Thursday, February 13, 2014

Reviving The Constitution: The Treason Clause

Yes, I've embarked on yet another series of posts. (The colon in the title gave it away, didn't it?) But perhaps you'll find this one more interesting than usual, as it bears directly on the infrastructure of American governance. There are far too many persons who don't know what the Constitution says, or who lack the precision of language to make sense of it, Thus, a careful explication of the document's text is in order.

We'll start with the treason clause, which recent events should have brought into high prominence:

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. [Constitution of the United States, Article III, Section 3, paragraph 1]

Certain persons, most notably Edward Snowden about whom so much has been said and written, are being labeled traitors -- i.e., persons who have committed treason -- for doing things that don't fit the above definition. If that seems unclear, ponder the following:

  • War is either a Congressionally declared state, or an overt condition of violence against the nation;
  • A nation's enemies are other nations that are at war with it;
  • "Aid and Comfort" have been traditionally understood as assistance rendered to a nation's war efforts.

[A quick aside: Any foaming-at-the-mouth types who plan to go apoplectic at the above, and rant in my comments section about how "Snowden is a traitor" and "deserves to be hanged" might as well save your keystrokes. My comments section is for people who can read and understand plain English and ordinary logic, not for spittle-flecked morons who believe whatever the Omnipotent State tells them to believe.]

That constitutes a misuse of one of the most ominous words in our lexicon. This is especially ironic when one realizes that there are persons in high office who have deliberately and willfully betrayed their oaths of office, usurping powers never granted them and rejecting responsibilities specific to those offices. Inasmuch as the United States is defined by its Constitution and would not exist without it, that "constitutes" a closer approach to treason than any other offense that doesn't involve high-velocity lead:

     “Well,” Sumner said, “as the presidency isn’t a legislative position and has no lawmaking power, it would be inappropriate for me to have a legislative agenda. As regards appointments, I’ll choose men that feel the same way about the Constitution as I do.”
     “Which is?” Weatherly leaned a little farther toward him, a hand extended as if to present a microphone to him. Sumner remained steady.
     “That it means exactly what it says. That the powers of the three branches of the federal government are stated explicitly in its text. That all powers not granted by it are reserved to the states or the people, as stated by the Tenth Amendment. That for a federal official to violate its terms amounts to treason, regardless of his motives.”
    A faint gasp circled the packed studio. The overwhelmingly female audience was unused to hearing such strong and definite talk. Democratic incumbent Walter Coleman and Republican challenger Charles Lowry had pandered to them shamelessly, emphasizing their concern for “women’s issues.” Weatherly had gone home from those interviews under a load of weary, cynical contempt.
     “Treason’s a very strong word, Mr. Sumner.”
    Sumner nodded. “What term applies better to the deliberate violation of the joint contract of the American people, after having sworn an oath to protect it?”
     “Would you say there are...traitors in office now?”
    The studio went instantly silent.
    Without the flicker of an eyelash, Stephen Sumner said, “I would.”

[From Shadow Of A Sword]

The Founders defined treason specifically in the Constitution because of its history of misuse. Monarchs who sought to destroy a political opponent or to seize his lands were quick to accuse such opponents of treason, as it was considered grounds for execution, forfeiture of all goods, and "corruption of blood:" the permanent denial of all rights and privileges to any member of his family. The Founders were determined to prevent that, as well:

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. [Constitution of the United States, Article III, Section 3, paragraph 2]

Star Chamber proceedings often included treason charges among the ones not disclosed to an accused until he stood in pillory before the court, in secret session.

Inasmuch as the Constitution is "the supreme Law of the Land," Congress cannot change the definition of treason, nor add to the list of offenses that constitute treason, by legislation. Neither can Congress change the definition of "war," unless we're ready to accept that words mean only what Congress says they mean.

Edward Snowden might well be guilty of violations of the National Security Act of 1947, though there are many problems with the Act that should have caused it to be struck down long ago. In any event, that has yet to be established, but even if it should be, it cannot constitute treason. The use of the term to defame him is merely an attempt to delegitimize his revelations about the extent of federal invasions of the privacy of American citizens.

What the Obamunists have done, with no small degree of cooperation from persons who really ought to know better, is to redefine treason as action against the interests of the ruling regime. This is a return to the use of the word as rapacious kings used it, and a clear violation of the Constitution's terms. Though the objective isn't to seize anyone's lands, it is no less noxious to Americans' rights. Whistleblowers who disclose actions that violate the Constitution, depicting the arrogance of the Omnipotent State in full measure, deserve legal protection, not defamatory accusations or efforts to hunt them down like rabid jackals.

Isabel Paterson, in The God Of The Machine, her landmark study of the American Constitutional order, deemed the treason clause one of the most important of the Constitution's protections of individual rights, particularly our property rights. Americans should be vigilant in calling to account those who abuse the word "treason," and in insisting on the Constitution's provisions, in this regard as in any other.


RT Rider said...

There might not be bills of attainder as reprisals for those persons dubiously deemed to be enemies of the state, but, it seems, they have other extrajudicial means that are more permanent. The king - sorry - president has made it so.

Historian said...

I'll be most interested in your take on the present status and future viability of the Constitution, Mr. Poretto. How do we deal with Lysander Spooner's prescient criticisms?

Francis W. Porretto said...

Spooner's attack on the validity of the Constitution took aim at its contractarian nature: the notion that it constitutes a binding contract, voluntarily entered into, between individuals and the federal government. Given that there were undoubtedly Americans who would not have consented to its terms had they been personally consulted, if we grant Spooner's premise -- i.e., that one who has not personally consented to a contract cannot morally be bound by it -- then he wins the argument. But the Founders would have countered with a "the best we can" argument: that the selection of representatives in whose actions the will of their constituents would be expressed was the best they could do. Unanimity might not be achieved that way, but at least there could be supermajority acceptance.

The Founders' position rests on the assumption (which I question and which Spooner rejected utterly) that there must be government. Once again, if you accept the premise, you can probably be reasoned around to the Founders' conclusion. Even the Friedmanite notion of "essential consensus" can be attacked as embodying a questionable presumption: that a representative can morally speak even for those who voted against him, or who refrained from voting. But the premise that government is necessary, even if it's a "necessary evil," is so widely held that you could probably fit all the dissenters alive in America today into the ballroom at a large hotel.

Frankly, I'd like to see that. I could make a lot of friends there.