DUAL ALLEGIANCE: 
FEDERAL AND STATE TREASON PROSECUTIONS, THE

TREASON CLAUSE, AND THE FOURTEENTH AMENDMENT

ALEXANDER GOUZOULES*

“For if the crime of high-treason be indeterminate, this alone is sufficient
to make the government degenerate into arbitrary power.” – Montesquieu1

“You know what we used to do in the old days . . . [w]ith spies and treason,
right? We used to handle them a little differently than

we do now.” – Donald Trump2

I. INTRODUCTION

Few accusations carry as much weight as treason, the only crime defined in
the Constitution. To Blackstone, it was “the highest civil crime which (considered
as a member of the community) any man can possibly commit.”3 Under English
law in force at the time of the American Revolution, it was punishable by unique,
medieval forms of execution.4 Modern commentators have described it as
“betrayal on the grandest scale possible”5 and an offense that “still sits atop the
criminal pyramid and imposes a stigma unmatched by other crimes.”6 

Treason is also a crime that defies precise definition and raises unique
concerns. The founders of the country were unquestionably guilty of treason
when they took up arms against King George III and solicited French aid against
the English army.7 They believed, as did Blackstone8 and Montesquieu,9 that
treason charges were susceptible to misuse by arbitrary and despotic

* J.D., cum laude, Harvard Law School, 2014; M.A., Stanford University, 2011; B.A.,

Emory University, 2008.

1. CHARLES DE SECONDAT, BARON DE MONTESQUIEU, THE SPIRIT OF LAWS 139 (J.V.

Prichard eds., Thomas Nugent trans., G. Bell & Sons 1914) (1748).

2. ‘Spies and Treason’: Read a Transcript of Trump’s Remarks Related to the Whistle-

Blower, N.Y. TIMES (Sept. 26, 2019), https://www.nytimes.com/2019/09/26/us/politics/trump-

treason-spies-whistle-blower.html [https://perma.cc/S44D-XD22] (last visited Mar. 19, 2020).

3. 4 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAW OF ENGLAND *76 (William Carey

Jones ed., 1916).

4. Id. at *93-94; see also Baze v. Rees, 553 U.S. 35, 95-96 (2008) (Thomas, J., concurring).

5. B. Mitchell Simpson III, Treason and Terror: A Toxic Brew, 23 ROGER WILLIAMS U. L.

REV. 1, 5 (2018). 

6. J. Taylor McConkie, State Treason: The History and Validity of Treason Against

Individual States, 101 KY. L.J. 281, 282 (2013).

7. Cramer v. United States, 325 U.S. 1, 14 (1945) (stating that “[e]very step in the great

work of [the founding fathers’] lives from the first mild protests . . . to the final act of separation

had been taken under the threat of treason charges”).

8. BLACKSTONE, supra note 3, at *76.

9. MONTESQUIEU, supra note 1, at 139.



594 INDIANA LAW REVIEW [Vol. 53:593

governments. Because of the dangers posed by potential abuse of the charge, the
framers of the Constitution thus drafted the Treason Clause to precisely define the
crime and protect the rights of those accused of it.10 The clause first establishes
the scope of the crime and forbids legislative or judicial expansion: “Treason
against the United States, shall consist only in levying War against them, or in
adhering to their Enemies, giving them Aid and Comfort.” It then creates a
procedural right that would have fit as naturally within the Bill of Rights as it
does within 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.”11 Finally, the clause prohibits “Corruption of the Blood,” an archaic term
for the penalty through which the individual convicted of treason would lose the
ability to inherit or pass property.12

But like the Bill of Rights, prior to the passage of the Fourteenth Amendment,
the Treason Clause applied only to the federal government. While only the
federal government may bring a charge for treason against the United States,
individuals may also be charged with treason against states to which they owe
allegiance.13 Such cases have received little scholarly attention, yet the
development of federal treason law cannot be fully understood without an
understanding of the state cases.

The first section of this article outlines the history of American treason
prosecutions, emphasizing the under-examined state cases and weaving together
the parallel bodies of state and federal treason law. Doing so will update and
contribute to the existing scholarship on state treason. The seminal work on
federal treason remains James Willard Hurst’s The Law of Treason in the United
States, last revised in 1971.14 As Carlton Larson noted in his article on treason
and the War on Terror, apart from Hurst’s work, “there is virtually no scholarship
engaging doctrinal issues in American treason law.”15 

10. U.S. CONST. art. III, § 3; see THE FEDERALIST NO. 43 (James Madison) (“[A]s new-

fangled and artificial treasons have been the great engines by which violent factions, the natural

offspring of free government, have usually wreaked their alternate malignity on each other, the

convention have, with great judgment, opposed a barrier to this peculiar danger, by inserting a

constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining

the Congress, even in punishing it, from extending the consequences of guilt beyond the person of

its author.”).

11. U.S. CONST. art. III, § 3.

12. U.S. CONST. art. III, § 3; Corruption of Blood, BLACK’S LAW DICTIONARY (11th ed.

2019).

13. Gilbert v. Minnesota, 254 U.S. 325, 342 (1920) (Brandeis, J. dissenting).

14. JAMES WILLARD HURST, THE LAW OF TREASON IN THE UNITED STATES (1971). Several

works published before Hurst’s focused on early American cases. E.g., BRADLEY CHAPIN, THE

AMERICAN LAW OF TREASON: REVOLUTIONARY & EARLY NATIONAL ORIGINS (1964); Richard Z.

Steinhaus, Treason, A Brief History with Some Modern Applications, 22 BROOK. L. REV. 254

(1956); Hayes McKinney, Treason Under the Constitution of the United States, 12 ILL. L. REV. 381

(1918).

15. Carlton F.W. Larson, The Forgotten Constitutional Law of Treason and the Enemy



2020] DUAL ALLEGIANCE 595

In more recent years, James Wilson has argued that a modern death sentence
for treason would violate the Eighth Amendment.16 George Fletcher has examined
how the feudal origins of the treason charge comport with liberal theories of
criminal justice.17 Several authors have examined the applicability of the treason
charge to cases arising out of the 9/11 attacks, the War on Terror, and modern
cyber-security issues.18 Virtually unique among treason scholarship because of
its focus on state charges is J. Taylor McConkie’s article, which concludes that
state treason charges remain viable today.19

This article identifies and attempts to correct various historical omissions that
have entered into the existing scholarship,20 popular media,21 and judicial

Combatant Problem, 154 U. PA. L. REV. 863, 866 (2006).

16. James G. Wilson, Chaining the Leviathan: The Unconstitutionality of Executing Those

Convicted of Treason, 45 U. PITT. L. REV. 99, 129 (1983).

17. George P. Fletcher, Ambivalence About Treason, 82 N.C. L. REV. 1611, 1622 (2004).

18. See, e.g., Randal John Meyer, The Twin Perils of the al-Aulaqi Case: The Treason Clause

and the Equal Protection Clause, 79 BROOK. L. REV. 229 (2013); see, e.g., Larson, supra note 15;

see, e.g., Henry Mark Holzer, Why Not Call It Treason? From Korea to Afghanistan, 29 S.U. L.

REV. 181 (2002); see, e.g., Suzanne Kelly Babb, Fear and Loathing in America: Application of

Treason Law in Times of National Crisis and the Case of John Walker Lindh, 54 HAST INGS L.J.

1721 (2003); see, e.g., Tom W. Bell, Treason, Technology, and Freedom of Expression, 37 ARIZ.

ST. L.J. 999 (2005); see, e.g., Paul T. Crane, Did the Court Kill the Treason Charge?: Reassessing

Cramer v. United States and its Significance, 36 FLA. ST. U. L. REV. 635, 636 (2009) (discussing

prosecution of al-Qaeda operative Azzam al-Amriki); see, e.g., J. Richard Broughton, The Snowden

Affair and the Limits of American Treason, 3 L.M.U. L. REV. 5, 6-7 (2015).

19. McConkie, supra note 6.

20. For example, Larson wrote that the Brown treason case “might be read for the proposition

that, with respect to the issue of treason against a state, mere presence in the state [rather than

citizenship] is sufficient to create liability for treason.” Larson, supra note 15, at 889-90. But two

of Brown’s codefendants were acquitted due to their lack of citizenship. See AMERICAN STATE

TRIALS, infra note 122. McConkie wrote that, since ratification, “state courts have completed only

two treason prosecutions.” McConkie, supra note 6, at 282. This omits cases against several of John

Brown’s followers (some acquitted on doctrinal grounds and others convicted), as well as William

Blizzard, convicted of treason against West Virginia. “The United Mine Workers in West Virginia,”

infra note 222. McConkie also characterized Lynch as the only decision involving adhering to a

state’s enemies. McConkie, supra note 6, at 314. However, the Harper’s Ferry cases did as well.

HINTON, infra note 120. Meyer wrote that the “Supreme Court has consistently held that the

prosecution of criminals without the procedural and substantive protections of the Treason Clause

under a crime that is substantively treason, but differently named, is an unconstitutional prosecution

for a constructive treason offense,” citing Cramer, 325 U.S. at 45. Meyer, supra note 18, at 235.

However, this over-reading of dicta cannot be reconciled with United States v. Rosenberg, 195 F.2d

583 (2d Cir. 1952).

21. E.g., Kat Eschner, Iva d’Aquino Toguri Remains the Only U.S. Citizen Convicted of

Treason Who has Ever Been Pardoned, SMITHSONIAN MAGAZINE, Jan. 29, 2017, President Adams

issued a pardon for a treason conviction arising out of an excise tax revolt. See Case of Fries, infra

note 70.



596 INDIANA LAW REVIEW [Vol. 53:593

opinions.22 It also identifies three general trends that characterize the majority of
federal and state treason prosecutions: (1) heightened evidentiary standards
imposed by the federal Constitution and most state constitutions, (2) widespread
public sympathy for the accused in marginal cases, and (3) a tendency for
executives to grant pardons or commute sentences. Each of these three trends is
likely to dissuade prosecutors from pursuing treason charges in close cases, which
comports with the purpose of the Treason Clause and the intentions of its framers.

In the next section, this article examines the current status of state treason
law, as some contemporary authors have questioned whether the charge remains
viable.23 Such uncertainties are partially a product of literature that has
consistently overlooked several state treason prosecutions,24 thus portraying
others as more aberrational than they truly were. Given the existing body of
precedent from several states, the theoretical viability of state treason cannot
reasonably be questioned.25 I also analyze whether state and federal treason
charges have any practical relevance today, proposing that the decline in modern
treason prosecutions is not driven by cultural hesitation as to “whether and how
we should punish it,”26 as George Fletcher has suggested. Instead, the three trends
identified above have rendered the charge disfavored by prosecutors, who can
obtain convictions and harsh sentences for lesser crimes of disloyalty (such as
espionage or seditious conspiracy) against offenders whose conduct is
colloquially referred to as “treasonous.” 

This article presents a case for a partial revival of treason law, accompanied
by a de-emphasis on other disloyalty offenses, because the treason charge, with
its accompanying constitutional and practical limitations, has historically resulted

22. Inexplicably, the Supreme Court stated in a 1976 footnote that “[i]t appears that no one

has ever been prosecuted under these or other state treason laws.” Woodson v. North Carolina, 428

U.S. 280, 292 n.25 (1976). As discussed throughout this article, state treason prosecutions have

permeated American history, and several men have been executed for state treason—in fact more

than for federal treason. In Cramer v. United States, the Supreme Court stated that, “[i]n the century

and a half of our national existence not one execution on a federal treason conviction has taken

place.” 325 U.S. at 24. In fact, William Bruce Mumford was executed during the Civil War for

treason, in what contemporary newspapers described as “the first instance in the history of our

country where a man has received the punishment of death for treason.” Particulars of the

Execution of William B. Mumford for Hauling Down the U.S. Flag, N.Y. HERALD, June 19, 1862,

at 1, https://chroniclingamerica.loc.gov/lccn/sn83030313/1862-06-19/ed-1/seq-1/ [https://perma.

cc/64AD4-79KE].

23. E.g., Larson, supra note 15, at 886 (“Whether treason against an individual state was or

is a viable crime is a fascinating question, but one that lies beyond the scope of this Article.”).

24. For example, both Hurst, the preeminent American scholar of treason, and McConkie,

one of the few authors to focus on state charges, omit West Virginia’s treason cases arising out of

the Blair Mountain labor action. See generally Brandon Nida, Demystifying the Hidden Hand:

Capital and the State at Blair Mountain, 47 HIST. ARCH. 52, 63 (2013); see also McConkie, supra

note 6; see also Hurst, supra note 14.

