On Treason: A Citizen’s Guide to the Law, By Carlton F.W. Larson (304 Pages)
“You traitor!” Maybe, that is something you called someone who you believed turned against you in some horrible fashion. It is something that is commonly tossed around as a partisan epithet as well, along with “treasonous” or the like. That is a common everyday usage of such terms.
The constitutional usage of the term “treason,” however, is much more narrow. It is specifically defined — unlike any other crime in the U.S. Constitution:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.United States Constitution
What does that mean? This book provides a road map. We start with the origins of the federal constitutional rule, which was understood to be much narrower than historical requirements for treason. Then, we get a breakdown of the various components of treason prosecutions.
Along the way, the book provides some examples of people labeled as traitors throughout American history from Benedict Arnold to Adam Gadahn, part of the “War on Terror.” These examples help to provide clarity regarding just what treason is and is not under American law.
We might toss around “traitor” a lot, but “treason” as a legal matter is a much more narrow and special crime. This book provides us with an ability to fully understand its many aspects.
Constitutional terms like “treason” can only be fully understood by looking at both the law and the history behind the law. There are many possible ways how something like “free speech” can be understood. Our law as a whole and how we lived it helps us pick a specific path.
Should I Read It?
The subtitle of this book promotes it as “A Citizen’s Guide to the Law.”
The book is not meant to be a specialized legal work. It covers some specific legal topics, but is targeted to the average citizen. And, I think it succeeds in its aims.
On Treason provides a down to earth look at the subject matter. The book carefully discusses the components of treason, in a way not only appropriate for an expert.
Do not let the legal subject matter scare you, if that is not usually your cup of team. The book clearly explains while providing multiple historical narratives that will interest you as well. The back and forth keeps your interest while helping the reader understand the material.
The reasoned tone, with some judgments made, also is helpful. Constitutional matters can be quite controversial. A calm, reasoned approach here provides the reader smooth sailing.
This book would be a good model for discussions regarding other constitutional concepts.
“Treason” and “traitor” is regularly used as “rhetorical hyperbole” for some perceived disloyalty against a person, institution, or America itself.
“Treason,” however, also has a specific legal meaning. It is the “most significant offense known to American law.” But, it has been much harder to determine exactly what it means. This is the aim of the book: to flesh out its meaning, assisted by a look at various key historical events.
Origins of American Treason Law and the Adoption of the Constitution’s Treason Clause
The definition of “treason” under English law was broad, even covering counterfeiting and killing of a minor religious or royal official. It did provide a precedent for some limit, clearly spelled out in the statute book. American law narrowed things much further.
Treason was seen as a particularly horrible crime; one that merely being accused of would be deemed particularly horrible. This also explains why the Constitution carefully defines it; mere opposition to the government is not “treason.” That is protected free speech.
Treason requires committing war on the United States or assisting its enemies. Specific rules (such as testimony of two witnesses or confession in open court) are required for punishment. And, punishment itself is carefully limited; treason is a personal crime. It should not taint the person’s family forever more.
The book discusses various people accused of treason throughout American history.
Benedict Arnold is an easy case. The others raise a range of complex questions.
Aaron Burr was involved in an early dispute over the requirements of treason, including the “overt act” rule. The failure to convict him shows the high standards of proof required.
Hipolito Salazar’s execution appears to be a miscarriage of justice during the Mexican War.
Cases against supporters of fugitive slaves helped to show that “treason” had a limited meaning, not just interfering with the carrying out of federal laws. Jefferson Davis, on the other hand, was guilty, but raised complicated policy questions that caused many problems.
“Tokyo Rose” and others who broadcasted for the enemy during WWII raised both First Amendment questions and questions of how much blame should be applied to the accused. Free speech questions also arise in other cases involving Jane Fonda and Edward Snowden.
The war on terror, including the case of Adam Gadahn, also raises various complex questions. Some “enemy combatants” claim they are merely advocates. There are also special questions of proof and the controversy of killing combatants by drone strike without a trial.
What is “Levying War Against the United States”?
Levying war against the United States is one of the two categories of actions that constitutionally is defined as treason. Early cases, such as the Whiskey Rebellion, suggested that maybe this involved interference with the federal government in general.
But, over time, it is generally understood to be some actual attempt to overthrow the government. The provision is somewhat obsolete, the clear case requiring some actual armed body of people trying to overturn the government. A lone terrorist, like Timothy McVeigh, very well might not be a “traitor.” There are still many other laws to use against such people.
