We started yesterday’s post with the definition of treason as our point of departure. The definition says that treason is the crime of betraying one’s country, especially by attempting to kill the sovereign or overthrow the government. I’m curious why the word attempting appears near the beginning of the subordinate clause. It suggests that attempting to kill the sovereign or to overthrow the government amounts to betrayal. Successfully killing the sovereign or overthrowing the government might be something else.

Let’s investigate the legal history of treason. Formerly, the law distinguished between petty treason and high treason. Petty treason was the crime of murdering one’s master, whereas high treason was the crime of betraying one’s country. Using the same word, treason, to describe both crimes suggests that the one’s country – as represented by the state, or the government, or the sovereign – functions as one’s master. A subject commits high treason when he tries to kill or overthrow the highest master of all.

That’s exactly how Thomas Hobbes saw the state, or sovereign. The sovereign’s rule over all subjects had to be absolute to maintain order. Action to overthrow the government or kill the sovereign amounts to betrayal, as such an act would consign one’s fellow subjects to a war of all against all, where life is “nasty, brutish, and short.” If you commit an act that has that result, no wonder the law sees you as having committed a crime of betrayal.

John Locke overturns this entire picture. The sovereign is not a master, but a servant. Individuals are not subjects, but citizens who give instructions to the sovereign. Citizens expect these instructions to be carried out. If the sovereign does not respond to citizens’ instructions satisfactorily, citizens dismiss their servant. It is not an action to be taken lightly, yet Thomas Jefferson said it should happen every generation. Every cohort should define its own rules of democratic governance. Every cohort should exercise its own right of revolution.

Interestingly, our concept of treason survived the sea change in political thought as Americans founded a republic based on Locke’s principles of constitutional law. We still see treason as a betrayal of one’s country, to include any attempt to replace the government. We still see treason as a crime, but naturally, no citizen can commit a crime while exercising a right.

To explore the meaning of treason a little further, we should make two distinctions.

The first distinguishes between government’s overthrow and its replacement. Overthrow suggests blood and chaos. It suggests murder, disorder, and mayhem. Consider the Russian revolution, and the civil war that followed. The Bolsheviks murdered the czar and his family. The revolutionaries freely referred to their activities as directed toward overthrow of the state: we want to throw over established institutions in order to create new ones. The creative process first required destruction.

Replacement is a more Lockean concept. It suggests dismissal of the sovereign with some kind of plan about what will follow. What follows could involve confusion, disorder, and uncertainty, but it does not necessarily involve mayhem. The sooner you have mayhem, the sooner you have a process of change based on raw power, not constitutional processes of democratic evolution. Consitutional processes – however uncertain and disorderly they might be – result in a legitimate legal framework based on consent. A consitutional framework gives people security because they accept it.

Suppose the government exceeds its authority under the constitution. Suppose the government behaves corruptly, protects its own interests at citizens’ expense, abuses their rights and altogether fails in its constitutional mandate to promote the general welfare. Citizens would be justified in regarding such a government as illegitimate – one that deserves dismissal and replacement. Locke enumerates exactly these justifications when he explains why a free people must have a right of revolution. Would citizens who exercise their right of revolution under these circumstances be guilty of treason? Of course not. In fact, they would be guilty of a certain kind of betrayal if they did not replace their government.

That brings us to the second distinction, between government and country. Citizens’ obligations extend to each other, to other citizens who are their countrymen. Obedience to the law meets those obligations, because we intend the law to rule out behavior that harms fellow citizens. Citizens are not obligated to obey the government as such. Government consists of branches – people – who make laws, execute laws, and interpret laws, but government itself cannot command obedience as the law does. In fact, the government owes us obedience, not the other way around. When government ceases to obey the citizens who created it, that government is due for dismissal.

When your country is in trouble because the government has become corrupt, you do not betray your country when you insist on goverment’s replacement. You show loyalty to your country when you do that. If your country’s enemy shows up at the border, and you guide the enemy in its campaign to conquer your own land, that’s betrayal. That’s handing your fellow citizens over to an army that means to take away everyone’s freedom. No loyal citizen would ever turn his countrymen over to a conquering army.

To take another example that does not involve military force: if you sell fraudulent securities and cheat your fellow citizens of their money, then cheat them again by looting the public treasury, that’s betrayal. When government is complicit in fraud of this kind, it betrays its constitutional commission, and it betrays the citizens who trusted it to act on their behalf. It must be replaced. When citizens cooperate to do so, they show loyalty toward each other, and warranted skepticism of government’s motives.

Of course, no government places loyalty and betrayal on these foundations. People who hold official positions in government do not generally distinguish between governmental institutions and the country as a whole. They do not distinguish between government and its constitutional mandate to promote the general welfare. Because government exists to promote citizens’ welfare, public policy must promote that welfare, however imperfectly. Citizens who say government must be replaced are, ipso facto, threats. From government’s perspective, they are troublemakers who bear watching. The more effective they become, the more government regards them as traitors.

Let’s return to the interesting idea that attempted murder of the sovereign, or attempted overthrow of the government is treason. A successful murder or overthrow is called a coup d’etat: a strike against the state. The people who administer a successful blow will not charge themselves with treason! Moreover, citizens who observe such a blow are typically at a loss to do anything about it. That’s the point of a coup: assume control of the state apparatus – and the power that accompanies it – before another power center can act to resist you.

In a democratic republic, citizens would presumably react with anger and indignation to an illegitimate transfer of power. Even in a republic, however, the stunning murder of a sovereign in a coup d’etat can produce a placid reaction. Take the murder that occurred on November 22, 1963. The nation’s reaction mirrored Bobby Kennedy’s: grief, followed by a conviction that something was not right. People urged Bobby to make things right. He responded, “What good would it do? It won’t bring my brother back.” By 1968, he resolved to do something about these suspicions. He ran for president, to replace the man who took his brother’s office after the assassination. Then he too was murdered.

What a tragedy, we all said. What can we do? It’s the Kennedy curse. When a sense of national victimhood begins to steal in, pause for a moment and think. How superstitious can you get? Two brothers get murdered, and we call it a curse? Our politics begin to stink of assassinations, and we think it’s all an unfortunate coincidence? How unlucky we are to undergo such a trying period. These lone nuts rob us of our best leaders. How did we let our public discussion mislead us so? Anyone who watched Jack Ruby shoot Lee Oswald could see that something was fishy. Yet we conviced ourselves that we were unlucky. The stars aligned to make us unlucky, a people cursed. The Kennedys’ curse became our own.

The people who shot Jack Kennedy delivered a successful blow, yet they remain guilty of treason. The people who planned this public execution committed an unspeakable betrayal. They’ll not be charged with the crime, but we citizens still have an obligation to acknowledge it. A time is coming when the government will charge us with betrayal. It will sow division because division serves its own interests. It will attack people who oppose its authority as enemies of the state. It has done that already, many times. A government that feels threatened locks up its opponents and it does not let them out. If it cannot not lock them up, it kills them. That’s treason.

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