Constitutional Law | Criminal Law | Law
Center for Law and Philosophy
Center on Global Governance
"If this be treason, make the most of it." Patrick Henry had no fear of the ultimate crime against his King. Nor did the burghers of Maryland who set ablaze the Peggy Stewart in Annapolis Harbor. One would think that for us as Americans the crime of treason would carry special significance. Our nation was born in acts of treason. The threat of prosecution made the crime foremost in the mind of the constitutional draftsmen. Indeed, treason is the only crime to find definition in our basic document.
There are other indications that the crime of treason is central to Anglo-American criminal law. First, the oldest statute in Anglo-American criminal law, enacted in 1351 and still partially in force in England, speaks to the first concern of all governments, namely, suppressing treason. Also, the United States Federal Criminal Code once began with a definition of treason. Finally, in the mid-1940's the United States Supreme Court decided two monumental cases – Cramer v. United States and Haupt v. United States – each containing long and thoughtful opinions on the constitutional foundations of treason.
History, venerable statutes, our own Constitution and prominent cases – all of these sources testify to the significance of treason in the structure of our criminal law. Yet our casebooks and textbooks totally ignore these materials. The basic criminal law course focuses on homicide, sometimes on rape and burglary, but no one discusses treason. The short explanation for this indifference might be simply that treason prosecutions are few in number. In the United States they occur in war time and in the aftermath of war. Since we are not now engaged in a war, there is little point, apparently, in thinking about treason.
My case for treason is that we should take this ancient crime more seriously in thinking about both the theory of criminal law and the mainsprings of criminal conduct. A theory of criminal law tends to abstract general propositions from the details of particular crimes. If we ignore treason in formulating our general principles, we run the risk of distorting the criminal law by overemphasizing violent crimes against persons. In order to convince you that we should thrust treason to the center of our thinking about criminal law, I shall spend most of this lecture surveying the contours of treason. At the conclusion of my argument, I shall turn to the lessons that we can learn from accepting my case for treason.
George P. Fletcher,
The Case for Treason,
Md. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1019