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Defining Treason - Proposing Procedures, Practices and Penalties for Specific Acts Against the Constitution

Defining Treason

Article III, Section 3 of the United States Constitution defines treason as "levying war against, or in adhering to their enemies, giving them aid and comfort." 1 While this definition traditionally focuses on acts committed during wartime, it is essential to recognize that undermining the constitutional order through an illegal seizure of power poses an equally grave threat to the nation's security and stability. The Framers of the Constitution, having recently won independence from Great Britain, understood the dangers of an overly broad definition of treason. They sought to prevent the government from using accusations of treason to suppress political dissent 2.

The Constitution and Presidential Term Limits

The Constitution, the supreme law of the land, provides a framework for the governance of the United States and establishes limitations on the power of the federal government. The 22nd Amendment to the Constitution explicitly limits a president to two terms in office. This amendment, ratified in 1951, arose from concerns about excessive executive power amplified by Franklin D. Roosevelt's four terms as president. However, it was also the culmination of long-standing debates over presidential term limits 3. The amendment reflects a deep-seated commitment to preventing the concentration of power in the hands of a single individual and ensuring the regularity of democratic elections.

The Presidential Transition Act of 1963

In addition to the 22nd Amendment, the Presidential Transition Act of 1963 plays a crucial role in ensuring a smooth and orderly transfer of power between presidential administrations. This law provides a framework for the transfer of power, facilitating cooperation between the outgoing and incoming presidents and their teams 4. The act recognizes the importance of a seamless transition for national security and the continuity of government operations.

Oaths of Office and Allegiance to the Constitution

In the United States, all government and office holders, including the President, swear an oath to "support and defend the Constitution of the United States against all enemies, foreign and domestic." 5 This oath underscores their primary allegiance to the Constitution and its principles, not to any individual, administration, or political party. Demanding oaths of personal loyalty, therefore, subverts this fundamental principle and undermines the rule of law. Any president who demands such oaths from government officials provides evidence of an attempt to place themselves above the Constitution and establish autocratic rule, which constitutes treason.

Historical Precedents for Presidential Overreach

History provides compelling evidence of the dangers associated with unchecked executive power. While no U.S. president has successfully established autocratic rule, several instances of presidential overreach highlight the need for vigilance and for strong safeguards against attempts to subvert the Constitution.

• Andrew Jackson: In the 1830s, President Jackson defied the Supreme Court's ruling against the forced relocation of Native Americans. He ignored the Court's decision in Worcester v. Georgia, which held that the Cherokee Nation was a sovereign entity and that Georgia law did not apply within its territory. This act of defiance demonstrated a disregard for the rule of law and the principle of judicial review 6.
• Abraham Lincoln: During the Civil War, President Lincoln suspended habeas corpus without clear constitutional authority. He argued that this extraordinary measure was necessary to suppress Confederate sympathizers and maintain order during the crisis. However, his actions raised concerns about executive power exceeding its constitutional limits, even during times of national emergency 6.
• Franklin D. Roosevelt: President Roosevelt ordered the internment of Japanese Americans during World War II, a violation of their constitutional rights that was ultimately upheld by the Supreme Court in Korematsu v. United States. This decision remains controversial, with many legal scholars arguing that it was a grave error that sanctioned racial discrimination and undermined fundamental freedoms 6.
• Richard Nixon: President Nixon's involvement in the Watergate scandal exposed a pattern of abuses of power, including political espionage, obstruction of justice, and attempts to cover up illegal activities. These actions led to his resignation and a national reckoning with the dangers of presidential misconduct 6.

