DUAL ALLEGIANCE: FEDERAL AND STATE TREASON PROSECUTIONS, THE TREASON CLAUSE, AND THE FOURTEENTH AMENDMENT

ALEXANDER GOUZOULES

J.D., cum laude, Harvard Law School, 2014
M.A., Stanford University, 2011
B.A., Emory University, 2008

For if the crime of high-treason be indeterminate, this alone is sufficient to make the government
degenerate into arbitrary power.
” – Montesquieu

You know what we used to do in the old days . . . [w]ith spies and treason, right? We used to handle them a little differently than we do now.” – Donald Trump

Few accusations carry as much weight as treason, the only crime defined in the Constitution. To Blackstone, it was “the highest civil crime which (considered as a member of the community) any man can possibly commit.” Under English law in force at the time of the American Revolution, it was punishable by unique, medieval forms of execution. Modern commentators have described it as “betrayal on the grandest scale possible” and an offense that “still sits atop the criminal pyramid and imposes a stigma unmatched by other crimes.”

Treason is also a crime that defies precise definition and raises unique concerns. The founders of the country were unquestionably guilty of treason when they took up arms against King George III and solicited French aid against the English army. They believed, as did Blackstone and Montesquieu, that treason charges were susceptible to misuse by arbitrary and despotic governments. Because of the dangers posed by potential abuse of the charge, the framers of the Constitution thus drafted the Treason Clause to precisely define the crime and protect the rights of those accused of it. The clause first establishes the scope of the crime and forbids legislative or judicial expansion: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” It then creates a procedural right that would have fit as naturally within the Bill of Rights as it does within Article III: “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.”Finally, the clause prohibits “Corruption of the Blood,”an archaic term for the penalty through which the individual convicted of treason would lose the ability to inherit or pass property.

But like the Bill of Rights, prior to the passage of the Fourteenth Amendment, the Treason Clause applied only to the federal government. While only the federal government may bring a charge for treason against the United States, individuals may also be charged with treason against states to which they owe allegiance. Such cases have received little scholarly attention, yet the development of federal treason law cannot be fully understood without an understanding of the state cases.

The first section of this article outlines the history of American treason prosecutions, emphasizing the under-examined state cases and weaving together the parallel bodies of state and federal treason law. Doing so will update and contribute to the existing scholarship on state treason. The seminal work on federal treason remains James Willard Hurst’s The Law of Treason in the United States, last revised in 1971. As Carlton Larson noted in his article on treason and the War on Terror, apart from Hurst’s work, “there is virtually no scholarship engaging doctrinal issues in American treason law.”

In more recent years, James Wilson has argued that a modern death sentence for treason would violate the Eighth Amendment. George Fletcher has examined how the feudal origins of the treason charge comport with liberal theories of criminal justice. Several authors have examined the applicability of the treason charge to cases arising out of the 9/11 attacks, the War on Terror, and modern cyber-security issues. Virtually unique among treason scholarship because of its focus on state charges is J. Taylor McConkie’s article, which concludes that state treason charges remain viable today.

This article identifies and attempts to correct various historical omissions that have entered into the existing scholarship, popular media, and judicial opinions. It also identifies three general trends that characterize the majority of federal and state treason prosecutions: (1) heightened evidentiary standards imposed by the federal Constitution and most state constitutions, (2) widespread public sympathy for the accused in marginal cases, and (3) a tendency for executives to grant pardons or commute sentences. Each of these three trends is likely to dissuade prosecutors from pursuing treason charges in close cases, which comports with the purpose of the Treason Clause and the intentions of its framers.

In the next section, this article examines the current status of state treason law, as some contemporary authors have questioned whether the charge remains viable. Such uncertainties are partially a product of literature that has consistently overlooked several state treason prosecutions, thus portraying others as more aberrational than they truly were. Given the existing body of precedent from several states, the theoretical viability of state treason cannot reasonably be questioned. I also analyze whether state and federal treason charges have any practical relevance today, proposing that the decline in modern treason prosecutions is not driven by cultural hesitation as to “whether and how we should punish it,” as George Fletcher has suggested. Instead, the three trends identified above have rendered the charge disfavored by prosecutors, who can obtain convictions and harsh sentences for lesser crimes of disloyalty (such as espionage or seditious conspiracy) against offenders whose conduct is colloquially referred to as “treasonous.”

This article presents a case for a partial revival of treason law, accompanied by a de-emphasis on other disloyalty offenses, because the treason charge, with its accompanying constitutional and practical limitations, has historically resulted in a better balance between the security interests of the state and the civil liberties of the accused. The following analysis of state treason law, however, demonstrates that prosecutions for state treason could be (and have been) undertaken for conduct falling beyond the scope of the federal Constitution’s Treason Clause. In the article’s conclusion, I suggest that this outcome is improper under the modern constitutional doctrine of incorporation.

Through the doctrine of incorporation, the Supreme Court has held that virtually all individual rights set forth in the Bill of Rights apply against the states through the Fourteenth Amendment. To determine whether any particular right is incorporated against the states, the Court has analyzed whether that right is “‘fundamental to our scheme of ordered liberty,’ or ‘deeply rooted in this Nation’s history and tradition.’” This article’s review of the history of federal and state treason law in the United States leads to the conclusion that the Treason Clause should be incorporated against the states according to this standard.

To the best of my knowledge, this argument is novel, and it has implications outside of criminal law, such as whether other sections of the pre-1868 Constitution should be incorporated through the Fourteenth Amendment. [Read entire Article here].

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