“Treason!” Few other words in the English language evoke such fierce reproach. Wielded in practical politics, it grows more threatening as crisis looms. In the most intense political contests, throughout history and today, cries and warnings of “traitor!” abound.
Yet this fundamental crime has provoked relatively little reflection. You will not find it mentioned in ethical manuals or examinations of conscience. Legal educators and public prosecutors neglect it. Political philosophers have made tyranny a staple of theorizing but have hardly handled treason at all.
Treason’s invocation in today’s political culture, then, is cause to reflect on its persistence—the ironies it reveals in a modern society and the questions it raises about loyalty in the age of liberalism. The very notion of treason calls forth pre-modern personal fealty, a sense of dignity, status, and the sacred. This makes the word and its associations seem more naturally placed amid the bonds of a medieval feudalist society than in the bureaucratized safety of the modern state.
As a vital rhetorical term, the dramatic force of “treason” fits better the literary modes of history, tragedy, and epic poetry than academic or legal theory. What does this word do for us? From where does it derive its power? If it does not spring from the thumotic heart of honor and shame, perhaps from the turbulence of blind passion? Whatever its source, none dare call it “reason.”
Though “reason” and “treason” rhyme, they have no etymological link. “Treason,” “traitor,” and “treachery” do share roots with a nearly opposite word which invokes loyalty, identity, and common cause. From Latin (tradere) via Old French (traison), “treason” branches off of the same trunk as “tradition”: the latter refers to that which is handed down, a gift inherited from friends, and the former to that which is handed over, taken and betrayed to enemies.
This is the first irony of treason: its linguistic connection to the intergenerational sharing essential to any community. The etymological irony is reflected not only in English and the Romantic tongues but in the Greek word for treason, prodosia. It derives from the verb prodidomi and, like tradere, also implies giving, handing over, or transmitting, with either negative (prodosia) or positive connotations of tradition (paradosis). As a political crime in ancient Athens, prodosia involved giving something of one’s own party to an opposing party. More than mere disloyalty, prodosia implied breaking a bond of duty; typically carried out by means both hidden (in the preparation) and open (in the forceful execution), it suggested both conspiracy and violence.
It is this existential weight of a handing-over that accounts for the word’s rhetorical power—and the risk of its abuse. The French scholar Anne Queyrel Bottineau described fifth-century Athenian prodosia in terms that apply to modern treason: “Judgment of prodosia may well pass from the field of reason to that of passion, with the corollary shame, haste, and blindness, but also bigotry and bias.” The concept of treason is used by a community to judge others—and to define itself in relation to others. A community clarifies its sense of self through deploying the charge of treason, so “the phenomenon of prodosia is incontestably linked to periods of crisis of the community, and therefore to the consciousness that the community has of itself.”
Treason breaks a polity’s bonds of loyalty and duty. It is a dissolving act, an acid on the body politic. In Athens, as today, anxieties about treason—and shrill charges of treason—rise whenever a society is riven by deep political conflicts or is under threat from a foreign power. Treason threatens community, and communities use charges of treason to define and assert themselves as communities.
Accordingly, accusations of treason push in two directions, toward an articulated legal process to protect the community and toward a more primal, ineffable expression of what offends the community and shames the traitor. Communities must litigate treason, but they are motivated to do so because of their fundamental civil pieties. Plato, in the Laws, classes treason along with sacrilege and subversion as uniquely high crimes against the city. As grave acts of impiety, they require special methods of trial and punishment. Plato’s treatment exemplifies the tension identified by Queyrel Bottineau, that even as “the narrow technical specification of prodosia [in law] would maintain the accusation in a strict and controllable field, its moral and emotional character . . . knows no limit.” Hence the charge of treason, essential to any community, is also subject to abuse.
Fighting treason, like maintaining a living tradition, requires loyal and dutiful people to identify with a particular community.
Treason and tradition share more than an etymological sense. To avoid abuse, both call for definition and articulation. But because judgments about both require judgment about the nature of a community and its members, both resist reduction to laws or rules. Human beings are not conceptual systems. Fighting treason, like maintaining a living tradition, requires loyal and dutiful people to identify with a particular community. This traditional or political community may express itself in rules for canonical rites or legal trials, but if it is reduced to such rules, it has already been lost. The threat of treason, like the blessing of tradition, deserves legal attention but is difficult to reduce to a rule. The substantial social good of community, sustained or betrayed, statutes can recognize but not comprehend.
So if the first irony of treason is etymological, the second is legal. Treason is, as Orestes Brownson observed, “a temporal matter, and within the jurisdiction of the temporal authority.” As such, treason needs definition in law, yet it poses a special challenge to the law because treason describes a crime that precedes law. Treason is a moral betrayal not of law but of the basis of law in concrete political community.
