For the Balkinization Symposium on Ruti G. Teitel, Presidential Visions of Transitional Justice: An American Legacy of Responsibility and Reconciliation (Oxford University Press, 2025).
Bradley D. Hays
Ruti Teitel’s Presidential Visions of Transitional Justice (hereafter PVTJ) offers a timely and provocative account of how American presidents have engaged in practices of acknowledgment, contrition, and repair in the aftermath of conflict or state-inflicted harm. The book’s central claim regarding the presidential role in transitional justice—that presidential involvement in transitional justice is part of a repertoire of constitutional and political authorities—takes on particular resonance when viewed against the recent rejection of such politics by the Trump administration (2-3). Teitel situates President Obama’s well-known gestures of acknowledgment toward foreign audiences (i.e., the “apology tour”) not as idiosyncratic choices, but as part of a longer tradition through which presidents attempt to mend damaged relationships abroad. Yet the stark partisan backlash against these practices raises difficult questions about whether the presidency still possesses the structural and political capacity to engage in transitional justice. This review assesses Teitel’s analysis and explores how contemporary polarization, weakened rule-of-law norms, and diminished interbranch cooperation complicate the very practices she identifies.
PVTJ makes a notable contribution by
excavating the historical and constitutional foundations of presidential
transitional justice. Teitel argues that presidents, as the nation’s “chief of
state” in foreign affairs, have long exercised a distinctive role in addressing
the aftermath of conflict, wrongdoing, or systemic injustice. The roots of
this role are grounded in the president’s authority in foreign relations (33)
and in the pardoning power, which early constitutional commentators—most
notably Alexander Hamilton—saw as an essential tool of statecraft (77). Clemency, in this conception, was not solely an
instrument of mercy but a mechanism for reconstructing political communities
fractured by rebellion, war, or policy failures. Teitel’s reading of executive
clemency thus provides the legal and normative architecture for understanding
why transitional justice might be expected to emerge from presidential, rather
than legislative or judicial, initiative.
The
history of pardon practices supports Teitel’s claim that clemency is
foundational to presidential transitional justice. George Washington’s pardons following the
Whiskey Rebellion exemplify the Hamiltonian idea that forgiveness could
reintegrate dissenting factions and help stabilize the new republic.[1]
John Adams’s pardons after Fries’s Rebellion reflected similar reasoning,
though their reception reveals how what is justified as conciliatory statecraft
can advance electoral positioning. According to Teitel, Andrew Johnson was a
deviation from this tradition—his sweeping post–Civil War clemency program was
an effort not at reconciliation but at restoring the antebellum political elite
and consolidating his own power. Ulysses
Grant’s support for the Amnesty Act of 1872 represented a return to
transitional logic.
Notably,
presidents used clemency to achieve more than reconciliation. Washington sought to concretize the
Federalist vision of the proper (i.e., limited) understanding of popular
sovereignty. Adams’s political adversaries believed he used the pardons to seek
political advantage in the electorally pivotal state of Pennsylvania. Thomas Jefferson also used pardons to both
move past the partisanship of Sedition Act convictions and to score points
against partisan adversaries in the judiciary and to reinvigorate juries.[2] Grant’s pardons were restorative to Confederate
elites who were banned from office but Grant gave clemency only after
Republicans had secured a sufficiently large coalition following the
ratification of the Fifteenth Amendment that many Republicans no longer viewed
former Confederates as a threat to holding power. Taken together, these examples illuminate
both the persistence of restorative statecraft in presidential practice and the
difficulty of separating its constitutional and moral dimensions from more
instrumental political motives.
The
historical case studies also highlight an important limitation that Teitel
acknowledges but does not fully explore: presidential leadership, while
essential, is rarely sufficient to translate transitional visions into durable
policy. Washington’s effort to reconcile with Great Britain required Senate
ratification of the Jay Treaty to establish arbitration mechanisms capable of
resolving outstanding disputes (57-59). By contrast, Woodrow Wilson’s
aspiration for a new international order grounded in cooperation and collective
security collapsed when the Senate rejected the Treaty of Versailles and
membership in the League of Nations (131). These cases demonstrate that
transitional justice—even when rooted in the president’s constitutional
authority—depends on interbranch cooperation and, at times, broad political
consensus. Presidents can articulate and initiate a transitional justice
agenda, but presidents alone cannot fully institutionalize it.
The
contemporary political environment magnifies these constraints. Modern
polarization, combined with the rise of negative partisanship and high levels
of competition between the two parties, sharply reduces the incentives for
opposition parties to support a presidential initiative framed as conciliatory.[3]
Interbranch cooperation has become increasingly unlikely at precisely the
moments when transitional justice would require it. This dynamic helps explain
why, as Teitel notes, recent presidential practices have tended to involve
symbolic gestures—apologies, acknowledgments, statements of contrition—rather
than treaty-based or policy/institutional reforms. Moreover, Donald Trump’s
explicit repudiation of Obama’s reparative efforts transformed transitional
justice into a partisan identity marker, making its pursuit even costlier for
subsequent administrations. Perhaps most troubling, Trump’s use of clemency,
particularly in cases involving political allies, undermined the rule-of-law
principles that make the pardoning power a plausible foundation for transitional
justice in the first place. When clemency becomes associated with impunity
rather than restoration, its legitimacy as a tool of transitional justice is
fundamentally weakened.
PVTJ ultimately succeeds in identifying a
consequential but underexamined dimension of presidential authority and
political development. Teitel convincingly demonstrates that American
presidents have, across time, engaged in efforts to repair the nation’s moral
and political standing following episodes of conflict or wrongdoing. She also
persuasively grounds this practice in constitutional structure, showing how the
pardoning power and the president’s diplomatic role create space for
transitional justice. The account in PVTJ also invites reflection on how
dramatically the political environment has changed. The institutional pathways
that once enabled presidents to translate transitional visions into policy now
appear obstructed by structural polarization and declining commitments to legal
and constitutional norms. If the need for transitional justice persists—and
contemporary developments at home and abroad suggest that it does—Teitel’s
framework underscores both the possibilities and the growing limitations of presidential
leadership in addressing that need.
Bradley D. Hays is an associate professor of political science at Union College. He can be reached at haysb@union.edu.
[1] Crouch, Jeffrey. The
Presidential Pardon Power. Lawrence: The University Press of Kansas, 2009.
[2] Hays, Bradley D.
“The Politics of Clemency in the Early American Presidency: Power Inherited,
Power Refashioned.” Journal of Policy History 34, no. 1 (2022), 91-115.
[3] Lee, Francis E. Insecure
Majorities: Congress and the Perpetual Campaign. Chicago: The University of
Chicago Press, 2016.