By Ryan McMaken
The word “treason” has enjoyed something of a renaissance in recent years—on the Left. It used to be more popular on the Right. During the Cold War, conservatives frequently employed the word to demand their ideological enemies be exiled or executed. Nowadays, anti-immigration activists frequently denounce their opponents as “the treason lobby.”
But it’s on the Left that the word appears to have its most devoted advocates at the moment. Robert Reich, for instance, is sure that Donald Trump is guilty of treason, and Trump has been accused of treason since at least 2018 for a variety of supposed crimes such as “collusion” with the Russians. In the wake of the January 6 riot, there has been no shortage of commentary denouncing Trump supporters overall as guilty of treason.
On the other hand, those who suspect—correctly—that neither Trump nor his supporters have done anything that fits the legal definition of treason have often turned to the lesser charge of “sedition” instead.
Neither term has any place in a free society. Words like “treason” and “sedition” are both premised on the idea that members of society can somehow betray the regime, and that maintenance of the regime is something everyone ought to value. Even worse, the use of these terms suggests that the user believes those guilty of treason or sedition should be subject to harsher penalties because their “seditious” acts were committed against the very special people who work for a regime.
In in free society, however, it is recognized that no one “owes” the government allegiance or approval or loyalty. In a free society, government agents like US soldiers or the US Capitol police are not special people deserving of special legal protections beyond what any private citizen would receive. In a free society, what is treason one day is not suddenly treason the next day because there are different people in power.
Unfortunately, treason and sedition (of various types) have long been prosecutable offenses in federal law. Moreover, most state constitutions and state statute books contain their own provisions for prosecuting these “crimes,” accompanied by often-harsh penalties. These laws—at any level of government—are neither necessary nor prudent, and they exist primarily to enhance the powers that regimes have over their hapless taxpayers and subjects.
The time has come to abolish legal concepts like treason and sedition altogether.
Subjects Do Not Owe the Regime Anything
Terms like “treason” and “traitor” perpetuate the myth that Americans owe something to the regime, or that the regime’s coercive monopoly is somehow based on a free and voluntary agreement—an imaginary “social contract”—between the regime and those who live under it.
The so-called “social contract,” however, is obviously no contract at all. We can see this in how only one side of the contract is held to the bargain. We are told we ordinary people must pay taxes and be loyal to the regime as “the price we pay for civilization,” or because the regime “keeps us safe.” If we don’t keep up our end of the “contract,” we are likely to end up in prison. But what happens when the regime doesn’t keep up its end of the bargain? What happens when the government allows things like 9/11 to happen, or the regime floods cities with unscreened foreign nationals by doling out free housing and free cash to anyone who shows up? What happens when police officers refuse to confront a school gunman because the safety of government agents is deemed more important? Is the contract voided? Of course not. You, fellow subject, are required to keep paying for that social contract no matter what. And if the regime doesn’t provide that “civilization” or safety on its end of the “contract”? Well, then you’ll probably be told you’re just not paying enough in taxes. The idea that it is possible to betray or commit treason against so fraudulent a contract is an absurdity.
The great American libertarian Lysander Spooner noticed this in the mid nineteenth century. As shown in his 1867 essay “No Treason,” Americans are not morally bound by the US Constitution or its agents. The relationship between the average American and the US government is not a contractual one. At best, the Constitution was only ever a contract between the those who ratified it and the regime. Those people are now all dead.
For Spooner, unless a person gives explicit consent and approval of the Constitution and its notions of treason (among other notions) then a person cannot be said to be any sort of traitor:
Clearly this individual consent is indispensable to the idea of treason; for if a man has never consented or agreed to support a government, he breaks no faith in refusing to support it. And if he makes war upon it, he does so as an open enemy, and not as a traitor that is, as a betrayer, or treacherous friend.
The Regime and Its Agents Are Not Special
A key premise underlying the concepts of treason and sedition is the notion that government employees and government property are somehow very special. Crimes against government police, government soldiers, bureaucrats, and government property are considered to be special crimes worthy of longer sentences. That is, laws like treason and sedition are similar to so-called hate-crime laws in which defendants are subject to enhanced penalties because of who the victim is.
Opponents of hate-crime laws have long pointed out that crimes ought to be judged on the nature of the crime, and not on whether or not a person is a member of some arbitrarily protected class. They are correct. Unfortunately, these critics fail to notice that the same premise is employed in cases of treason and sedition: these crimes are treated more harshly in law because the victims are members of a special protected class.