[The author later commented on the attack on the U.S. Capitol on 1/6/21, which many people argue was an “insurrection.” Larson argues as a matter of original understanding that it is probably “treason,” but it is much less clear today. Those involved in the invasion are and were found to be guilty of many criminal laws. But, this shows the narrow nature of “treason.”]
The Forgotten Crime of Treason Against A State
The Treason Clause applied to federal prosecutions. There are also state laws addressing treason against states. The rules there are different, depending on state requirements, while still needing to meet basic federal rules of due process. State treason cases are basically historical relics, but involve such famous cases as John Brown and the Dorr’s Rebellion.
Who Is Subject to American Treason Law
A person can be guilty of treason if they have an obligation to follow the laws of a country. Someone need not be a citizen; they must have a duty of allegiance to the United States. Therefore, an ambassador or an invading army (such as the British during the War of 1812) can not be guilty of treason. On the other hand, a foreigner here on a student visa might be.
Special cases such as corporations, how to revoke one’s U.S. citizenship, and the status of blacks and slaves in antebellum times are also covered.
Who Are Enemies of the United States?
Treason can be committed by a person giving special assistance to “enemies.” Many people can violate United States law by illegally assisting foreign nations, such as passing along classified information to Israel. But, it is not treason without the involvement of an “enemy.”
An enemy is a foreign power; a domestic group like the KKK or a street gang is not an “enemy” for these purposes. A declaration of war, a rare event in U.S. history, makes a nation an enemy. A formal declaration of military force, including during the “Korean War,” also would apply.
The Soviet Union was not an enemy during the Cold War. On the other hand, a nation or even a “rogue” group like Al Qaeda, might act in a war-like way. They too would be “enemies.”
“Adhering to the Enemy, Giving It Aid and Comfort”
A certain amount of assistance, using legal terms arising from 14th Century English precedent, to the enemy can result in a treason prosecution.
But, just what these terms mean is unclear. Roughly speaking, it involves some benefit to the enemy that is directly related to the military conflict with the United States.
The person actually has to help the enemy, not merely attempt to do so. Something otherwise protected by the Constitution, like writing a supportive editorial, is not treason.
The Requirement of Traitorous Intent
A person is only guilty of treason if they intentionally betrayed the United States. If the act was merely personal, such as helping a family member, it would not be treasonous.
Edward Snowden released materials helpful to Al Qaeda, but does not appear to have done so to intentionally betray the United States.
World War II cases often turned on the specific intent shown. Jane Fonda’s actions in North Vietnam are also discussed. She was not prosecuted for a mixture of political and constitutional reasons such as questions of free speech and possible claims of selective prosecution.
Treason has rarely been prosecuted over United States history, even when the person involved was not liable to be executed. Should treason law be updated?
The author thinks not. First, there is not enough of a need to spend the large amount of effort necessary to amend the Constitution. Second, it is unclear what the new rule should be and there is too much of a chance it will be too broad. Finally, there are a range of other crimes to deal with other offenes. There is no compelling need to change the rules.
Appendix: Quiz Yourself
Ten hypothetical scenarios are examined: treason or not treason?
Points To Ponder
“Treason” has over our history been rarely prosecuted. Why is this so? Does it make treason in 21st Century America somewhat obsolete? Does a new definition of treason make sense?
Treason is carefully defined in the U.S. Constitution. Or, at least, there is a complicated definition applied. How useful is this? Should other constitutional terms be defined as carefully? Do the detailed rules in the 12th and 25th Amendments help?
About the Author
Carlton F.W. Larson teaches American constitutional law and English and American legal history.
He also wrote The Trials of Allegiance: Treason, Juries, and the American Revolution.
(Larson’s expertise in this area was helpful in the writing of The Taking of Jemima Boone: Colonial Settlers, Tribal Nations, and the Kidnap That Shaped America by Matthew Pearl. Daniel Boone himself was accused of treason. That book is also recommended.)
Is On Treason a Reliable Source?
This book is written by a scholar of the material covered. Larson not only teaches American law and legal history, but has written another book involving treason’s place in American history.
The book is well researched and sourced with extensive endnotes. Various matters covered involve complex issues where the final answer is a judgment call. This is carefully recognized. Taking into consideration all of this, the book is recommended as a reliable source.
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