How can such a crime be defined and handled in law? Legal historians have long recognized the messiness inherent in attempts to clarify which kinds of lawbreaking constitute severing the bonds of the lawmaking community itself. The English legal historian Frederic W. Maitland famously described treason as “a crime with a vague circumference, and more than one centre.” What is the key locus of the offense (which at times included counterfeiting and sleeping with the king’s wife)? Historically, treason has begun with paradigms such as betrayal of friend for enemy and breaking of fealty between vassal and lord. But over time the intention of treason has come to matter as much, or more, than the deed itself—hence the emphasis on plotting.
Eventually the notion of treason would narrow to a crime against the state, once embodied in the king and finally considered as a corporate, and somewhat abstract, “sovereign” entity apart from a king. The messiness Maitland identified had much to do with changing historical contingencies—in scale, cultural forms, and political theologies—that necessarily prompted the evolution of treason as an identifiable and prosecutable crime. But the juridical irony of treason is deeper than that. As not ordinary lawbreaking but a threat against the conditions of legitimate lawmaking, treason is a special kind of crime against the natural law, out of place in a normal criminal code.
One might think, therefore, that it would be better addressed in a constitution, as part of the structure of the state. The United States Constitution certainly tries, but it succeeds mainly in illustrating concerns about the charge itself. Treason—the only crime specifically addressed in the country’s founding document—gets three sentences at the end of Article III. Each helps to limit treason’s scope, first narrowing what can count as treason: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” The second sentence sets discouragingly high standards for prosecution and for evidence: “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.” The third limits punishment, explicitly ruling out consequences for the traitor’s heirs: “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.” (Emphasis added throughout this paragraph.)
In limiting treason and its prosecution, the U.S. Constitution anticipates the danger not only of treason but of the abuse of the charge of treason. Cognizant of what Maitland identified as treason’s “vague circumference” and several “centres,” the Framers of the Constitution were more concerned with protecting the innocent from aggressive application of treason charges than with defining treason according to intuitions of national betrayal or disloyalty. In the words of the 1945 Supreme Court decision Cramer v. United States, “The basic law of treason in this country was framed by men who . . . were taught by experience and by history to fear abuse of the treason charge almost as much as they feared treason itself.”
But a legal definition of treason cannot limit political accusations of treason, and the Constitution does not and cannot prevent prosecution and punishment of political crimes under some other title. Crimes of disloyalty, betrayal, or anti-state action don’t have to be called treason to be prosecuted, they can have lower standards of evidence, and they can incur more severe penalties. So, except in some trivial semantic way, the Constitution can’t provide protection from the abuse of charges of treason.
Alexis de Tocqueville wasn’t fooled by the patina of textual clarity. “Nothing is more frightening than the vagueness of American laws, when they define political crimes strictly speaking,” he wrote. He grasped that the Constitution provides no pragmatic ground for limiting abuse because treason can always be prosecuted under another name, such as “collusion” or “seditious conspiracy” or “insurrection.” A formal definition of the charge of treason can’t prevent the state from prosecuting crimes of disloyalty—and it can’t protect the innocent from accusations of committing such crimes.
The Constitution’s treatment of treason allows English precedent to serve a historical function for the Framers much like the one the Salem witch trials serve for modern liberal legal theorists: as an object lesson in past horrors that should be forestalled in the future. In principle, this effort reinforces commitment to liberal political ideals, but by now there is abundant evidence that such ideals provide no practical protection from mass hysteria or overreaching prosecution. As Tocqueville recognized, the attempt to limit the scope of judicial punishment for disloyalty risked displacing its punishment to something harder to control: tyranny of the majority manifest in political tribunals, which means impeachment by legislators rather than trial by judges. This led him to formulate a testable hypothesis: “When the American republics begin to degenerate it will be easy to verify the truth of this observation, by remarking whether the number of political impeachments increases.”
The results of the experiment are in. Under American law treason has been rarely charged (fewer than thirty times) and has rarely resulted in conviction (about half of the charges). But political rhetoric has separated from legal discipline. Whatever the text of the Constitution says, citizens will have their own sense of what counts to them as betrayal, and they will try to use available political and legal tools to do something about it.
And whatever the law says treason is, human beings are inclined to treat their political opponents as traitors, not in order to prosecute formally but to justify extreme political measures, including violence. During the Civil War, Lysander Spooner recognized this when he criticized the North’s temptation to justify its purpose in war as fighting for the Union rather than fighting to end slavery: “The principle, on which the war was waged by the North, was simply this: That men may rightfully be compelled to submit to, and support, a government that they do not want; and that resistance, on their part, makes them traitors and criminals.” But for Spooner, a natural-law anarchist and abolitionist, the legitimacy of government depended on consent. Thus, once a man has withdrawn his consent from a government, “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.” Spooner’s challenge, especially for those who live under a liberal regime resting on consent of the governed, is to consider how any open opposition to the state could be considered treason.