25. See generally McConkie, supra note 6.

26. Fletcher, supra note 17, at 1612.



2020] DUAL ALLEGIANCE 597

in a better balance between the security interests of the state and the civil liberties
of the accused. The following analysis of state treason law, however,
demonstrates that prosecutions for state treason could be (and have been)
undertaken for conduct falling beyond the scope of the federal Constitution’s
Treason Clause. In the article’s conclusion, I suggest that this outcome is
improper under the modern constitutional doctrine of incorporation. 

Through the doctrine of incorporation, the Supreme Court has held that
virtually all individual rights set forth in the Bill of Rights apply against the states
through the Fourteenth Amendment. To determine whether any particular right
is incorporated against the states, the Court has analyzed whether that right is
“‘fundamental to our scheme of ordered liberty,’ or ‘deeply rooted in this
Nation’s history and tradition.’”27 This article’s review of the history of federal
and state treason law in the United States leads to the conclusion that the Treason
Clause should be incorporated against the states according to this standard.

To the best of my knowledge, this argument is novel, and it has implications
outside of criminal law, such as whether other sections of the pre-1868
Constitution should be incorporated through the Fourteenth Amendment.

II. ENFORCING ALLEGIANCE TO TWO SOVEREIGNS: THE HISTORY OF TREASON
PROSECUTIONS AT THE STATE AND FEDERAL LEVEL

A. “To Take Out of the Hands of Tyrannical Kings . . . that Deadly Weapon”:
Treason in English and Colonial Law

The statutory definition of treason in English law can be traced back to
1351.28 The Treason Act of that year established seven categories of high treason,
including levying war and adhering to the king’s enemies, as well as imagining
the death of the king, improper relations with the king’s companion or daughter,
counterfeiting royal documents or currency, and murdering royal officials.2 9 It
also defined petit treason, a crime which prohibited the violation of feudal
hierarchies: “when a servant slayeth his master, or a wife her husband, or when
a man secular or religious slayeth his prelate. . . .”30 

Although this codification ostensibly fixed the definition of the crime, the
scope of treason prosecutions in England expanded in subsequent centuries.31

Broader, judicially constructed definitions of treason came to encompass attempts
to prevent the application of a lawful statute.32 Charges of “compassing the king’s
death” were used to suppress political dissent,33 and applications of treason law

27. Timbs v. Indiana, 139 S. Ct. 682, 686-87 (2019) (quoting McDonald v. City of Chicago,

561 U.S. 742, 767 (2010)).

28. Treason Act 1351, 25 Edw. 3, Stat 5 (Eng.).

29. Id.

30. Id. 

31. BRADLEY CHAPIN, THE AMERICAN LAW OF TREASON 3-7 (1964). 

32. Id.

33. HURST, supra note 14, at 5.



598 INDIANA LAW REVIEW [Vol. 53:593

widened to the point of absurdity. Henry VIII made it treason for anyone to refuse
to take an oath acknowledging his children with Anne Boleyn as legitimate heirs
to the throne;34 he later made it treason for anyone to claim that his children with
Anne had been legitimate.35 In 1663, a man was convicted of treason for
publishing a tract suggesting that the king was accountable to the people.36

In light of the subsequent misuse of the treason charge, the relatively narrow
English Treason Act of 1351 was held in high regard by American colonists.
Indeed, it was believed to be a cornerstone of English liberties, alongside
cherished documents such as the Magna Carta.37 In his influential Commentaries
on the Laws of England, Blackstone recognized the importance of limiting the
outer bounds of the treason charge by statute: 

[B]y the ancient common law, there was a great latitude left in the breast
of the judges, to determine what was treason, or not so: whereby the
creatures of tyrannical princes had opportunity to create [an] abundance
of constructive treasons; that is, to raise, by forced and arbitrary
constructions, offenses into the crime and punishment of treason which
never were suspected to be such.38

Similarly, in his Spirit of Laws, Montesquieu wrote that, if “the crime of high-
treason be indeterminate, this alone is sufficient to make the government
degenerate into arbitrary power.”39

The earliest treason prosecutions in the American colonies were conducted
either under martial law or, in the puritan colonies of New England, according to
law derived from biblical citations.40 But by the late seventeenth century, the
colonies began to enact treason statutes that drew substantive content from the
English Treason Act of 1351 and procedural requirements from the English
Treason Trials Act of 1688, which required the testimony of two witnesses to an
overt act for a treason conviction.41 Treason law nonetheless remained fluid, and
expansive definitions were adopted in times of emergency, such as during
colonial wars with France or periods of domestic unrest.42 The charge of petit
treason, the common-law offense of violating feudal hierarchies, was also
deployed against slaves who killed whites in the colonies.43 But all told, treason

34. Act Respecting the Oath to the Succession 1534, 26 Hen. 8 c. 2 (Eng.).

35. Second Succession Act 1536, 28 Hen. 8 c.7 (Eng.).

36. CHAPIN, supra note 31, at 4.

37. Larson, supra note 15, at 870-71.

38. BLACKSTONE, supra note 3, at *76. For discussion of how the Act was viewed by early

English treatises, see HURST, supra note 14, at 16-28.

39. MONTESQUIEU, supra note 1, at 139.

40. HURST, supra note 14, at 68-70.

41. Id. at 71-72; CHAPIN, supra note 31, at 6.

42. CHAPIN, supra note 31, at 6-9; HURST, supra note 14, at 79.

43. See 11 AMERICAN STATE TRIALS 511-12 (John D. Lawson ed., 1919) (“The Trial of Mark

and Phillis (Negro Slaves) For Petit Treason, In the Murder of Captain John Codgman, Their

Master, Cambridge Massachusetts, 1755”). The offense carried a harsher method of execution at



2020] DUAL ALLEGIANCE 599

prosecutions of any type were rare, and a settled common law of treason did not
develop during the colonial period.44 

The Revolutionary War would permanently alter the substantive law of
treason in America. As Justice Jackson would later write, “[m]any a citizen in a
time of unsettled and shifting loyalties was . . . threatened under English law
which made him guilty of treason if he adhered to the government of his colony
and also under colonial law which made him guilty of treason if he adhered to his
King.”45 Although the British regarded revolutionary colonists as traitors, the
threat of reprisals against British prisoners of war prevented them from executing
those they captured—at least while the war was ongoing.46 Parliament thus
suspended the writ of habeas corpus, providing for indefinite detention of accused
colonial traitors during the course of the war.47 They likely would have faced
treason prosecutions and certain convictions had the British prevailed.48 

On the American side, the Continental Congress’s Committee on Spies
recommended that each colony enact a new law punishing treason, which it
defined as:

all persons, members of, or owing allegiance to any of the United
Colonies … who shall levy war against any of the said colonies within
the same, or be adherent to the king of Great Britain, or others the
enemies of the said colonies, or any of them, within the same, giving to
him or them aid and comfort . . .”49

All colonies apart from Georgia enacted a treason statute.50 The colonies’ formal
criminalization of treason was deeply significant, as it constituted a demand for
allegiance from citizens that was, in itself, a declaration of independence.51 Their

common law than murder: it could entail burning at the stake. See id.

44. HURST, supra note 14, at 68. The only colonial prosecution for high treason of which a

significant record remains took place in New York in 1702 and involved a power struggle between

rival factions in the colony while awaiting the arrival of a new governor from England. See Cramer

v. United States, 325 U.S. 1, 12 n.16 (1945); AMERICAN STATE TRIALS, supra note 43, vol. 10, at

518-20 (“The Trial of Nicholas Bayard for High Treason”). The defendant was charged after

petitioning the king to remove the current lieutenant governor, and he argued in his defense that

“there was no treason in exercising the right of petition for the redress of grievances.” Id. at 520.

The prosecution was controversial: the Attorney General refused to take part, and the Chief Justice

“practically forced a verdict of guilty from an unwilling jury.” Id. The defendant was sentenced to

be drawn and quartered, according to the mandatory sentence at the time. Id. Fortunately, the

sentence was never carried out, and the prisoner was released upon the arrival of the colony’s new

governor. Id.

45. Cramer, 325 U.S. at 11-12.

46. CHAPIN, supra note 31, at 25-28.

47. Id.

48. Id.

49. See HURST, supra note 14, at 84.

50. Willard Hurst, Treason in the United States, 58 HARV. L. REV. 226, 248 n.35 (1944).

51. CHAPIN, supra note 31, at 115.



600 INDIANA LAW REVIEW [Vol. 53:593

victory ensured that the revolutionaries’ actions would not be prosecuted as
treason by the British. 

The Articles of Confederation contained no mechanism for punishing treason
against the United States, nor did they establish any national courts competent to
hear such a charge.52 The individual states thus bore the responsibility of
prosecuting treason against the new nation.53 But as the Articles proved
inadequate and the nation formed a centralized national government, whether
disloyalty to that government would be punished as treason needed to be
addressed.

Surely on the minds of the delegates to the Constitutional Convention was the
fact that, but for their victory, many of them would have faced treason charges.
Also on their minds was the importance of the Treason Act of 1351 to the system
of English liberty. As Jefferson noted, that statute “has expressed and defined all
treasonable offences . . . and that this was done to take out of the hands of
tyrannical Kings, and of weak and wicked Ministers, that deadly weapon, which
constructive treason had furnished them with . . . .”54 The convention wasted little
time in inserting a restrictive treason clause into early drafts of the Constitution.55

From its initial draft, the clause defined treason only as levying war or in
adhering to the nation’s enemies, thus significantly narrowing the scope of high
treason and eliminating petit treason.56 Some of the framers, including James
Madison, argued that the clause was overly restrictive, unnecessarily limiting the
crime even further than the Treason Act of 1351 had.57 The restrictive view
nevertheless won the day, and the Convention also added a more burdensome
evidentiary limitation than the one found in the Treason Trials Act of 1688: Two
witnesses must testify to the same overt act in open court to obtain a conviction.58

In arguing for this addition, Franklin noted that “[p]rosecutions for treason were
generally virulent; and perjury too easily made use of against innocence.”59

Though James Wilson noted that this requirement might make it more difficult
to punish, for example, “carrying on a treasonable and treacherous

52. The Articles did require states to return fugitives accused of treason to the state in which

they had been accused. See ARTICLES OF CONFEDERATION OF 1781, art. IV, para. 2.

53. People v. Lynch, 11 Johns 549, 553 (N.Y. 1814) (“Under the old confederation, there was

no judicial power organized, and clothed with authority for the trial and punishment of treason

against the United States of America. It became necessary, therefore, to provide for it under the

judicial powers of the several states . . .”).

54. HURST, supra note 14, at 85-86.

55. Id. at 86.

56. Id. at 87.

57. MAX FARRAND, RECORDS OF THE FEDERAL CONVENTION, vol. 2, Aug. 20, 1787 (“Mr.

Madison thought the definition too narrow. It did not appear to go as far as the Statute of Edward

the Third. He did not see why more latitude might not be left to the Legislature. It would be as safe

as in the hands of State Legislatures; and it was inconvenient to bar a discretion which experience

might enlighten, and which might be applied to good purposes as well as be abused.”)

58. Id.; HURST, supra note 14, at 133-34.

59. FARRAND, supra note 57.



2020] DUAL ALLEGIANCE 601

correspondence with an Enemy,” he nonetheless voted for the enhanced
evidentiary standard, which was adopted.60

But what would become of state treason laws? Critically, the Convention
rejected an attempt to define treason solely at the national level. The original draft
of the Treason Clause would have established that “treason against the United
States shall consist only in levying war against the United States, or any of them;
and in adhering to the enemies of the United States, or any of them.”61 Under this
wording, the crime of treason against a state government would have become
redundant with treason against the United States. Gouverneur Morris argued that
the federal government should have “an exclusive right to declare what should be
treason,” because in a “contest between the United States and a particular state,”
the people should owe allegiance to only one authority.62 

But William Johnson and James Wilson moved to strike the words “or any
of them.”63 Johnson argued that treason against a state government was
impossible, as the federal government would be the supreme sovereign under the
proposed system.64 In opposing Morris’s wording, they were joined by George
Mason for a different reason; Mason argued that the United States would “have
a qualified sovereignty only” and that an act could be treason against a state
government that would not be treason against the United States.65 Mason’s view
prevailed: the final form of the clause did not include “or any of them,” and state
treason remained a viable crime—despite Madison expressing concern that an
offender might be subject to punishment by both a state and federal government
for the same act.66

Those who drafted the Treason Clause considered it to be of critical
importance. James Wilson in particular praised the protections it provided to
Americans as superior to those provided in England, as the “citizens of the Union
are secured effectually from even legislative tyranny: and in this instance, as in
many others, the happiest and most approved example of other times has not only
been imitated, but excelled.”67 In Federalist No. 43, Madison wrote that the
Convention “with great judgment . . . insert[ed] a constitutional definition of the
crime, fixing the proof necessary for conviction of it, and restraining the
Congress, even in punishing it, from extending the consequences of guilt beyond
the person of its author.” And in Federalist No. 84, Hamilton addressed the
criticism that the proposed Constitution contained no Bill of Rights by reference
to the Treason Clause. 

