Mises Wire

There Is No Such Thing as Treason

“Treason” is quickly becoming a favorite word among Washington politicos and their media allies. One need not look hard to find countless examples. For example, a late-night talk show host called the January 6 Capitol riot the “treason finale” of the Trump era. A Washington Post columnist concludes “the founders” would have “denounced it as treason.” The mayor of New York says Trump is guilty of “treason” for his supposed role in the riot.

What is perhaps surprising about the use of the word this time around is that it’s being used by the Left against adversaries in the Right. Usually it’s the other way around. During the second half of the twentieth century, it was not particularly unusual to hear right-wing Cold Warriors denounce as traitors those who were allegedly too soft on their communist enemies. Conservative columnist Ann Coulter, among others, has long referred to left-wing adversaries as the “Treason Lobby.” It’s an old conservative trope, and I suspect that the irony of using the term against Trump-supporting conservatives is not lost on the leftists who employ it.1  We can see this tactic’s effectiveness in the fact so many Republican and conservative politicians have rushed to distance themselves from the riot on the grounds that it constitutes treason, or that it violated the state’s “sacred“ property. By the Right’s own criteria—which tends to stress reverence for government institutions and buildings—the riot was a violation.2  

The “Social Contract” and the Treason Myth

The truth, however, is that the use of the term—regardless of who is using it—has always been maudlin and founded on falsehoods. Terms like “treason” and “traitor” perpetuate the myth that Americans owe something to the regime, or that the regime’s coercive monopoly is somehow based on a free and voluntary agreement—an imaginary “social contract”—between the regime and those who live under it.

None of this is true. As shown by Lysander Spooner in his 1867 essay “No Treason,” Americans are not morally bound by the US Constitution or its agents. The relationship between the average American and the US government is not a contractual one. At best, the Constitution was only ever a contract between the those who ratified it and the regime. Those people are now all dead.

For Spooner, unless a person gives explicit consent and approval of the Constitution and its notions of treason (among other notions) then a person cannot be said to be any sort of traitor:

Clearly this individual consent is indispensable to the idea of treason; for if a man has never consented or agreed to support a government, he breaks no faith in refusing to support it. And 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.

Nor would resistance to a regime constitute treason even if the allegedly treasonous person had voluntarily given his or her consent to the regime in the past. Only states insist they have the right to demand that one party of a contract (i.e., the taxpayer or citizen) be subject to a perpetual and unbreakable legal obligation forevermore. In the more reasonable world of peaceful, and voluntary relations (i.e., morally legitimate nonstate relations) contracts are breakable, and consent is negotiable and voidable. Moreover, Spooner notes, the regime has long since voided whatever contractual obligations might have existed due to its widespread violations of natural rights. The social contract, if it ever existed, was abrogated by the regime’s failure to keep up its end of the bargain. 

Thus, under these conditions, it’s difficult to see how any person or group that refuses to comply with laws and edicts handed down by a “constitutional” government violates any principle of patriotism, loyalty, or obligations to the state. 

Why the State Has Special Hatred for “Traitors”

As one might expect, regimes take an especially dim view of “traitors.” This is largely because so-called traitors—whether through words or overt acts of violence—threaten the state’s monopoly powers. Murray Rothbard explains in “Anatomy of the State“:

What the State fears above all, of course, is any fundamental threat to its own power and its own existence. The death of a State can come about in two major ways: (a) through conquest by another State, or (b) through revolutionary overthrow by its own subjects—in short, by war or revolution.

When it comes to resisting these threats to the state’s powers, the state employs a huge double standard:  In the case of international war, the state openly encourages its own citizens to take up arms and engage in open warfare against potential rights violations inflicted by a foreign state. “Fight for your freedom,” we are told. But when it comes to rights violations committed by one’s “own” state, Rothbard notes, “no ‘defense’ is permitted.” 

Nor is it surprising, then, that states often pursue greater punishments against those who threaten the state than for those who threaten ordinary people:

We may test the hypothesis that the State is largely interested in protecting itself rather than its subjects by asking: which category of crimes does the State pursue and punish most intensely—those against private citizens or those against itself? The gravest crimes in the State’s lexicon are almost invariably not invasions of private person or property, but dangers to its own contentment, for example, treason, desertion of a soldier to the enemy, failure to register for the draft, subversion and subversive conspiracy, assassination of rulers and such economic crimes against the State as counterfeiting its money or evasion of its income tax. Or compare the degree of zeal devoted to pursuing the man who assaults a policeman, with the attention that the State pays to the assault of an ordinary citizen. 

So, we can conclude that the Capitol riot was not treason, and theoretically, at least, it was potentially an act of self-defense. Whether or not that is actually the case, however, is much less clear. As Spooner notes, those who take up arms against the regime under which they live are nonetheless engaging as “an open enemy,” and are engaging in violent action. Just because the Capitol riot was not treason does not necessarily make it prudent or moral, let alone legal.

Perhaps the most unfortunate part of the Capitol riot is that many appeared to not intend to commit any acts that might even be interpreted as treasonous. Many rioters appeared content to simply register their dissatisfaction with the election. They roamed the building like tourists and waved flags. Many of these people will nonetheless face the full savagery of federal prosecutors for what the “perpetrators” likely thought amounted to a minor trespass. On the other hand, some rioters attacked Capitol personnel. Some others vandalized the building. Some of these people are guilty of real crimes, such as those who apparently engaged in violent confrontations with Capitol police. Their crimes may amount to assault, vandalism, and trespassing. Some may even be guilty of attempted murder. But none are guilty of the made-up, imaginary “crime” that is treason.

  • 1“Treason” was also trotted out during the controversy over the removal of statues commemorating Confederate generals and politicians. Realizing that charges of racism were failing to excite much contrition among the opponents of the monuments’ removal, the Left instead turned to charges of “traitor,” as shown in headlines like “Trump Should Consider [Confederate general] Robert E. Lee’s Act of Treason.” Articles on the controversy are littered with references to “treasonous Confederates.” The implication, of course, is that modern-day Americans who defend Confederates are themselves traitors. The connection was made explicit when an LA Times headline declared, “Donald Trump is a traitor on par with [Confederate president] Jefferson Davis.”
  • 2This isn’t to say the Left doesn’t stress reverence for government institutions as well. In many ways, the difference between the Left and Right comes down to which government institutions are lauded. The Left vehemently defends the regulatory state and the welfare state. The Right, on the other hand, tends to express unreserved support for military institutions, police powers, and physical reminders of state power, such as the Capitol or a monument erected to a politician. 
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