Moreover, as opponents of hate-crime laws have pointed out, it is already illegal to murder people and steal property. Thus, if a so-called traitor or insurrectionist trespasses on government property, vandalizes that property, or assaults government employees, these acts are all already illegal. It’s already illegal to blow up buildings with people inside. It’s already illegal to murder people, whether or not they are wearing a special government uniform.
Thus, laws like treason and sedition exist primarily to spend a message: the message that the regime’s people and the regime’s property are more valuable than the people and property of the productive private sector.
What Was Not Treason Yesterday Is Treason Today
In a free society, the legal nature of crime does not change from one day to the next simply because the rulers change.
In the case of treason and sedition, however, has been happening in the United States from the very beginning. After open hostilities began between the American colonies and the British Empire in April 1775, many American secessionists had been engaging in countless acts that were clearly defined as treason and sedition according to British law.
This didn’t stop the Americans from turning around and declaring all their own domestic opponents traitors. For example, on June 5, 1776, the Continental Congress issued a proclamation stating:
That all persons, members of, or owing allegiance to any of the United Colonies, as before described, who shall levy war against any of the said colonies within the same, or be adherent to the king of Great Britain, or others the enemies of the said colonies, or any of them, within the same, giving to him or them aid and comfort, are guilty of treason against such colony.
Note that in this definition of treason, one need not even engage in overt acts against the regime. A traitor need only be an “adherent to the king of Great Britain.” In other words, the people who were not traitors in 1775 are transformed into traitors in 1776 based on little more than the fact that a different group of people declare themselves to be the rightful state monopolists. (The irony of a group of traitors declaring last year’s non-traitors to be this year’s new traitors will forever illustrate the moral incoherence of modern states.)
The Continental Congress wasn’t content to leave it at that, either. The June 5 declaration further recommended “to the legislatures of the several United Colonies, to pass laws for punishing, in such manner as to them shall seem fit, such persons before described, as shall be provably attainted of open deed, by people of their condition, of any of the treasons before described.”
Subsequently, all of the colonies except Georgia enacted treason statutes of their own.
The Americans, of course, are not alone in pioneering this rather shameful phenomenon. History provides many cases in which changes in regime turned loyal activists into traitors and seditionists in a matter of hours, all depending on which ruling regime happened to be in power. The waves of secession and political independence that came after the Second World War and the Cold War changed the definition of treason and loyalty for hundreds of millions of human beings, all based on where new arbitrary national borders were drawn.
Abolish Treason and Sedition In Law
The legal language of sedition and treason remain important to regimes for their propagandistic power. When ruling regimes define treason in their legal documents, the regimes are establishing that they have attained the status of a state monopolist and assert that the regime will punish any challenges to that monopoly power more harshly than the regime will punish mere ordinary acts of trespass, theft, or violence. In the case of sedition, states establish they will punish even words that challenge the state’s monopoly. As historian Mark Cornwell puts it in his study of treason in the Austrian Empire, regimes” have used treason as a powerful moral instrument for managing allegiance.”
States know that treason and sedition laws are about much more than matters of law and order. They are essential components of enhancing state power.
To simply erase this language from the federal and state constitutions, however, is not sufficient. History has shown that governments regard legal silence as consent to an endless array of new and abusive laws. Rather, language similar to that of the First Amendment shows more promise: “Congress/the legislature shall make no law for the creation or punishment of treason or sedition …” And so on.
This of course, would also be insufficient as no written bill of rights or constitution is sufficient in itself to prevent despotism. Yet, such language would serve as a helpful reminder that treason and sedition are fundamentally concepts that exist to protect regimes, and not the people.
- About the author: Ryan McMaken (@ryanmcmaken) is executive editor at the Mises Institute. Send him your article submissions for the Mises Wire and Power and Market, but read article guidelines first. Ryan has a bachelor’s degree in economics and a master’s degree in public policy, finance, and international relations from the University of Colorado. He is the author of Breaking Away: The Case of Secession, Radical Decentralization, and Smaller Polities and Commie Cowboys: The Bourgeoisie and the Nation-State in the Western Genre. He was a housing economist for the State of Colorado.
- Source: This article was published by the Mises Institute