60. HURST, supra note 14, at 94.

61. Id. at 129-30 (emphasis added).

62. FARRAND, supra note 57.

63. Id.

64. Id.

65. Id. 

66. Id.

67. HURST, supra note 14, at 136.



602 INDIANA LAW REVIEW [Vol. 53:593

B. “A Qualified Sovereignty Only”: State and Federal Treason
in the Early Republic

This new law of federal treason was soon tested. The first trials and
convictions arose out of the Whiskey Rebellion and similar acts of resistance to
taxes imposed by the new government.68 Several Whiskey Rebels were convicted
of treason for their role in the brief uprising, though they received pardons from
the Washington Administration, as one of the convicted was regarded as
“probably insane” and the other “a simpleton.”69 In 1799, a group of rioters
opposed to an excise tax were convicted of treason for “constructive” levying of
war against the United States—precisely the type of expansive charge that the
framers of the Treason Clause had sought to prohibit.70 President John Adams
correctly concluded that “their crime did not amount to treason” and pardoned the
offenders.71 

These initial cases set a trend that would be continued in many future treason
cases: pardons and commutations in close cases. This trend had been anticipated
by Alexander Hamilton, who had argued against requiring Senate approval for a
treason pardon.72 Hamilton had explained that “there are often critical moments,
when a welltimed offer of pardon to the insurgents or rebels may restore the
tranquility of the commonwealth.”73

The first major judicial interpretation of the Treason Clause involved former
Vice President Aaron Burr. In 1806, Burr entered into a murky conspiracy to
create a new nation in the west consisting of lands the conspirators planned to
seize from Spain and the United States.74 Burr conspired with General James
Wilkinson and others, and the group at one point appealed to the British for funds
and a naval detachment to support their aims.75 Their convoluted plan was to use
Wilkinson’s troops to launch a border war with Spain, giving them the
opportunity to trigger a Creole uprising in newly acquired Louisiana, which they
planned to use as a base for the conquest of Spanish Mexico by a private army.76

Ultimately, a small force of volunteers assembled on an island on the Ohio River,
and Burr planned to join them downriver on a march toward New Orleans.77 But
Wilkinson betrayed Burr after President Jefferson learned of the conspiracy, and
Jefferson promptly caused his former Vice President to be apprehended.78

68. Id. at 268.

69. Id. at 269.

70. U.S. v. Fries, 9 Fed. Cas. 826, 924 (C.C.D. Pa. 1799); HURST, supra note 14, at 94, 260.

71. HURST, supra note 14, at 269.

72. THE FEDERALIST No. 74 (Alexander Hamilton).

73. Id.

74. THOMAS P. ABERNETHY, THE BURR CONSPIRACY 10-23 (1954); CHAPIN, supra note 31,

at 98.

75. ABERNETHY, supra note 74, at 15, 23.

76. See id. at 28-30.

77. See id. at 61-79.

78. See id. at 101-40; CHAPIN, supra note 31, at 99-100.



2020] DUAL ALLEGIANCE 603

Two conspirators, Erick Bollman and Samuel Swartout, were arrested and
brought under military guard to the capital.79 Jefferson asked the Senate to
suspend the writ of habeas corpus, which it duly voted to do.80 But the House did
not follow suit, giving the prisoners the chance to bring a habeas petition.81 Chief
Justice Marshall held that the evidence against Bollman and Swartout, who had
not taken part in any military formation, was inadequate to prove they had “levied
war” against the United States.82 Marshall found that, “[t]o complete the crime of
levying war against the United States, there must be an actual assemblage of men
for the purpose of executing a treasonable design.”83 The decision established that
conspiracy with the intention to assemble does not constitute treason.

The subsequent trial of Burr was chaotic.84 After the Bollman and Swartout
acquittals, the prosecution indicted Burr for actual treasonous assembling on the
island in the Ohio River—but in fact he had not been present until later.85 Thus,
the prosecution was forced to argue that Burr had “constructively” been present,
based on his participation in the conspiracy.86 But the Constitution required two
witnesses to an overt act, and there were no witnesses to Burr’s joining of a
treasonous assembly on the island.87 Burr was thus spared, demonstrating that the
charge of treason would not be expanded, even in disturbing and politically
fraught circumstances.

C. The Post-Burr Era of State Treason Charges

Every state other than Hawaii either ratified a treason clause in its
constitution or enacted a statute defining treason after joining the Union.88 The
line between these state laws and federal treason was initially blurry. During the
War of 1812, a group from New York was charged with treason by that state for
selling provisions to a British warship.89 The Supreme Court of Judicature of New
York dismissed the indictment, holding that, even “admitting the facts charged
against the prisoners to amount to treason against the United States, they do not
constitute the offense of treason against the people of the state of New-York, as
charged in the indictment.”90 The court reasoned that:

The people of this state, as citizens United States, are at war with Great

79. CHAPIN, supra note 31, at 99-101.

80. Id. 

81. Id.

82. Ex parte Bollman and ex parte Swartwout, 8 U.S. 75, 127, 135 (1807).

83. Id. at 127.

84. The prosecution’s key witness, General Wilkinson, was nearly indicted himself by the

grand jury. CHAPIN, supra note 31, at 105.

85. Id. at 98-113.

86. Id.

87. Id.

88. McConkie, supra note 6, at 291-93.

89. People v. Lynch, 11 Johns. 549, 552 (N.Y. Sup. Ct. 1814) (italics omitted).

90. Id. at 553.



604 INDIANA LAW REVIEW [Vol. 53:593

Britain, in consequence of the declaration of war by Congress. The state,
in its political capacity, is not at war. The subjects of Great Britain are
the enemies of the United States of America, and the citizens thereof, as
members of the Union, and not of the State of New-York, is laid in the
indictment.91

This same reasoning was later accepted by the Supreme Court in a different
case.92

If state treason charges could not be brought against those adhering to a
wartime enemy, what did state treason encompass? One might have expected the
state charge to wither away. However, although the next significant federal
treason case would not arise until the Civil War, notable state treason
prosecutions took place in the intervening period. In these key early years, state
jurisprudence would shape the way treason was conceived of in American law.

The first such case arose in Rhode Island, the last state to adopt its own
constitution. Rhode Island’s General Assembly exercised supreme judicial,
executive, and legislative powers pursuant to its original royal charter until the
passage of its constitution in 1842.93 Only a small fraction of its population could
vote.94 Reformers called a convention to ratify what would be known as the
People’s Constitution.95 The legislature rejected it, advancing its own, competing
constitution.96 Contested elections for governor were held in 1842, with the
establishment’s Samuel Ward King and reformer Thomas Wilson Dorr both
claiming victory under the different constitutions.97

King proclaimed martial law and sought Dorr’s arrest, while a core group of
Dorr’s supporters tried and failed to seize an arsenal in Providence.98 Ultimately,
around 140 men assembled under Dorr at Acote’s Hill, where they faced off
against 4,000 soldiers of the state militia under King.99 Dorr’s men melted away
after a brief confrontation.100 Dorr was arrested and charged with treason against
Rhode Island.101 The prosecution contended that Dorr’s appearance “at the head
of armed men, and advising them to act, is a levying war. Dispersi[ng] without
any actual engagement does not take away the character of treason.”102

Dorr’s counsel unsuccessfully argued that treason could only be committed

91. Id. (italics omitted).

92. Gilbert v. Minn., 254 U.S. 325, 342 (1920).

93. JOHN LAWSON, AMERICAN STATE TRIALS 5 (vol. 2 1914).

94. See id. at 6-7.

95. Id. at 7-8.

96. Id. at 8-9.

97. Id. at 9-10.

98. Id. at 10-11.

99. Id. at 11.

100. Id.

101. Id.

102. Id. at 21.



2020] DUAL ALLEGIANCE 605

against the United States, not against the individual states.103 The Rhode Island
court rejected this argument.104 Dorr’s counsel also argued that he did not commit
treason because he had been acting under the People’s Constitution.105 In rejecting
this defense, the court explained that the “acts set up by the prisoner . . . were
revolutionary in their character, and success was necessary to give them effect.”106

Here was a fascinating judicial acknowledgment of the fundamentally political
nature of the treason charge: All revolutionaries, including those that founded the
country, can be accused of treason.107 Guilt lies in a lack of success.

Dorr was convicted by a jury that was handpicked to include only loyalists,
and he was sentenced to life in prison.108 But his case demonstrates another
overarching trend that would apply to later treason convictions: his case drew
widespread public sympathy rather than opprobrium. Support for the imprisoned
Dorr was such that a “liberation” candidate was elected governor to replace
King.109 Dorr was released after a year, but his health never recovered from his
time in prison.110

Two years later, in 1844, Mormon leader Joseph Smith was charged with
treason against the state of Illinois.111 Smith and his followers entered Illinois
after escaping from Missouri, where they had also been charged with state treason
in 1838.112 In Illinois, the Mormons built the city of Nauvoo and established their
own militia.113 Illinois public opinion turned against the new city after it passed
a resolution calling for destruction of the anti-Mormon press, and Smith was
indicted by the state on various charges.114 Facing a potential attack from
neighboring towns, Smith called out Nauvoo’s militia.115 He and other leaders
were then charged with treason for resisting state authorities by force of arms.116

McConkie concluded that the treason charges against Smith “likely would

103. Id. at 71.

104. Id. at 84-85.

105. Id. at 72.

106. Id.

107. See United States v. Cramer, 325 U.S. 1, 14 (1945). Despite the magnitude of the offense,

most nations consider treason to be a purely political crime for which an offender is not subject to

extradition. See Charles L. Cantrell, The Political Offense Exemption in International Extradition:

A Comparison of the United States, Great Britain and the Republic of Ireland, 60 MARQ. L. REV.

777, 780 (1977).

108. Lawson, supra note 93, at 12-13.

109. Id. at 13.

110. Id.

111. HURST, supra note 14, at 264.

112. Id.

113. McConkie, supra note 6 at 310-11; Brent M. Rogers, “Armed men are coming from the

state of Missouri”: Federalism, Interstate Affairs, and Joseph Smith’s Final Attempt to Secure

Federal Intervention in Nauvoo, 109 J. ILL. ST. HIST. SOC’Y 148, 153 (2016).

114. McConkie, supra note 6, at 311.

115. Id.

116. Id.



606 INDIANA LAW REVIEW [Vol. 53:593

have failed due to a lack of treasonous intent and other legal deficiencies.”117 But
Dorr had been convicted despite having an even more persuasive argument that
he lacked treasonous intent—Dorr assembled a militia believing he was the
legitimate governor of the state. Either way, before a trial could take place, a mob
murdered Smith after dragging him from his prison cell.118 Smith’s successors in
the Church of Latter Day Saints would also be charged with federal treason in
1857 after resisting U.S. Army troops in Utah Territory, but they were not
brought to trial, as President Buchanan granted a general pardon.119 As Hamilton
had anticipated, a preemptive pardon ended a potential rebellion.

By far the most historically significant state treason trial was John Brown’s
in 1859. A deeply committed abolitionist, Brown and his sons had participated
in the “Bleeding Kansas” conflict between pro-slavery and abolitionist fighters
earlier in the decade.120 Several free-state fighters in Kansas had been captured
and charged with federal treason (Kansas had yet to achieve statehood and thus
was a federally administered jurisdiction), but Brown escaped and began planning
a new operation.121

Brown aimed to lead a small group of committed followers in a surprise
attack on Harper’s Ferry, Virginia (now West Virginia), where a large slave
population toiled near a lightly defended federal armory.122 His plan was to raise
and arm a vanguard of freed slaves and abolitionist whites that would operate in
the nearby Blue Ridge Mountains, inspiring a broader uprising that would lead
to emancipation.123 After initially taking the arsenal, Brown’s men were
defeated.124 Six civilians and fifteen of Brown’s men (including two of his sons)
were killed, and five were taken prisoner.125

The prisoners were indicted for treason against the Commonwealth of
Virginia. The resulting indictment alleged in part that Brown and his
codefendants, Aaron Stevens, Edwin Coppock, Shields Green, and John
Copeland: 

together with divers[e] other evil-minded and traitorous persons . . . not

117. Id.

118. Id.

119. David Roberts, The Brink of War, SMITHSONIAN MAG. (June 2008),

https://www.smithsonianmag.com/history/the-brink-of-war-48447228/ [https://perma.cc/9DPS-

XAS7].

