Dual Allegiance: Federal and State Treason Prosecutions, the Treason Clause, and the Fourteenth Amendment

Abstract

The Treason Clause creates an individual right at a criminal trial that could have logically been placed within the Fifth Amendment rather than Article III: “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.” It has effectively prevented expansive uses of the charge at the federal level. But states may also charge citizens with treason against state governments, and many such prosecutions have played important roles in American history. This article reviews the parallel histories of state and federal treason prosecutions. It then analyzes contemporary state treason laws, showing that many, but not all, states have analogues to the Treason Clause in their own constitutions. The article focuses on those states that provide fewer protections for defendants accused of treason, or define treason more broadly than the federal Constitution, asking whether the Treason Clause should be incorporated against the states through the Fourteenth Amendment. While the doctrine of incorporation is normally applied to the Bill of Rights, I argue that the Treason Clause creates an individual right that is “fundamental to our scheme of ordered liberty” and “deeply rooted in this Nation’s history and tradition.” Its similarities to the Bill of Rights with respect to its structure and purpose argue in favor of incorporation. I also consider whether treason remains relevant in the modern context, given the lack of recent significant treason prosecutions, concluding that it does.