Convention’s silence on such a limit—amid debates over treason, timing, and Congressional approval—supports this. If the Framers meant federal-only, why did they omit explicit language, given their familiarity with dual sovereignty?

 Ex parte Garland (71 U.S. 333, 1866), in the mid 19th Century, still describes the power as “unlimited” (except impeachment), extending to “every offence known to the law” exercisable before, during, or after proceedings, without legislative fetter. It did not exclude state offenses. Not until Ex parte Grossman (267 U.S. 87, 1925)—addressing criminal contempt under federal Prohibition law—did the Court state that “Offences against the United States” was added by the Committee on Style “presumably to make clear that the pardon of the President was to operate upon offenses against the United States, as distinguished from offenses against the states.”

Note that the year when this interpretation finally appeared is 1925, and this is exactly the period when linguistic usage now shifted decisively towards treating “the United States” as a singular, and thus an entity separate from the states, as we can see from Google’s Ngram Viewer, which shows the now-changed pattern of linguistic usage. Data from Google’s Ngram Viewer confirms plural dominance from 1780–1860, peaking around 1820–1860, then declining post-Civil War, until it reached its nadir around 1925..

An originalist reading thus must question whether the power to pardon is limited to Federal crimes. The Framers’ plural conception of “the United States,” combined with the prerogative’s historical breadth and the delegates’ silence during the founding Convention, suggests no necessary exclusion of state offenses. The King pardoned colonial crimes; why would the Framers—rejecting monarchy but vesting executive pardon in one person—impose a restriction never discussed?

To conclude, then, we can state the following with reasonable certainty:

1. The presidential power to pardon granted by the Founders was modeled precisely upon that of the King’s.
2. The King’s power to pardon was delegated to the governors of the colonies, but remained with him, and could be exercised by him in the individual colonies despite his delegation.
3. The office of governor of the King’s colonies is the historical antecedent of the governor of a state.
4. Therefore, the presidential power to pardon, if it mirrored the King’s, should extend to the states.
5. Supporting this view, the phrase “United States” was clearly viewed at the Founding as plural, and thus, by implication, the presidential power to pardon extends to the states.

Not until 1925, when the “United States” had become treated as a singular, and thus to mean Federal power alone, did the presidential power to pardon become limited only to Federal offenses.

If therefore Originalism means anything, the courts should reconsider their modern interpretation of Article II.

—Anthony Tye Rodrigues, Anthony.tye.rodrigues@gmail.com , 02/03/2026

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