120. See RICHARD J. HINTON. JOHN BROWN AND HIS MEN: WITH SOME ACCOUNT OF THE

ROADS THEY TRAVELED TO REACH HARPER'S FERRY 43-57 (1894).

121. Id. at 58-59 n.1.

122. See JOHN LAWSON, The Trial of John Brown for Treason and Insurrection, AMERICAN

STATE TRIALS 708-12 (vol. 6 1914) (hereafter “Trial of John Brown”); Robert M. De Witt, The Life,

Trial, and Execution of Captain John Brown, Known as “Old Brown of Ossawatomie;” with a Full

Account of the Attempted Insurrection at Harper's Ferry 29-30 (1859). 

123. Trial of John Brown, supra note 122, at 703.

124. De Witt, supra note 122, at 29

125. Id. at 37-38.



2020] DUAL ALLEGIANCE 607

having the fear of God before their eyes, but being moved and seduced
by the false and malignant counsel of other evil and traitorous persons
and the instigations of the devil, did . . . feloniously and traitorously
make rebellion and levy war against the said Commonwealth of
Virginia[.]126

They were also charged with inciting a slave rebellion and murder.127 When they
were brought to trial, Brown and Stevens “were unable to walk, the former
having three sword stabs in the body and a sabre cut on the head; the latter had
three bullets in his head, two in his breast, and one in his arm, he had the
appearance of a dying man and breathed with great difficulty.”128 

As will be analyzed below, Virginia law (then and today) provides a more
expansive definition of treason than the Constitution. As the prosecution noted:

[T]reason against the United States consisted only in levying war against
them or adhering to their enemies and giving them aid and comfort . . .
Yet the State law is more full, and includes within its definition of
treason the establishing, without the authority of the Legislature, any
Government within its limits, separate from the existing Government, or
the holding or executing, under such Government, of any office;
professing allegiance or fidelity to it, or resisting the execution of law,
under the color of its authority; and it goes on to declare that such
treason, if proved by the testimony of two witnesses to the same overt
act, or by confession in Court, shall be punished with death.129

Despite the fact that Brown was not a Virginia citizen, he was charged with
violating each prong of Virginia’s treason law.130 His counsel unsuccessfully
argued that a party cannot be guilty of state treason “unless he be a citizen of the
State or Government against which the treason so alleged has been committed.”131

The court rejected this argument.132 
This decision aligned with traditional principles of treason law, which hold

that non-citizens present in a state owe allegiance to it unless they entered as part
of a military invasion,1 3 3 though the decision would not align with subsequent

126. Id. at 59-61. The rushed indictment misspelled the names of Brown’s men. See Trial of

John Brown, supra note 122, at 728. Their correct names are used here.

127. Id.

128. Trial of John Brown, supra note 122, at 725-27.

129. De Witt, supra note 122, at 68.

130. Id. at 87.

131. Id. at 86.

132. Id.

133. See, e.g., WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN: OR A SYSTEM

OF THE PRINCIPAL MATTERS RELATING TO THAT SUBJECT, DIGESTED UNDER THEIR PROPER HEADS

35 (1716) (“Also it seems clear, [t]hat the subjects of a foreign [p]rince coming into England and

living under the protection of our [k]ing, may, in respect of that local [alle]giance which they owe

to him, be guilty of [h]igh [t]reason.”); see also Larson, supra note 15, at 867 (“Anglo-American



608 INDIANA LAW REVIEW [Vol. 53:593

holdings by the same court. Brown was convicted, sentenced to death, and
executed.134 Coppock’s trial began immediately after Brown’s and was largely a
repetition of it.135 He too was convicted of treason against Virginia and
executed.136

Next on trial were Copeland and Green, both of African descent; Copeland
was born free, while Green had escaped slavery before joining up with John
Brown.137 Their counsel convinced the court to dismiss the treason charges
against both defendants, on the ground that they owed no allegiance to
Virginia.138 For support, he cited the infamous Dred Scott139 decision, in which
the Supreme Court held that Americans of African descent were not citizens of
the United States, and the Virginia court was persuaded.140 The court’s legal
reasoning was muddled by racism: It had just decided that citizenship was
irrelevant to allegiance, as neither Brown nor Coppock were citizens of Virginia,
yet both had been convicted. The court appears to have concluded that non-
citizens Copeland and Green (unlike non-citizens Brown and Coppock) did not
“owe allegiance” to the state because of their race alone.141 But their legal victory
was pyrrhic; both were found guilty of murder and executed after Brown.142

Another of Brown’s men, John Cook, made a full confession that implicated
Brown and was then acquitted of treason; he was nonetheless convicted of
murder.143 Stevens’s case was transferred to federal court, potentially based on the
belief by Virginia authorities that a federal court would have jurisdiction to
“examin[e] . . . the northern friends and backers of Brown and . . . Republic
leaders.”144 It was later returned to Virginia state court and joined with the case

law has never held that allegiance is simply a question of citizenship.”); but see SANFORD

LEVINSON, CONSTITUTIONAL FAITH 116 (1988) (treason “can be committed only by a citizen”); Ex

parte Quarrier, 2 W. Va. 569, 572 (1866) (“Others may be enemies, but the citizen only may be

enemy and traitor also.”).

134. De Witt, supra note 122, at 95.

135. JOHN LAWSON, The Trial of Edwin Coppoc for Treason, Insurrection, and Murder,

AMERICAN STATE TRIALS 806-08 (vol. 6 1914).

136. Id. 

137. Id. at 809-13.

138. JOHN LAWSON, The Trial of John Anthony Copeland and Shields Green for Insurrection

and Murder, AM ERICAN STATE TRIALS 809-13 (vol. 6 1914) (hereafter “Trial of John Anthony

Copeland”).

139. Scott v. Sanford, 60 U.S. 393 (1857).

140. Trial of John Anthony Copeland, supra note 138.

141. Id. I have found no other antebellum decision suggesting that only whites could commit

treason; indeed, during the colonial period, slaves of African descent were charged with petit

treason when they committed murder. See supra note 43.

142. Trial of John Anthony Copeland, supra note 138, at 813.

143. See RICHARD J. HINTON, supra note 120, at 449-528 (confession); STEVEN LUBET, JOHN

BROWN’S SPY: THE ADVENTUROUS LIFE AND TRAGIC CONFESSION OF JOHN E. COOK 197 (2012)

(acquitted of treason).

144. Id. at 817-18 n.11.



2020] DUAL ALLEGIANCE 609

of Albert Hazlett, another of Brown’s men who had initially escaped the raid but
later was captured.145 Both were convicted of state treason and hanged on March
16, 1860.146

Brown, Coppock, Stevens, and Hazlett were the first four men put to death
for state or federal treason in the United States. They remain the only men
executed for state treason. While they may have been reviled in Virginia, their
treason trials generated intense sympathy in the North,147 which would soon find
itself at war over slavery. 

D. Rebellion and the Revival of Federal Treason

Brown’s actions were a prelude to the Civil War, an unprecedented test for
American treason law. Hundreds of Americans who had sworn oaths to defend
the United States instead took up arms for the Confederacy. Of the 1,080 officers
active in the regular army at the time of secession, 286 resigned or were
dismissed and entered Confederate service.148 Likewise, of the 900 West Point
graduates then in civilian life, 114 returned to the federal army while ninety-nine
joined the Confederate army.149 At this time of mass disloyalty, no person had
been convicted of treason against the United States since the Adams
Administration,150 and even that conviction had resulted in a pardon from Adams,
who deemed it invalid.151 

It initially appeared that treason prosecutions would play a major role in the
conflict, especially in critical border states such as Maryland that were home to
many Confederate partisans.152 Baltimore rioted when federal troops moved
through the city toward Washington, leading to the deaths of four Massachusetts
soldiers.153 Throughout April of 1861, members of the Baltimore police and the
Maryland militia set fire to strategic railroad bridges and telegraph wires leading

145. Id. at 817-18, 862-64.

146. The Vengeance of Virginia, N.Y. TIMES, Mar. 16, 1860, at 4 (“Virginia, today, will hang

two men . . . for treason to an American state.”); JOHN LAWSON, The Trial of John E. Cook for

Treason, Insurrection, and Murder, AMERICAN STATE TRIALS 862-64 (vol. 6 1914) (Stating that

Stevens and Hazlett were executed on March 16, 1860).

147. See, e.g., id.

148. RICHARD W. STEWART, American Military History, CTR. OF MILITARY HISTORY 202 (vol.

1 2009). Enlisted men proved far more loyal; only 26 left the Union army to fight for the South. Id.

149. Id.

150. JONATHAN W. WHITE, ABRAHAM LINCOLN AND TREASON IN THE CIVIL WAR, 53 (2011).

The potential exceptions are the treason indictments for the free-state fighters during the Bleeding

Kansas affair discussed above. Little record is made of these indictments—they do not appear, for

example, in Hurst’s generally comprehensive appendix of treason prosecutions prior to WWII.

151. See supra note 71.

152. JONATHAN W. WHITE. ABRAHAM LINCOLN AND TREASON IN THE CIVIL WAR, 10-11

(2011).

153. Id. at 10-12; RICHARD W. STEWART, supra note 148, at 205.



610 INDIANA LAW REVIEW [Vol. 53:593

through the state to the nation’s capital.154 These actions briefly left Washington
lightly defended as the Confederate army organized to move against the city.155

On April 27, 1861, Lincoln issued an order delegating to General Winfield
Scott the authority to suspend the writ of habeas corpus.156 Federal troops quickly
occupied Baltimore, training mortars on the city and arresting a prominent
secessionist legislator.157 Their commanding officer speculated that, if the man
“were hanged for treason,” Maryland would fall in line.158 Baltimore’s mayor and
chief of police, both Confederate sympathizers, were apprehended and
imprisoned in New York.159 Another man arrested was John Merryman, a
lieutenant in the Maryland militia who had led one of the raids against bridges
connecting the state to Pennsylvania.160 Merryman was charged with treason by
military authorities.161 Army Headquarters in Washington issued an order to
military authorities in Maryland: “you will hold in secure confinement all persons
implicated in treasonable practices unless you should become satisfied that the
arrest in any particular case was made without sufficient evidence of guilt.”162

Merryman’s habeas corpus petition, in which Chief Justice Taney found that
only Congress may suspend the writ of habeas corpus,163 remains a seminal and
controversial case.164 Parsing the uncertain aspects of that decision, including the
jurisdiction of the court that issued it,165 Taney’s motivations,166 and the actual
effect of his order,167 is beyond the scope of this article. What is significant here
is that Merryman was ultimately turned over to civil authorities and indicted by
a federal grand jury for treason.168 Merryman joined about sixty other
Marylanders indicted for treason for the riots.169

His indictment charged him with owing allegiance to the United States of

154. WHITE, supra note 152, at 14-23.

155. Id. at 17-19.

156. Seth Barrett Tillman, Ex Parte Merryman: Myth, History, and Scholarship, 224 MIL. L.

REV. 481, 485 (2016).

157. WHITE, supra note 152 at 23.

158. Id. at 23.

159. William Rehnquist, Civil Liberty and the Civil War: The Indianapolis Treason Trials, 72

IND. L.J. 927, 929 (1997).

160. WHITE, supra note 152 at 14-23.

161. Ex parte Merryman, 17 F. Cas. 144, 147-48 (C.C.D. Md. 1861).

162. Tillman, supra note 156 at 552.

163. Ex parte Merryman, 17 F. Cas. at 152-53.

164. See Tillman, supra note 156.

165. See Tillman, supra note 156 at 504-05.

166. Taney, the author of the infamous Dred Scott decision, had sympathies that lay at least

in part with the rebel cause. White, supra note 151 at 47-52. 

167. Taney did not directly order Merryman’s release. Instead, he wrote only, “I have

exercised all the power which the constitution and laws confer upon me, but that power has been

resisted by a force too strong for me to overcome.” Ex parte Merryman, 17 F. Cas. at 152.

168. WHITE, supra note 152 at 46.

169. Id.



2020] DUAL ALLEGIANCE 611

America and acting to “compass, imagine and intend to raise and levy war,
insurrection, and rebellion” against the United States.170 (The indictment’s
“compass and imagine” language was drawn from the English Treason Act of
1351, rather than the Treason Clause). Factually, it alleged that Merryman led
armed men to destroy bridges and wires so as to “hinder, delay, and prevent the
movement of military troops” as well as “prevent the speedy and rapid
transmission of intelligence.”171 But despite the serious nature of these
allegations, the case was never brought to trial.172 In 1867, after the war had
ended, federal prosecutors entered a nolle prosequi in Merryman’s interminable
case.173 He was subsequently elected to the state legislature,174 another
demonstration of the fact that treason charges have often served to create public
sympathy, rather than opprobrium, for the accused.