Arguments for Expanding the Definition of Treason

Expanding the definition of treason to include attempts to subvert presidential term limits is crucial for several reasons:

• Protecting the Constitution: The Constitution is the supreme law of the land, and any attempt to disregard its provisions, particularly those related to the transfer of power, or intentional trespass on any of the three co-equal branches of government 12, strikes at the heart of American democracy. By explicitly prohibiting such actions and classifying them as treason, the nation reaffirms its commitment to upholding the Constitution and its principles.
• Deterring Future Abuses: By explicitly criminalizing such actions, Congress sends a powerful message that any attempt to seize power illegally will be met with severe consequences. This serves as a deterrent against future presidents who might consider similar actions, reinforcing the importance of respecting the constitutional order.
• Upholding the Rule of Law: A core principle of democracy is that no one is above the law, including the president. Holding presidents accountable for their actions reinforces this principle and strengthens the rule of law. By applying the law equally to all citizens, regardless of their position, the nation demonstrates its commitment to justice and equality before the law.
• Safeguarding National Security: A peaceful and orderly transfer of power is essential for national stability and security. Disrupting this process can lead to chaos and instability, potentially jeopardizing the nation's interests both domestically and internationally. By ensuring a smooth transition of power, the nation protects itself from internal strife and external threats.

However, it is crucial to acknowledge the tension between safeguarding democracy and preventing the misuse of treason accusations. While expanding the definition of treason could deter attempts to subvert democracy, it also risks being misused against political opponents, potentially chilling legitimate dissent and undermining freedom of expression 2. Striking a balance between these competing concerns is essential to ensure that the law protects democracy without becoming a tool of oppression.

Existing Safeguards and the Impeachment Process

The Constitution already provides a mechanism for removing a president from office for misconduct: the impeachment process. "A President can be removed from office if the House of Representatives approves articles of impeachment charging him with 'Treason, Bribery, or other high Crimes and Misdemeanors,' and if two-thirds of the Senate votes to convict." 7 This process serves as a "safety valve" in the Constitution, allowing for the removal of a president who abuses their power or violates their oath of office.

Addressing Potential Concerns

While expanding the definition of treason is necessary to protect American democracy, it is essential to address potential concerns about its application. One concern is the historical misuse of treason accusations to suppress political dissent 2. Throughout history, governments have used treason charges to silence critics and consolidate power. To prevent this abuse, the law must be carefully crafted to avoid criminalizing legitimate political opposition.

Another concern is the potential for overbreadth. The law should precisely define what constitutes an attempt to subvert presidential term limits, focusing on concrete actions such as refusing to leave office after losing an election or actively seeking to dismantle democratic institutions. Vague or overly broad language could be used to target individuals who engage in lawful political activities, such as protesting or criticizing the government.

Furthermore, it is crucial to ensure that any individual accused of this offense is afforded all due process rights, including a fair trial and the right to legal representation. The burden of proof for conviction should be high, requiring clear and convincing evidence of a deliberate intent to overthrow the constitutional order.

Potential Consequences of Expanding Treason

Expanding the definition of treason could have significant consequences, both positive and negative 8. Potential benefits include:

• Reinforcing societal identity and unity: By holding individuals accountable for betraying the nation's fundamental principles, treason prosecutions can reaffirm the importance of civic duty and loyalty to the constitutional order.
• Deterring future treasons: The threat of severe punishment can discourage individuals from engaging in treasonous activities, protecting the nation from future attempts to subvert democracy.
• Providing retribution against the traitor: Treason is a grave offense that warrants punishment. Holding traitors accountable for their actions serves as a form of retribution and affirms the seriousness of their betrayal.
• Clarifying the procedural system under which terrorism should be addressed: Expanding the definition of treason could provide a clear legal framework for prosecuting individuals who engage in terrorism aimed at overthrowing the government.

However, there are also potential dangers associated with treason prosecutions:

• Unduly aggrandizing the threat from terrorism: Focusing on treason could exaggerate the threat posed by terrorism and lead to excessive security measures that infringe on civil liberties.
• Signaling weakness of the government that chooses to prosecute treason: Prosecuting treason could be interpreted as a sign of weakness or insecurity on the part of the government, potentially emboldening those who seek to undermine democracy.
• Biasing the criminal case against the defendant: The stigma associated with treason could make it difficult for defendants to receive a fair trial, as jurors may be more likely to convict based on emotion rather than evidence.
• Posing a difficult question about whether treason necessarily deserves the death penalty: The death penalty is a controversial punishment, and its application in treason cases raises complex moral and legal questions.

