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UC Law Constitutional Quarterly

Abstract

This Article asserts that treason talk is a form of constitutional discourse. Further, the Article explains that although treason remains a crime worth taking seriously in American criminal and constitutional law, colloquial invocations of treason have the potential to undermine treason’s seriousness and erode its constitutional and historical foundations, as well as diminish an appreciation of its limits. That is particularly true when treason is invoked by a sitting president, whose unique role in constitutional government—and potential to influence criminal prosecutions— requires special caution with respect to public rhetoric about treason. This Article then cites two specific and complicated areas of treason law that are often overlooked in today’s public commentary on treason: (1) whether a person owing allegiance to America has aided an “enemy” of the United States, such that giving aid and comfort to them would be treasonous; and (2) whether a person owing allegiance acted with an intent to betray the United States. The complicated nature of these two issues reinforces the need for meaningful, but more prudent and constitutionally-focused, public conversations about treason. Ultimately, this Article contends that a more responsible public discourse about treason may be helpful in framing and resolving important questions of constitutional meaning, to appreciate the limits of American treason, and to reflect on whether and how we should revive punishment of national disloyalty.

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