Why did federal prosecutors fail to obtain a conviction? The answer is
difficult to reconstruct. Key judges, including Taney, had Confederate sympathies
and did little to facilitate a speedy trial.175 Conviction by a Maryland jury was far
from assured.176 After the war ended, an amnesty appeared likely, and even men
whose disloyal conduct had been far more culpable than Merryman’s were not
charged with treason.177 

Merryman’s case exemplified a general pattern that emerged during the Civil
War: Treason charges ultimately proved an ineffective and unfavored tool for
enforcing loyalty to the Union, even during a time of open rebellion. Though a
few treason charges were brought during the course of the war,178 Congress
criminalized lesser offenses (which did not carry with them heightened
constitutional protections) to deal with disloyalty, such as the crime of
encouraging desertion.179 Congress also passed a statute explicitly allowing for
reduced punishments in treason cases of lesser significance,180 but this did not
lead to a wave of treason prosecutions.

While the war opened with large-scale treason arrests in Maryland, it closed
with no treason prosecutions even for surviving Confederate generals like Robert
E. Lee.181 Even Confederate President Jefferson Davis, initially indicted for
treason, was not ultimately brought to trial. Various technical defects in his

170. The Indictment for Treason Against John Merryman, BALTIMORE SUN, July 1, 1861

(available in Readex, “America’s Historical Newspapers”).

171. Id.

172. WHITE, supra note 152 at 48-50.

173. Tillman, supra note 156 at 493.

174. Id.at 494.

175. WHITE, supra note 152 at 47-52.

176. Id.

177. Id. at 60-61.

178. E.g. United States v. Greiner, 26 F. Cas. 36, 37 (E.D. Pa. 1861); United States v.

Greathouse, 26 F. Cas. 18, 21 (N.D. Cal. 1863).

179. WHITE, supra note 152 at 58.

180. Act of July 17, 1862, 12 Stat. 589 §1, 2.

181. WHITE, supra note 152 at 58.



612 INDIANA LAW REVIEW [Vol. 53:593

indictment were noted by jurists at the time,182 and many doubted whether federal
prosecutors could obtain a guilty verdict against Davis from a Virginia jury.18 3

Federal authorities also concluded that a treason prosecution would only increase
Davis’s popularity in the South.184 On the whole, leading Confederates escaped
prosecution because the federal government opted for a lenient policy of
amnesty.185 

That said, the Civil War also saw the only death sentence for federal treason
that has ever been carried out, rather than commuted or pardoned: the hanging of
William Bruce Mumford.186 Incredibly, after decades of extreme reticence by
courts regarding the use of the death penalty for federal treason, the action for
which Mumford was executed was the mere removal of the United States flag
from atop a federal building in New Orleans, after that city was taken by Union
forces.187

Mumford was sentenced by a provisional court, presided over by a civilian
lawyer but constituted by Lincoln under his executive authority.188 I have located
no surviving record of the trial to verify whether the procedural guarantees of the
Treason Clause were observed. The Supreme Court later affirmed the judicial
actions taken by the provisional court during the occupation of New Orleans,189

though it also subsequently stated that “not one execution on a federal treason
conviction has taken place,”190 omitting Mumford’s fate from history.

182. Case of Davis, 7 F. Cas. 63, 100 (C.C.D. Va. 1867) (considering the argument that

“belligerent acts upon the rebel side performed in the due and orderly prosecution of a recognized

civil war are not proper subjects of criminal prosecution during the conflict or after its close”).

Chief Justice Chase also believed that Davis had been punished by Section Three of the Fourteenth

Amendment, and that a further conviction would violate the principle of double jeopardy. Ian

Mitchell, The Trial of Jefferson Davis and the Treason Controversy, 39 N. KY. L. REV. 757, 758

(2012).

183. Francis MacDonnell, Reconstruction in the Wake of Vietnam: The Pardoning of Robert

E. Lee and Jefferson Davis, 40 CIVIL WAR HISTORY 119, 122 n.5 (1994).

184. Id.

185. Lincoln’s generous policy toward the South offered pardons to all who took a loyalty oath

to the United States, with certain exceptions for high-ranking Confederates, who could petition for

amnesty as individuals. See id. at 120. Andrew Johnson largely followed the same course after

assuming the presidency, and he proclaimed a universal amnesty shortly before leaving office. Id.

Congress made the questionable decision to posthumously restore full citizenship rights to Davis

and Lee in the 1970s. See id. at 119. 

186. Particulars of the Execution of William B. Mumford for Hauling Down the U.S. Flag,

supra note 22; Carol Chomsky, The United States-Dakota War Trials: A Study in Military Injustice,

43 Stan. L. Rev. 13, n.319 (1990).

187. Particulars of the Execution of William B. Mumford for Hauling Down the U.S. Flag,

supra note 22; Detlev F. Vagts, Military Commissions: The Forgotten Reconstruction Chapter, 23

AM. U. INT’L L. REV. 231, 240-41 (2008).

188. Vagts, supra note 187 at 240-41.

189. See New Orleans v. Steamship Co., 87 U.S. 387, 393-94 (1874).

190. Cramer, 325 U.S. at 24.



2020] DUAL ALLEGIANCE 613

A new legal question arose after the end of the war, which demonstrates
another unique aspect of treason as a crime: Could Union states charge their
former Confederate citizens for state treason, even if they had been granted a
federal pardon? The courts decided that they could not.191 As the Supreme Court
of Appeals of West Virginia explained in 1866, although treason is “the highest
crime known to the law . . . that is only true of treason against the State which
enacted the law; for of treason against any other State the law takes no notice.”192

Adhering to the Confederacy had been treason against the sovereignty of the
United States only, not against the sovereignty of individual states, and it thus
could not be a state crime.193 Yet another paradox of treason: “though one of the
highest crimes that can be committed against a State, [it] does not necessarily
infer anything like the detestation which attends offences of much less guilt and
danger.”194

E. Treason in the Era of Industrial Capitalism and Empire

America’s “Gilded Age” of the late Nineteenth Century was a time of
yawning inequality and economic frustration. This frustration was abetted by a
legal system that tended to override attempts at moderate political reform, such
as when it held the first income tax to be unconstitutional in 1895.195 One result
was the growth of the Populist Party, which upended the established political
system by opposing the gold standard,196 advocating for nationalization of public
utilities,197 and challenging segregation and lynching in the post-Reconstruction
South.1 9 8 Other left-wing populists gravitated toward the Socialist Party, led by

191. See Ex parte Quarrier, 2 W. Va. 569 (W.Va. 1866). 

192. Id. at 571.

193. The decision thus aligns with Lynch, People v. Lynch, 11 Johns 549, 553 (N.Y. 1814),

in holding that states may not charge treason against the United States.

194. Ex parte Quarrier, 2 W. Va. at 571 (quotation omitted).

195. Pollock v. Farmers’ Loan & Trust Co., 157 U.S. 429 (1895), modified on reh’g 158 U.S.

601 (1895).

196. See Williams Jennings Bryan, Address to the Democratic National Convention: The

“Cross of Gold” (July 9, 1896).

197. See JOHN D. HICKS, THE POPULIST REVOLT: A HISTORY OF THE FARMERS’ ALLIANCE AND

T HE PEOPLE’S PARTY 442-43 (1931) (quoting platform demanding nationalization of the railroad,

telephone, telegraph, and banking industries). 

198. See C. VANN WOODWARD, TOM WATSON: AGRARIAN REBEL 220 (1938) (quoting

populist leader Tom Watson stating that blacks and whites “are kept apart that you may be

separately fleeced of your earnings”); Gerald N. Magliocca, Constitutional False Positives and the

Populist Moment, 81 NOT RE DAME L. REV. 821, 862 n.234 (2006) (quoting populist platform

condemning lynching).



614 INDIANA LAW REVIEW [Vol. 53:593

Eugene V. Debs.199 Debs, who greatly admired John Brown,200 advanced causes
such as equal rights for women and an end to child labor alongside an end to
“wage-slavery.”201 His performance as a socialist candidate for president
demonstrated his rising influence: He won 6 percent of the national vote in
191220 2 and received nearly a million votes as a write-in candidate in 1920.203

Like his hero John Brown, Debs would ultimately pay a heavy price for his
cause.204

Accompanying these left-wing political movements was a rise in labor
activism, strikes, and demands for unionization. Many among the legal
community came to see themselves as a bulwark against the Left.205 For example,
in In re Debs, the Supreme Court upheld the use of injunctions followed by
contempt charges, rather than jury trials, to break the Pullman Strike of 1885,206

a trend decried by contemporary commentators as “government by injunction.”207

The Court reasoned that, if “a great body of [the inhabitants of a state], should
combine to obstruct interstate commerce . . . prosecutions for such offenses . . .
would be doomed in advance to failure,” and the “interests of the nation . . .
would be at the absolute mercy of a portion of the inhabitants of that single
state.”208 In essence, the Court deemed a jury trial unwarranted because jurors
would likely be sympathetic to the strikers.

Another significant case of this era was Presser v. Illinois,209 involving a

199. Eugene V. Debs, “Capitalism and Socialism” (Aug. 27, 1912) (criticizing the

“Republican, Democratic and Progressive parties” for their economic stances), in LABOR AND

FREEDOM: THE VOICE AND PEN OF EUGENE V. DEBS (“LABOR AND FREEDOM”) 173 (1916).

200. Eugene V. Debs, The Secret of Efficient Expression (1911) (“I studied the character of

John Brown and he became my hero.”), in LABOR AND FREEDOM at 19; Eugene V. Debs, Jesus, the

Supreme Leader (1914) (citing Brown, alongside Christ, Lincoln, and Marx, as “palpitant and

pervasive” historical figures), in LABOR AND FREEDOM at 23-24.

201. Eugene V. Debs, The Secret of Efficient Expression (1911) (“I believed that women

should have all the rights men have, and I looked upon child labor as a crime.”), in LABOR AND

FREEDOM at 19; “The Fight for Freedom” (July 21, 1912) (advocating an end to “wage-slavery”),

in LABOR AND FREEDOM at 162-63.

202. Neal Allen and Brian J. Brox, The Roots of Third Party Voting, 11 PARTY POLITICS 623,

626 (2005). A more fulsome account of the four-way election can be found in JAMES CHACE, 1912:

WILSON, ROOSEVELT, TAFT AND DEBS (2004).

203. See Sullivan v. Flannigan, 8 F.3d 591, 595 n.3 (7th Cir. 1993).

204. Infra notes 249-53.

205. See Gerald N. Magliocca, Why did the Incorporation of the Bill of Rights Fail in the Late

Nineteenth Century?, 94 MINN. L. REV. 102, 129-31 (2009) (quoting Supreme Court Justice David

Brewer’s speech to the New York State Bar Association denouncing “the black flag of anarchism”

and “the red flag of socialism”).

206. Id. at 34-35.

207. See Charles Noble Gregory, Government by Injunction, 11 HARV. L. REV. 487 (1898).

208. In re Debs, 158 U.S. 564, 581-82 (1895). 

209. Presser v. Illinois, 116 U.S. 252 (1886).



2020] DUAL ALLEGIANCE 615

Chicago labor group that also conducted militia drills.210 The defendant was
charged with violating an Illinois law prohibiting any group other than the state
militia from “drill[ing] or parad[ing] with arms in any city or town of this state,
without the license of the governor[.]”211 The Supreme Court rejected First and
Second Amendment challenges, holding that state governments, “unless
restrained by their own constitutions,” have the power to prohibit assemblies and
regulate military associations.212 “To deny [this] power would be to deny the right
of the state to disperse assemblages organized for sedition and treason,” the Court
reasoned.2 1 3 This wide deference to the states, hostility toward organized labor,
and hyperbolic invocation of treason set the stage for a series of labor-related
state treason cases.

In 1892, steelworkers at a Pittsburgh plant owned by Andrew Carnegie
engaged in a lockout known as the Homestead Strike. In response, the Chief
Justice of the Pennsylvania Supreme Court arranged to have thirty-three union
workers indicted for treason against the state of Pennsylvania, an unprecedented
expansion of the law of treason.214 In his charge to the grand jury, Chief Justice
Paxson instructed that “when a large number of men arm and organized
themselves by divisions and companies, appoint officers, and engage in a
common purpose to defy the law, to resist its officers, and to deprive any portion
of their fellow-citizens of the rights to which they are entitled . . . it is a levying
of war against the state, and the offence is treason.”215 Taken to an extreme, and
combined with Lochner-era doctrines concerning freedom of contract, Paxson’s
interpretation of the law threatened to make unionization treasonous.