Treason itself is a challenge to liberalism because treason is not about rules, consent, and individual rights but about loyalty to a community. The gravamen of treason is not in the breaking of a legal rule but in the breaking of the kind of ties that liberalism does not comprehend but would die without: trust, belonging, a vision of a common destiny. The idea of treason must transcend positive law because the wrong arises from the bonds of the community, not its commands. As the passions aroused by adultery do not await a legal definition of marriage, the charge of treason does not pause at liberalism’s thin notions of legal connection. For treason and adultery to be felt, it is not a requirement that the relevant parties recognize and obey a common enforcement power, only that they hold themselves and each other to a standard of duty and honor rooted in mutual belonging.
Law does not make or measure loyalty, but the power behind law ultimately depends on that loyalty. Loyalty to the author of law is a prerequisite of the efficacy of law; treason, as the betrayal of that loyalty, thus eludes the law. Less a matter of breaking rules and violating rights, treason is best understood as a failure of duty and a betrayal of status. The wrongness of treason is thus a rebuke to legal positivism, and, as Spooner shows, the juridical irony of treason is magnified by modern liberal theory, in which law—and the state’s very legitimacy—is traced to consent. Consent might explain some obligations, but not all of them, and certainly not the obligation to value consent. Treason had a more comfortable home in classical, medieval, and monarchical cultures, which assumed that life is naturally imbued with unchosen roles and duties.
This examination of the etymological and juridical ironies of treason has shown that, even as the law tries to define treason and as communities partly define themselves through charges of treason, treason can’t be understood without moral concepts that extend beyond legal and liberal theory. And it is here, in the moral dimension, that the third irony of treason can be found. Human beings, in the natural course of events, find themselves with rival loyalties. This is a clear challenge to the notion of treason, especially since loyalty to a political body is rarely the most important of a person’s commitments. “The relationship between a man and a fatherland is always disturbed by conflict if either man or fatherland is highly developed,” Rebecca West wrote in The Meaning of Treason. “All men should have a drop or two of treason in their veins, if the nations are not to go soft like so many sleepy pears.”
This is not only a modern phenomenon. The ancient polis may appear to be a more natural object of loyalty than a modern state, but an ancient citizen had to contend even more with rival loyalties than the modern individual does. The Platonic or Aristotelian ideal of citizenship was quite progressive compared to the experience of the everyday Athenian as described by the scholar Anton-Hermann Chroust: “Long before he became a citizen of Athens, a member of the city, as a rule he had been a member of some kinship organization . . . religious confraternities or professional associations.”
Especially important were what Chroust called “friendship groups,” clubs or fellowships in which people “were held together by the bond of congeniality, identity of social interest, similarity of political ambition, and sometimes by similarity of age.” This bond of friendship was a bond “often prized above the more general citizenship.” It was in precisely this spirit that E. M. Forster wrote that “if I had to choose between betraying my country and betraying my friend, I hope I should have the guts to betray my country.”
Chroust corrects a common impression of the classical polis as organically unified. In fact, Athenian politics was riven by partisanship and factionalism because it was saturated with pre-political friendships. Even the famed “democratic” interests in Athens were the interest of only one part of the polis: to be undemocratic was not to betray Athens, and to pursue the unity of Athens was not to hand all over to the party of “democrats.” As Chroust puts it, “Few, indeed, are those men in ancient Greece whose political conduct is consistent with our notion of patriotism and patriotic devotion to one’s country; and few men, if in the position to do so, would have hesitated to collaborate with a foreign power, whenever such an action promised political domination over the city and utter defeat of the political opponent.”
In Chroust’s account, the ancient polis seems to have some similarity to the modern liberal state: “primarily a place of opportunity, but not necessarily an object of patriotic devotion.” It is the voice of totalitarianism that claims that loyalty to the state is the greatest loyalty, for which no greater loyalty can be conceived. Treason can thus be an unequivocal crime only in a totalitarian society, while in all others there must be the admission that something higher than the state might be worth sacrificing for. When Dante—writing in exile, no less—puts treachery in the lowest part of Hell, he still recognizes a gradation: political treason is not as bad as betraying a person, human or divine, who truly deserves loyalty.