International Examples

Many democratic countries have constitutional provisions or laws that address attempts to subvert presidential term limits or undermine the democratic order. These examples demonstrate that democracies around the world recognize the need to protect against such threats.

• Algeria: In Algeria, treason is defined to include "attempts to change the regime." This provision reflects a recognition that subverting the constitutional order is a serious offense that threatens the stability of the nation 9.
• Germany: The German constitution prohibits any amendment that abolishes the democratic order. This provision safeguards the fundamental principles of democracy and prevents any attempt to establish an authoritarian regime 10.
• Several presidential and semi-presidential systems: Constitutions in these systems often set limits on presidential re-election, either through an absolute ban, a maximum number of terms, or a maximum number of consecutive terms 10.

Synthesis

The peaceful transfer of power is not just a tradition—it is the foundation of American democracy. Attempts to subvert presidential term limits or unlawfully undermine the Constitution are not merely political transgressions; they constitute a direct assault on the nation’s constitutional order. By expanding the definition of treason to encompass these actions, Congress reinforces the gravity of violating the oath to support and defend the Constitution 11.

This proposal is not about political retribution; it is about ensuring that no individual, regardless of office or influence, can place themselves above the law. The crimes addressed are specific, the penalties clear, and the application universal. Strengthening these legal guardrails is not a partisan act but a necessary step in preserving the democratic principles that define the United States.

By acting decisively, Congress can reaffirm the nation’s commitment to the rule of law, deter future abuses of power, and ensure that the United States remains a beacon of democracy for generations to come.

Works Cited

1. Treason Under the Constitution - FindLaw, accessed February 10, 2025, https://constitution.findlaw.com/article3/annotation24.html
2. Interpretation: Treason Clause - The National Constitution Center, accessed February 10, 2025, https://constitutioncenter.org/the-constitution/interpretations/does-the-treason-clause-still-matter
3. Twenty-second Amendment to the United States Constitution - Wikipedia, accessed February 10, 2025, https://en.wikipedia.org/wiki/Twenty-second_Amendment_to_the_United_States_Constitution
4. Constitutional Amendments – Amendment 22 – “Term Limits for the Presidency”, accessed February 10, 2025, https://www.reaganlibrary.gov/constitutional-amendments-amendment-22-term-limits-presidency
5. About the Senate & the U.S. Constitution | Oath of Office, accessed February 10, 2025, https://www.senate.gov/about/origins-foundations/senate-and-constitution/oath-of-office.htm
6. Illegal Actions, Missing Consequences | Cato Institute, accessed February 10, 2025, https://www.cato.org/commentary/illegal-actions-missing-consequences
7. CONSTITUTIONAL GROUNDS FOR PRESIDENTIAL IMPEACHMENT - GovInfo, accessed February 10, 2025, https://www.govinfo.gov/content/pkg/CPRT-116HPRT38513/html/CPRT-116HPRT38513.htm
8. Treason in the Age of Terrorism: An Explanation and Evaluation of... - UVA Law, accessed February 10, 2025, https://www.law.virginia.edu/scholarship/publication/kristen-eichensehr/931881
9. Treason - Wikipedia, accessed February 10, 2025, https://en.wikipedia.org/wiki/Treason
10. REPORT ON TERM-LIMITS PART I - PRESIDENTS Adopted by the Venice Commission at its 114, accessed February 10, 2025, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2018)010-e
11. 18 USC Ch. 115: TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES - United States Code, accessed February 10, 2025, https://uscode.house.gov/view.xhtml?path=/prelim@title18/part1/chapter115&edition=prelim
12. Separation of Powers in Action - U.S. v. Alvarez - U.S. Courts, accessed February 10, 2025, https://www.uscourts.gov/about-federal-courts/educational-resources/educational-activities/first-amendment-activities/us-v-alvarez/separation-powers-action-us-v-alvarez

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