Paxson belittled the strikers’ grievances before the grand jury: “We can have
some sympathy with a mob driven to desperation by hunger, as in the days of the
French revolution, but we can have none for men receiving steady employment,
at exceptionally high wages, in resisting the law[.]”216 He characterized public
sympathy for the striking workers as a “diseased state of public opinion growing
up with regard to disturbances of this nature.”217 But his use of treason charges
was a bridge too far: his actions caused an uproar and drew condemnation from
other lawyers, including a former justice of the Pennsylvania Supreme Court,
who published a critique that there could be no treason “without a purpose against
the state.”218 In the face of protest, the Homestead treason charges were ultimately

210. Magliocca, supra note 205, at 125-26.

211. Presser, 116 U.S. at 253. The law was similar to the one violated by Joseph Smith at

Nauvoo.

212. Id. at 267. 

213. Id. at 268.

214. HURST, supra note 14, at 199; ARTHUR G. BURGOYNE, HOMESTEAD: A COMPLETE

HISTORY OF THE STRUGGLE OF JULY, 1892 BETWEEN THE CARNEGIE STEEL COMPANY, LIMITED,

AND THE AMALGAMATED ASSOCIATION OF IRON AND STEEL WORKERS 197-99 (1893). 

215. The Homestead Case, 1892 WL 3637, at **6 (Pa. O. & T. Oct. 1892).

216. Id. at **3.

217. Id. at **4.

218. BURGOYNE, supra note 214, at 202.



616 INDIANA LAW REVIEW [Vol. 53:593

dropped.219 
Paxson’s words and actions reveal him to have been an anti-labor ideologue,

misusing the treason charge in precisely the politically motivated manner that the
framers had feared. Yet even Willard Hurst, the preeminent scholar of American
treason law, appeared to believe as late as 1945 that the charge was applicable to
labor actions.220 And Homestead would not be the last time state treason charges
were used against labor activists. 

After the Battle of Blair Mountain, a massive labor action by West Virginian
coal miners attempting to unionize that ended in violence,221 William Blizzard
and Walter Allen of the United Mine Workers of America were charged with
treason against the state of West Virginia.222 In a striking coincidence, they were
brought to trial in the same courthouse in which John Brown and his supporters
had been tried.223 Blizzard was acquitted, but Allen was convicted.224 He remains
the last man convicted of state treason.

A separate expansion of treason prosecutions arose during America’s colonial
occupation of the Philippines, where several Philippine rebels were charged with
treason against the United States.225 Philippine law established that “[e]very
person, resident in the Philippine Islands, owing allegiance to United States, or
the Government of the Philippine Islands, who levies war against them or adheres
to their enemies, giving them aid and comfort . . . is guilty of treason. . . .”226

Under this law, residents of the Philippines “owed allegiance to the United States
Government in the Philippine Islands.”227 In three cases in which Philippine
insurgents were charged with treason against the United States, two were
acquitted for want of two witnesses to an overt act, while one was convicted.228

219. HURST, supra note 14, at 200.

220. See Willard Hurst, Treason in the United States, 58 HARV. L. REV. 806, 822-23 (1945)

(noting a lack of prosecutions for “the railroad strikes of 1877, the Haymarket affair of 1886 . . .

and the Pullman strike in 1894”).

221. Brandon Nida, Demystifying the Hidden Hand: Capital and the State at Blair Mountain,

47 HIST. ARCH. 52, 63 (2013).

222. Bituminous Operators Special Committee of the United State Coal Commission, The

United Mine Workers in West Virginia, HATHITRUST at 66 (May 3, 1924) (herein “Mine Workers

in West Virginia”) https://babel.hathitrust.org/cgi/pt?id=njp.32101058847151&view=1up&seq=1

[https://perma.cc/MWR7-7FW3] 

223. John McVey, Historic Jefferson County Courthouse in Charles Town Site of Two Treason

Trials, W. VA. LAWYER, Sept. 2013, at 32.

224. Mine Workers in West Virginia, supra note 222, at 66.

225. HURST, supra note 14, at 262-63.

226. United States v. Lagnason, 3 Phil. Rep. 472, 477 (S.C. 1904).

227. Id. at 494.

228. Id. at 482-83. The fact that the American government generally considered Confederate

rebels to be valid belligerents while later considering Philippine rebels to be traitors against the

United States boggles the mind. Compare HURST, supra note 14, at 262 (“Strong arguments were

made [in the case of Jefferson Davis] that treason charges could not properly be brought against those

conducting a rebel government which had achieved the status of a recognized belligerent . . .”) with



2020] DUAL ALLEGIANCE 617

Thus, the heightened evidentiary standard frustrated treason prosecutions even
during colonial occupation. 

These decisions appear to have contemplated attacks on the Philippine
provincial authorities as treason against the government of the Philippine Islands,
whereas attacks on U.S. forces would be treason against the United States,
treating the United States and the occupied Philippine Islands as distinct
entities.229 Thus, even in America’s imperial project in the Philippines, the United
States reconstructed its unique system of dual sovereigns demanding dual
allegiances, producing two potential bodies of treason law. Though the rebels
were charged with treason against the United States, their cases were decided by
the Philippine Supreme Court rather than a U.S. federal court. The decisions thus
straddle the line between federal and state treason law.

Longstanding precedent held that a state court could not hear a charge of
treason against the United States.230 The Supreme Court would confirm this
principle in 1920, writing that “states may not punish treason against the United
States . . . although indirectly acts of treason may affect them vitally.”231

Territories, on the other hand, could hear charges of treason against the United
States, but not against the territorial government. And yet the Philippine Supreme
Court uniquely had jurisdiction over both treason against the Philippine Islands
and treason against the United States. The contradiction highlights the messy way
in which colonialism fit within the U.S. legal system.

F. World Wars, Cold War, and Modern Treason Law

Treason allegations, labor struggle and war intersected again in early
Twentieth Century Oklahoma. Tenant farmers there were immersed in poverty.
They were forced to rely on loans with 20 to 200 percent interest, and in some
cases, even 2,000 percent interest, as they labored to grow cotton on poor soil,
working twice the man-hours per acre as farmers in Mississippi or Louisiana.2 3 2

In Oklahoma counties with high rates of tenancy, Debs received over 30 percent
of the vote in the 1914 presidential election.233 Some farmers moved further left
than Debs’ Socialist Party, particularly after cotton prices collapsed, joining a
secret organization called the Working Class Union or WCU.23 4 Unlike the

id. at 262-63 (“armed effort to overthrow the [colonial Philippine] government held to be a levying

of war”).

229. Lagnason, 3 Phil. Rep. at 487-88 (describing defendant’s rebel band as having

“frequently attacked the provincial government, and on the 29th and 30th of October, 1902, made

an attack against the United States government, as constituted in the said pueblo of Murcia.”)

230. Lynch, supra note 53, at 552; Quarrier, supra note 133 at 571-72. See also McConkie,

supra note 6, at 294. 

231. Gilbert v. Minnesota, 254 U.S. 325, 342 (1920) (internal citations omitted). 

232. Nigel Anthony Sellars, Treasonous Tenant Farmers and Seditious Sharecroppers: The

1917 Green Corn Rebellion Trials, 27 OKLA. CITY U. L. REV. 1097, 1112-13 (2002).

233. Id. at 1114.

234. Id. at 1117-18.



618 INDIANA LAW REVIEW [Vol. 53:593

Socialist Party or the IWW, the WCU did not officially reject violence as a means
to political change.235

These tenant farmers felt betrayed by Woodrow Wilson’s entry into World
War I in 1917, as many had voted for his reelection on the ground that he had
kept the U.S. out of the war since 1914.236 The draft boards set up to administer
conscription for the war were discriminatory, tending to grant exemptions to
middle class whites at the expense of farmers, laborers, African Americans, and
Native Americans.237 This volatile mix of discontent led the WCU to organize an
abortive uprising, known as the Green Corn Rebellion.238 

A group of WCU rebels assembled at an Oklahoma farm in Seminole County
under a red socialist flag and began burning railroad trestles and cutting telegraph
wires. But they were soon met by law enforcement posses armed by the National
Guard, and they were dispersed shortly after they assembled. A few men were
killed (all by the posses), and some sheriffs and deputies were wounded. A broad
crackdown ensued against WCU members: 458 men were arrested, and 192 were
indicted.

The U.S. Attorney for the Eastern District of Oklahoma announced that he
would try the men for treason and seek the death penalty.239 He would have faced
a difficult task: Indictments against those WCU members who did not join the
armed assembly would have failed for the same reason why Burr was acquitted.
But the Department of Justice intervened, shifting the prosecution from treason
to the newly enacted Espionage Act, which allowed for easier convictions.240

The Espionage Act was passed after Wilson had lobbied Congress “for
legislation to suppress disloyal activities.”241 Section Three of the Espionage Act
made it a crime to “obstruct the recruit[ment] or enlistment” of the military,
which would ultimately be conflated with criticism of the war. Another section
made it a crime to conspire to violate Section Three, if any member of the
conspiracy then went on to actually violate Section Three. The act also allowed
the Postmaster General to exclude from the mail service any publication that
violated the act or “advocate[ed] or urg[ed] treason, insurrection or forcible
resistance to any law of the United States.” During Congressional discussion of
the provision, one representative explained that the Socialist Party would have the
right to affirm its allegiance to internationalism, but that it would be “treasonable”
for the party to argue that the war could not be justified—a vast overreading of
actual treason law.242 Several states followed suit, banning “criminal

235. Id. at 1118. That said, many members sought reforms legally, and the group organized

and funded lawsuits against local banks for violating usury laws. Id. at 1119. 

236. Id. at 1121-22.

237. Id. at 1124.

238. Id. at 1128.

239. Id. at 1129.

240. Id.

241. Geoffrey R. Stone, Judge Learned Hand and the Espionage Act of 1917: A Mystery

Unraveled, 70 CHI. L. REV. 335, 336 (2003).

242. Id. at 350.



2020] DUAL ALLEGIANCE 619

syndicalism.”243 These laws were ostensibly aimed against organizations that
advocated violence for political goals, but in practice they were used against
nonviolent organizations such as the IWW.244 Oklahoma went so far as to ban the
flying of red flags.245 

The Espionage Act was used to convict participants in the Green Corn
Rebellion, leading to sentences of up to ten years.246 This was merely the
beginning of the act’s deployment against ostensibly disloyalty. All told, 2,168
individuals were prosecuted under the act, resulting in 1,055 federal
convictions.247 The vast majority of these prosecutions were brought under
Section Three, rather than those sections targeting traditional spying.248 

Overreach abounded. Eugene Debs, who (like Wilson) had opposed
America’s entry to the war during the 1914 presidential election, was jailed for
giving an antiwar speech “so expressed that its natural and intended effect would
be to obstruct recruiting.”249 His conviction was affirmed by the Supreme
Court,250 in an opinion now considered to be wrongly decided.251 From prison, he
received nearly a million write-in votes for president.252 Though he was not (and
could not have been) convicted of treason, Wilson subsequently described Debs
as “a traitor to his country.”253

Rose Pastor Stokes, also active in the Socialist Party, was likewise sentenced
after making antiwar comments deemed to discourage participation in the draft.254

She had been addressing the Women’s Dining Club of Kansas City, which
included no men—she thus could not possibly have intended to obstruct military
recruitment.255

Several ministers were prosecuted for preaching pacifist religious doctrines,
demonstrating that free-exercise rights were not respected any more than free-

243. See, e.g. Berg v. State, 233 P. 497, 499 (Okla. Ct. Crim. App. 1925) (prosecution of IWW

member for criminal syndicalism, rejecting contention that the law was “an attempt to create and

define a new kind of treason”).

244. Sellars, supra note 232, at 1139-40.

245. Id. at 1140.

246. Id. at 1138.

247. Id. at 1139. 

248. Stone, supra note 241, at 337 n.13.

249. Debs v. United States, 249 U.S. 211, 215 (1919).

250. Id. at 217.

251. Sullivan v. Flannigan, 8 F.3d 591, 595 n. 3 (7th Cir. 1993) (“Debs was in prison for

expressing political views . . . that are now protected by the First Amendment.”)

252. Id. 

253. See BURL NOGGLE, INTO THE TWENTIES: THE UNITED STATES FROM ARMISTICE TO

NORMALCY, 113 (1974).

254. 13 JOHN DAVIDSON LAWSON, AMERICAN STATE TRIALS: A COLLECTION OF THE

IMPORTANT  AND INT ERESTING CRIMINAL TRIALS WHICH HAVE TAKEN PLACE IN THE UNITED

STATES, FROM THE BEGINNING OF OUR GOVERNMENT TO THE PRESENT DAY, 790-91, (1921).  