But if the ancient moral irony of treason is the fact of plural, ordered, and sometimes competing loyalties, the modern moral irony of treason is its rhetorical survival in the eclipse of loyalty. Liberalism, as a theory either of political limits or of human nature, ultimately denies that the individual has any loyalty beyond the individual’s “loyalty” to self, which is not truly loyalty in the traditional sense of the word. Can liberals— right-wing or left-wing—rightly believe in treason? The modern state clearly has an interest in enforcing obedience. But can a liberal theory of the state account for that as a duty to enforce loyalty? Duty from what? Loyalty to what?
Yes, all things being equal, in a healthy state, the traitor is bad. But perhaps in some cases the state may be betrayed for the sake of “the people” or some part of them. Alcibiades might be the exemplar. Thucydides reported that he described defecting to Sparta as a form of patriotism to Athens: “Nor do I consider myself to be attacking what I still consider to be my city, but rather to be recovering that city which is mine no more. The true patriot is not he who, when he has unjustly lost his country, abstains from attacking it, but he who, because of his longing for it, tries by all means to regain it.”
As the political scientist Morton Grodzins noted, “Democracies must tolerate a thin line between patriotism and treason.” He coined a term for the figure of the disloyal patriot, loyal to the country and its people, but not to the state: the “traitriot.” This is a familiar phenomenon, especially in America, where one can think that loyalty to democracy or to a natural creed—to an ideal or a principle or a proposition—is more important than obedience to a particular people, a law, or an administrative regime. Rightly or wrongly, disloyalty to America in concrete particulars has often been motivated and justified by a strong sense of loyalty to what America is supposed to be.
For Grodzins, as for Rebecca West, traitriotism is part of the human condition: “No person is a complete patriot or a complete traitor. All are traitriots. Just as all men have a little neurosis in them, so it is that all have a trace of the traitor.” And this indeed is why one should be wary of promiscuous charges of treason. There would be something wrong with someone who didn’t have loyalty higher than a political regime.
The moral irony of treason has had odd historical consequences, as captured in the famous couplet of Sir John Harington: “Treason doth never prosper. What is the reason? / Why if it prosper, none dare call it treason.”
Treason is only ever unsuccessful; if an act of “treason” succeeds, it is a revolution, a secession, a new founding. Alcibiades could perhaps be remembered as a traitor, and he was charged with treason—but he always managed to be on the winning side, and despite or rather because of his oft-exchanged loyalties, he is remembered as ambitious and brilliantly conniving rather than criminal. By nature, and often by law, treason makes one dead to the betrayed community, but Alcibiades fulfilled his prophetic curse on Athens, as reported by Plutarch: “I will make them feel that I am still alive!”
Treason is real, and tragic, and in a sense impossible to describe because it is the breakdown of the community in which coherent description is possible. Perhaps we can learn something from the comparison with betrayal in marriage. As West observed, “As a divorce sharply recalls what a happy marriage should be, so the treachery of [historical traitors] recalled what a nation should be: a shelter where all talents are generously recognized, all forgivable oddities forgiven, all viciousness quietly frustrated, and those who lack talent honoured for equivalent contributions of graciousness.”
Charges of treason fly when the bonds of community weaken, when nations are no longer nurturing communities, and when even accusations of treason lose credibility. In a state, as in a marriage: by the time treachery is suspected or contemplated, or by the time the appearance of treachery is perceived, even when it is only in the mind of the perceiver, the bond constituted by trust, harmony, and loyalty is already gone.
Communal bonds, once broken, have their stories told by surviving and surrounding communities. Treason never prospers, and yet historically it has proven to be an inescapable reference point for social self-understanding, sounding like an alarm when a community is tested, and continuing to ring in the self-conception of new communities that emerge from past failures.
It remains to be seen whether treason can continue to serve such a purpose in contemporary politics. In modern liberal polities, there are increasingly urgent attempts to leverage the charge of treason. But these seem inconsistent with liberalism’s tendency to revere the individual above community and to deny the idea of a bond that should not be broken. Can a society speak coherently of severed loyalty and betrayal when it has already systematically separated itself from the gift of inherited community and preserved tradition?
Woven through this discussion of treason’s etymological, jurisprudential, and moral ironies has been another, distinctively contemporary, and possibly tragic fourth irony: the survival of charges of treason in the liberal age. A people that has abandoned tradition, natural law, and community-constituting friendship now grasps at treason. But this claim can only be effective in a society that is understood as a people who belong to each other and whose ruling power does not merely command and manage but knows and loves, and from whom the people receive a patrimony as gift and bond. Without that, how can there be an abuse of what has been inherited; how can there be fault in any handing-over? When all value is subject to the will of the individual, where no bond deserving loyalty prospers, there may be factions contending for recognition and power, but there is no community worthy of betrayal, and there is nothing left to call treason.
