“The constitutional provision that gives the president virtually unlimited authority to grant clemency was not an afterthought. The founders understood very well that there could be miscarriages of justice even under the rule of law. By allowing the president to commute unjust sentences or pardon deserving petitioners who had served their time, they sought to ensure that the workings of the courts could be tempered with mercy.”

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So begins an editorial in the New York Times in respect of what it calls “Mercy in the Justice System.” It happens that we share the Times sense that the pardon power is an under-utilized check and balance, but we think the Gray Lady understates her own case. She says the Founders understood that there could be miscarriages of justice even under the rule of law. But the Founders didn’t limit the pardon power to miscarriages. Nor, for that matter, to the commuting of “unjust sentences” or the pardoning of petitioners who are “deserving” and had “served their time.”

No, the magnificent thing about the pardon power is that it is the least fettered in the whole second Article. The power is limited only to offenses against the United States, meaning, crimes under state laws are out of reach of the President. And the pardon power mayn’t be used in cases of impeachment. But other than that, a president can do what he wants, which is why President Clinton, say, could reach down among all those convicted of drug offenses and pardon his own brother, Roger, for his cocaine conviction. Under what clause is anyone going to be able to second-guess him?

Too, the Times tries to palm off on its readers the idea that “the concept of mercy went out of fashion by the 1980s, when the country embarked on a mandatory sentencing craze that barred judges from exercising leniency when it was clearly warranted and placed the justice system almost entirely in the hands of prosecutors.” We’re no big fans of the mandatory sentencing craze, either, but if you’re an editorial writer you want to make sure you don’t transmogrify that issue into the question of the presidential pardon power.

The fact is that while Presidents Reagan and Clinton were both less frequent pardoners than Truman, Eisenhower, Kennedy, Johnson, Nixon, and Ford, they were both active pardoners. The real stinginess in respect of the pardon power came in with Presidents George H.W. Bush, George W. Bush, and — startlingly — Obama. The current president has been by far the least frequent pardoner, exercising the power roughly once every 30 days. Truman exercised it once every day and a half.

The Times suggests the president seek counsel outside the Justice Department, and we couldn’t agree more. This came up in the case of Marc Rich and Pincus Green. The prosecutors who lost the extradition case in Switzerland went bananas when President Clinton issued a pardon, but who were they to judge? The whole point of Mr. Clinton having to act was that the Justice Department had pursued the pair using a law that Congress never intended to be used the way the Justice Department used it and that the Justice Department eventually abandoned.

President Clinton made that point nicely, we thought, in an op-ed piece he wrote in the . . . why, it was the Times. There was a lot of breast-beating in the Justice Department because by its definitions (if not the definitions of the lawyers for Messrs Rich and Green), the pair were fugitives. But then, President Carter, on the first full day of his presidency, pardoned a passel of fugitives who were hiding out in Canada and other countries from the Vietnam-era military draft.

It would be hard but it could probably be proved that more pardons have been offered to fugitives than to those in jail. Which is fine by us. What we’re saying is that the pardon power is vast, unfettered, and under-used and it is, above all else, a check and balance on the other branches. We’re not saying we favor the presidency over the Congress or the Congress over the courts or any one branch over the other. But that’s what we’re talking about when we’re talking about the meaning of mercy — a check on government power.