255. Stone, supra note 241, at 339.



620 INDIANA LAW REVIEW [Vol. 53:593

speech rights were.256 In 1918, the New York Times quoted DOJ officials as
stating that “[d]isloyalty fostered by certain religious sects has been growing in
the United States . . . Several German and Austrian preachers and Sunday school
teachers have been indicted for disloyal utterances, and many others . . . have
been warned to desist from criticizing the nation’s war motives.”257 

On occasion, Espionage Act prosecutions could result in farce as well as
tragedy. The Southern District of California ordered the seizure of all copies of
a film about the American Revolution, titled “The Spirit of ’76,” because it
portrayed British soldiers in a negative light. The court held that the film “may
have the tendency . . . of creating animosity or want of confidence between us and
our allies.”258

This mass repression of political dissent would have been unthinkable under
the Treason Clause, with its constitutional evidentiary limitation, its prohibition
on judicial or legislative expansion, and the traditional disapproval with which
courts, political leaders, and voters have treated expansive treason prosecutions.
Indeed, the 2,168 Espionage Act prosecutions would have exceeded by an order
of magnitude the total number of state and federal treason prosecutions ever
conducted in American history. Ironically, those Americans who actually served
as agents of Imperial Germany were properly indicted for federal treason,
suggesting that the Espionage Act may have been unnecessary to prevent actual
wartime espionage.259 In 1919, the Supreme Court considered whether Espionage
Act prosecutions should have been properly brought under the Treason Clause or
not at all, but it rejected the argument without analysis.260

Tom Bell has argued that World War II’s treason cases dangerously expanded
treason law, creating a law of “treasonous expression” that infringed on First
Amendment-protected dissent.261 But in comparison to the wild abandon with
which political dissent was suppressed during the first war, the second war’s
treason cases appear restrained. True, seven Americans who produced anti-U.S.
propaganda on behalf of Axis governments were prosecuted.262 But prewar

256. Id.; 12 JOHN DAVIDSON LAWSON, AMERICAN STATE TRIALS: A COLLECTION OF THE

IMPORTANT AND INTERESTING CRIMINAL TRIALS WHICH HAVE TAKEN PLACE IN THE UNITED

STATES, FROM THE BEGINNING OF OUR GOVERNMENT TO THE PRESENT DAY, 897-99, (1921). 

257. Warn Seditious Pastors, N.Y. TIMES, Mar. 31, 1918, at 16.

258. United States v. Motion Picture Film “The Spirit of ‘76,” 252 F. 946, 948 (S.D. Cal.

1917).

259. See, United States v. Werner, 247 F. 708 (E.D. Pa. 1918), aff’d 251 U.S. 466 (1919);

United States v. Fricke, 259 F. 673, 681 (S.D.N.Y. 1919); United States v. Robinson, 259 F. 685

(S.D.N.Y. 1919).

260. Frohwek v. United States, 249 U.S. 204, 210 (1919) (“Some reference was made in the

proceedings and in argument to the provision in the Constitution concerning treason, and it was

suggested on the one hand that some of the matters dealt with in the Act of 1917 were treasonable

and punishable as treason or not at all, and on the other that the acts complained of not being

treason could not be punished. These suggestions seem to us to need no more than to be stated.”)

261. Bell, supra note 18, at 1002-04.

262. Id. at 1003.



2020] DUAL ALLEGIANCE 621

precedent that treason could not be based on words alone263 was neither reversed
nor ignored. It was only those Americans who joined the war efforts of enemy
nations—not those who joined in domestic political dissent—who faced treason
charges for conduct during World War II.

The key case arising from the second war was United States v. Cramer,264 the
first treason case to reach the Supreme Court in over a century, involving an
American who assisted a former roommate who had joined the Nazi armed forces
and returned via a submarine to sabotage the American war industry.265 The Court
reversed Cramer’s conviction because the overt act for which there were two
witnesses, a meeting between the two in a bar, was innocent on its face and did
not manifest treasonous intent.266 Two death sentences resulted from other WWII
treason cases, but both were subsequently commuted.267 Thus, two general
characteristics of treason prosecutions—heightened evidentiary standards and a
likelihood of an eventual commutation—were respected even during America’s
participation in the bloodiest war ever fought.

Treason prosecutions played virtually no role during the Cold War. A partial
explanation is the fact that war was never declared against any communist
nations, and at least some authority can be read to suggest that war must be
formally declared for a nation to constitute an “enemy” to which a traitor may
adhere.268 Another potential explanation is that the Cramer decision raised the
difficulty of obtaining a conviction by adopting a restrictive view of the
constitutional evidentiary standard, dissuading prosecutors for trying.269 But
equally important is the fact that, during the era of the “Red Scare,” courts
allowed prosecutors to obtain the steepest punishments for lesser charges,
rendering the procedural protections of the Treason Clause largely irrelevant. 

The paradigmatic examples of this prosecutorial tilt are Julius and Ethyl
Rosenberg, both executed for the lesser crime of espionage for passing secrets to
the Soviet Union. At trial, the prosecution compared the Rosenbergs to Benedict
Arnold and referred to their conduct as “treasonable.”270 Julius appealed his death
sentence to the Second Circuit, partially on the ground that he had not been
charged with treason and afforded the protections of the Treason Clause.271 In
Cramer, the Supreme Court had noted that it would not “intimate that Congress

263. See Berg, 233 P. at 500 (criminal syndicalism prosecution, noting that treason requires

“more than mere words to constitute the offense”).

264. 325 U.S. 1 (1945).

265. For another perspective on the Cranmer decision, see Crane, supra note 18.

266. 325 U.S. 1.

267. Eisenhower Spares Life of U.S. Traitor, N.Y. TIMES, Nov. 3, 1953.

268. See Fricke, 259 F. at 681; United States v. McWilliams, 54 F. Supp. 791, 793 (D.D.C.

1944) (“The averments as to what happened between 1933 and 1940 cannot be deemed a charge

of conspiracy to commit treason since an essential element therein is aid and comfort to ‘enemies’

and Germany did not become a statutory enemy until December 1941.”)

269. See generally Crane, supra note 18.

270. Holzer, supra note 18, at 182 n.8.

271. United States v. Rosenberg, 195 F.2d 583 (2d Cir. 1952).



622 INDIANA LAW REVIEW [Vol. 53:593

could dispense with the two-witness rule merely by giving the same offense
another name.”2 7 2 Thus, the Court had gestured toward a potential doctrine
requiring a full treason prosecution for disloyalty offenses against American
citizens, particularly if maximum punishment was being pursued. However,
Rosenberg was granted no relief.273 While the United States has executed only
one American for treason, it executed two members of the Rosenberg family for
a lesser offense, raising questions about whether the Treason Clause and its
protections are now superfluous. Similarly, in a post-Cold War case arising out
of the first World Trade Center bombing, the Second Circuit determined that the
federal sentencing guidelines for treason could be applied in a conviction for
seditious conspiracy.274

While treason jurisprudence appeared to vanish during the Cold War, it saw
at least a partial revival after 9/11. Many commentators argued for an increased
use of the charge in the War on Terror, particularly after the capture of Taliban-
volunteer John Walker Lindh.275 The first treason indictment since the Second
World War was issued in 2006 against Adam Gadahn, an American citizen who
joined al-Qaeda and created propaganda videos with Osama bin-Laden.276 Gadahn
was never brought to trial; he was killed by a drone strike in 2015.277

III. INCORPORATION OF THE TREASON CLAUSE

In this section, I will argue that the Treason Clause should be incorporated
against the states by the Fourteenth Amendment, limiting state treason
prosecutions. Before doing so, I will address two threshold questions: whether
treason remains chargeable at the state level (if not, incorporation would serve no
purpose), and whether the offense of treason remains relevant enough for
questions of incorporation to be worth considering.

A. State Treason in Contemporary America

Some authors, including Larson, have implied that the contemporary viability
of state treason laws remains an open question.278 McConkie has contended that
they remain valid,279 and I conclude that he is correct. The fact that the question
can be considered open at all likely results from the fact that many state
prosecutions have been overlooked: even McConkie, whose analysis of state

272. Cramer, 325 U.S. at 45.

273. Rosenberg, 195 F.2d at 583.

274. United States v. Rahman, 189 F.3d 88 at 111-14 (2d Cir. 1999).

275. E.g., Holzer, supra note 18.

276. Crane, supra note 18, at 636.

277. Statement by the Press Secretary, WHITE HOUSE PRESIDENT BARACK OBAMA (Apr. 23,

2015), https://obamawhitehouse.archives.gov/the-press-office/2015/04/23/statement-press-secretary

[https://perma.cc/5QF5-G87Q].

278. See Larson, supra note 15, at 886 (“Whether treason against an individual state was or

is a viable crime is a fascinating question . . .”).

279. McConkie, supra note 19, at 335.



2020] DUAL ALLEGIANCE 623

treason law is thorough, nonetheless wrote that “[s]ince ratification of the
Constitution, state courts have completed only two treason prosecutions,”
identifying Brown and Dorr.280 

State treason prosecutions have been undertaken by at least eight states and
treason convictions have been obtained by three states, resulting in four
executions. No constitutional development has occurred since the conviction of
Walter Allen by West Virginia that would render state charges invalid. Of course,
it is true that no state treason prosecution has been attempted since the 1920s. But
the federal charge remained dormant between the Second World War and 2006,
just as it had remained largely dormant between Burr’s conspiracy and the Civil
War. Lack of prosecution over a period of time does not render a charge invalid.

Today, the majority of state constitutions include treason clauses that mirror
that of the U.S. Constitution. These are Alabama,281 Alaska,282 Arizona,283

Arkansas,284 California,285 Colorado,286 Connecticut,287 Delaware,288 Florida,289

Georgia,290 Idaho,291 Indiana,292 Iowa,293 Kansas,294 Kentucky,295 Maine,296

Michigan,297 Minnesota,298 Mississippi,299 Missouri,300 Montana,301 Nebraska,302

280. Id. at 300 (omitting Virginia’s convictions of Coppock, Hazlet, and Stevens, Virginia’s

acquittals of Green and Copeland, West Virginia’s conviction of Blizzard, and West Virginia’s

acquittal of Allen).

281. ALA. CONST. art. I, § 18.

282. ALASKA CONST. art. I, § 10.

283. ARIZ. CONST. art. II, § 28.

284. ARK. CONST. art. 2, § 14.

285. CAL. CONST. art. I, § 18.

286. COLO. CONST. art. II, § 9.

287. CONN. CONST. art. IX, § 4.

288. DEL. CONST. art. VI, § 3.

289. FLA. CONST. art. I, § 20.

290. GA. CONST. art. I, § I, para. XIX. The Georgia Constitution uses the term “insurrection”

in place of “levying war.”

291. IDAHO CONST. art. V, § 5.

292. IND. CONST. art. 1, §§ 28-29.

293. IOWA CONST. art. I, § 16.

294. KAN. CONST. B. of R. § 13.

295. KY. CONST. § 229.

296. ME. CONST. art. I, § 12.

297. MICH. CONST. art. I, § 22. 

298. MINN. CONST. art. I, § 9.

299. MISS. CONST. art. 3, § 10.

300. MO. CONST. art. I, § 30.

301. MONT. CONST. art. II § 30.

302. NEB. CONST. art. I, § 14.



624 INDIANA LAW REVIEW [Vol. 53:593

Nevada,30 3 New Jersey,304 New Mexico,305 North Carolina,306 North Dakota,307

Oklahoma,308 Oregon,309 South Carolina,310 South Dakota,311 Texas,312 Utah,313

Washington,314 West Virginia,315 Wisconsin,316 and Wyoming.317 In each of these
states, the legislature is prohibited from defining treason as anything other than
levying war against the state or adhering to its enemies, giving them aid and
comfort. Furthermore, defendants accused of treason may only be convicted upon
testimony of two witnesses to the same overt act, or upon confession in open
court. 

The constitutions of Massachusetts, Maryland, Pennsylvania, and Vermont
prohibit treason convictions by bills of attainder but do not provide the full
protections embodied in the Treason Clause.318 The constitutions of Illinois,319

Ohio,320 Tennessee,321 Virginia,322 and New York323 contemplate treason

303. NEV. CONST. art. 1, § 19.

304. N.J. CONST. art. I, para. 17.

305. N.M. CONST. art. II, § 16.

306. N.C. CONST. art. I, § 29.

307. N.D. CONST. art. I, § 17.

308. OKLA. CONST. art. II, § 16.

309. OR. CONST. art. I, § 24.

310. S.C. CONST. art. I, § 17.

311. S.D. CONST. art. VI, § 25.

312. TEX. CONST. art. I, § 22.

313. UTAH CONST. art. I, § 19.

314. WASH. CONST. art. I, § 27.

315. W. VA. CONST. art. II, § 6.

316. WIS. CONST. art. I, § 10.

317. WYO. CONST. art. 1, § 26.

318. MASS. CONST. Pt. 1, art. XXV (“No subject ought, in any case, or in any time, to be

declared guilty of treason or felony by the legislature.”); MD. DEC. OF R. art. 18 (“That no Law to

attaint particular persons of treason or felony, ought to be made in any case, or at any time,

hereafter.”); PA. CONST. art. I, § 18 (“No person shall be attainted of treason or felony by the

Legislature.”); VT. CONST. § 60 (“No person ought in any case, or in any time, to be declared guilty

of treason or felony, by the Legislature . . .”).

319. ILL. CONST. art. IV, § 12.

320. OH. CONST. art. III, § 11 (“Upon conviction for treason, the Governor may suspend the

execution of the sentence, and report the case to the General Assembly, at its next meeting, when

the General Assembly shall either pardon, commute the sentence, direct its execution, or grant a

further reprieve.”)

321. TENN. CONST. art. II, § 13. Like the Treason Clause of the U.S. Constitution, the

Tennessee Constitution does prohibit the punishment of corruption of blood. Art. I, § 12. However,

this does not apply specifically to treason, and that constitution does not require two witnesses to

the same overt act or limit the scope of treason charges.

322. VA. CONST. art. IV, § 9 (immunity for members of the General Assembly in all cases

other than treason, felony, or breach of the peace).

323. NY. CONST. art IV, § 4 (limiting the governor’s power to pardon in cases of treason).



2020] DUAL ALLEGIANCE 625

prosecutions but do not provide any protections to those accused of the crime, as
do the constitution of Puerto Rico324 and the Organic Act of the U.S. Virgin
Islands.325 The constitutions of Hawaii, Louisiana, New Hampshire, and Rhode
Island are silent as to treason.326 

Of the minority of states that do not provide full constitutional protections to
those accused of treason, several have enacted criminal statutes that go no further
than the Treason Clause. Rhode Island, for example, criminalizes treason to the
same extent as the Treason Clause, defining it as “levying war against this state”
or “adhering to the enemies of this state, giving them aid and comfort,” with a
punishment of life in prison (the sentence that state handed down to Dorr).327 The
Louisiana Code defines the crime similarly, but provides that it is punishable by
death.328 Notably, the Louisiana Code purports to apply both to treason against
Louisiana and against the United States.329 To the extent the statute purports to
make treason against the United States punishable by state law, it is
unconstitutional.330

Two states define treason so as to extend the charge beyond the scope of the
federal version. Vermont’s definition of treason includes treasonous
conspiracy,331 contrary to how the Supreme Court interpreted the Treason Clause
in the Burr Conspiracy cases. And as it did during the trial of John Brown,
Virginia state law continues to define five categories of treason, rather than the
two defined under federal law: 

(1) Levying war against the Commonwealth; (2) Adhering to its enemies,
giving them aid and comfort; (3) Establishing, without authority of the
Legislature, any government within its limits separate from the existing

324. L.P.R.A. CONST. art. III, § 14 (Privileges and immunities for the Legislative Assembly

do not extend to treason, felony, or breach of the peace).

325. V.I.C. Rev. Org. Act of 1954 § 6.

326. The crime of treason is referenced in the New Hampshire Constitution, which provides

that “[n]o person shall have the right to vote under the constitution of this state who has been

convicted of treason, bribery or any willful violation of the election laws of this state or of the

United States . . .” N.H. CONST. Pt. I, art. 11. However, as this clause could be read to refer only

to convictions for treason under federal law, I have grouped New Hampshire alongside the states

whose constitutions do not explicitly reference state treason charges.

327. R.I. GEN. LAWS § 11-43-1.

328. LA. R.S. § 14:113. 

329. Id. (“Treason is the levying of war against the United States or the state of Louisiana,

adhering to enemies of the United States or of the state of Louisiana, or giving such enemies aid

and comfort.”).

330. Gilbert v. Minnesota, 254 U.S. 325, 342 (1920) (“The states may not punish treason

against the United States, although indirectly acts of treason may affect them vitally.”).

331. 13 V.S.A. § 3401 (“A person owing allegiance to this State, who levies war or conspires

to levy war against the same, or adheres to the enemies thereof, giving them aid and comfort . . .

shall be guilty of treason against this State and shall suffer the punishment of death.”) (emphasis

added).



626 INDIANA LAW REVIEW [Vol. 53:593

government; (4) Holding or executing, in such usurped government, any
office, or professing allegiance or fidelity to it; or (5) Resisting the
execution of the laws under color of its authority.332

The constitutionality of these definitions is discussed below in Section C.

B. The Contemporary Relevance of Treason

Regardless of its theoretical viability at the state and federal level, has the
offense of treason become anachronistic? The question is more complex than it
appears at first glance. On the one hand, federal treason appears to have some
renewed relevance in the post-9/11 era. Carlton Larson has forcefully argued that
treason is the appropriate charge for terrorist attacks, both on the ground that
terrorists levy war against the United States and that organizations like al-Qaeda
are “Enemies” within the bounds of the Treason Clause.333 As he pointed out, if
the 9/11 attacks “did not constitute levying war against the United States, it is
hard to imagine what would.”334 At least one treason indictment has been issued
during the War on Terror. 

And even if one does not conclude that the charge is appropriate for foreign
terrorist organizations, whose members may not tend to owe allegiance to the
United States, it would appear apt for domestic terrorists like Timothy
McVeigh.335 Such terrorists may strike at either federal or state facilities, and their
actions could thus constitute either federal or state treason. Likewise, in recent
years several extremist militias have resisted federal and state authority through
armed standoffs with government agents,336and a similar group was recently
charged with conspiring to kidnap a sitting state governor.337 These types of

332. VA. CODE ANN. § 18.2-481. Virginia’s definition of treason as encompassing the

professing of allegiance to a usurped government cuts against both the Treason Clause and the

traditional common law of treason, which required allegiance even to usurpers in de facto control

of territory. See In re Sherretz, 40 Haw. 366, 380 (Haw. 1953) (At common law, “it was held that

while a usurper of the crown was in full possession of the sovereignty any attempts against the

usurper are treason unless in defense or aid of the rightful king, as allegiance is due to the de facto

king. Upon this doctrine, after Edward IV recovered the crown which had long been detained by

the House of Lancaster, treasons committed against Henry VI were capitally punished though

Henry had been declared a usurper by parliament.”) (emphasis added). See also Thorington v.

Smith 75 U.S. 1, 9-10 (1869).

333. Larson, supra note 15, at 914-5 .

334. Id. at 912-25.

335. Id. at 913.

336. See Anne Bonds & Joshua Inwood, Beyond White Privilege: Geographies of White

Supremacy and Settler Colonialism. PROGRESS IN HUMAN GEOGRAPHY 1, 9-11 (2015) (standoff

with government authorities in Nevada); Joshua Inwood and Anne Bonds, Property and Whiteness:

the Oregon Standoff and the Contradictions of the U.S. Settler State, SPACE AND POLITY 1, 1-5

(2017) (same, in Oregon). 

337. See Complaint, United States v. Fox, No. 1:20-mj-0416, ECF No. 1 (W.D. Mich. Oct. 6,

2020).



2020] DUAL ALLEGIANCE 627

actions might give rise to federal or state treason charges in the future.
Nor do I agree with George Fletcher’s argument that American society has

become “ambivalent about treason” because it “no longer conforms to our shared
assumptions about the liberal nature and purpose of criminal law.”338 Demands
to hold public figures criminally accountable for disloyalty have waxed and
waned throughout history, but they do not appear to be waning today: President
Trump—himself accused of treason by critics for various alleged connections
with Russia339—declared during the writing of this article that a whistleblower
was “close to a spy,” asking rhetorically, “You know what we used to do in the
old days . . . with spies and treason, right? We used to handle them a little
differently than we do now.”340

But there is good reason to question why many modern prosecutors would
bother seeking an indictment for treason. Two features of treason convictions
once distinguished the crime from other offenses: harsher punishments and social
opprobrium, but these no longer apply in modern cases. 

In previous eras, treason allowed a prosecutor to obtain a heightened
punishment. Under English law prior to the Revolution, treason convictions
brought with them extreme, medieval forms of punishment that differentiated the
charge: disembowelment, drawing and quartering, burning at the stake, corruption
of the blood.341 For most of American history, treason carried with it a possible
death sentence. But, as in the case of the Rosenbergs, modern prosecutors have
obtained death sentences for lesser crimes not accompanied by the strict
constitutional requirements of treason. And today, it is an open question whether
the death sentence for treason would even comport with the Eighth Amendment’s
prohibition on cruel and unusual punishment.342 In a non-capital case, the Second
Circuit has approved the use of the treason sentencing guidelines for the crime of
seditious conspiracy, implying that a treason charge will not necessarily result in
a harsher sentence than a seditious conspiracy charge.343 Thus, treason is no
longer differentiated by harsher punishment.

338. Fletcher, supra note 17, at 1612.

339. E.g. Charles Blow, Trump: Treasonous Traitor, N.Y. TIMES (July 15, 2018)

https://www.n ytim es.com /2 0 1 8 /0 7 /1 5 /opin ion /tru m p-ru ssia-in vestigation -pu tin .html

[https://perma.cc/5L7A-78VU].

340. Trump Lashes Out at Whistleblower and Renews Attack on House Intelligence Chair, THE

GUARDIAN (Sept. 30, 2019), https://www.theguardian.com/us-news/2019/sep/30/donald-trump-has-

put-whistleblower-in-danger-lawyers-say-ukraine-impeachment [https://perma.cc/DYS6-VMVL].

(Though Trump seemed to imply that traitors were historically executed as a regular practice,

readers of this article are aware that Americans executions for treason have been quite rare.)

Previously, Trump had responded to the publication of an anonymous op-ed by a cabinet official

by writing, “TREASON?” on Twitter. Trump Accuses Aide of Treason for Anonymous New York

Times op-ed, VOX.COM (Sept. 5, 2018), https://www.vox.com/2018/9/5/17825062/new-york-times-

trump-op-ed-treason [https://perma.cc/PKU2-E9DP].

341. See Baze v. Rees, 553 U.S. 35 (2008) (Thomas, J. concurring).

342. See generally Wilson, supra note 16.

343. Rahman, supra note 274.



628 INDIANA LAW REVIEW [Vol. 53:593

The other potential reason to bring a treason charge is the moral opprobrium
that accompanies what Blackstone deemed to be “the highest crime.” This is the
sense in which Henry Mark Holzer argued that the government’s failure to indict
Taliban-volunteer John Walker Lindh a “colossal mistake” because he did not
face the consequences of “betraying [his] country and its people.”344 But there are
problems with this analysis as well. As discussed above, many treason
convictions generated public sympathy rather than opprobrium.345 At the same
time, many who have not been indicted for treason nonetheless have been
colloquially labeled as “traitors.” Edward Snowden is perhaps the latest example,
having been labeled a traitor by former Vice President Dick Cheney, Senator
Dianne Feinstein, former House Speaker Newt Gingrich, Washington Post
columnist Roger Cohen, and others.346 Before Snowden, it was Chelsea
Manning,347 and before her, Jane Fonda.348 Politicians and non-academic
commentators rarely make a principled distinction between the formal charge of
treason and other crimes of disloyalty.

Should treason thus be consigned to historical discussion alone? On the
contrary, the history of the American treason charge outlined above suggests that
treason jurisprudence should be revitalized. For both constitutional and
sociological reasons, the treason charge has generally proven to be resistant to
abuse and misuse, while the Espionage Act and other disloyalty charges have not.
And even where the charge has been misused by prosecutors, such as during the
labor treason cases, the public recognized the improper use of the weighty charge
and brought pressure on the government, causing many charges to be dropped.
The same scrutiny has not always accompanied other disloyalty offenses. The
trend of replacing treason with lesser offenses is most visible at the federal level,
but it can be observed at the state level as well. New York, one of the few states

344. Henry Mark Holzer, Why Not Call it Treason?: From Korea to Afghanistan, 29 S.U. L.

REV. 181, 221-22 (2002); but see Suzanne Kelly Bapp, Fear and Loathing in America: Application

of Treason Law in Times of National Crisis and the Case of John Walker Lindh. 54 HASTINGS L.J.

1721 (2003).

345. As discussed above, Dorr’s conviction led to the election of a candidate who pledged to

“liberate” him. John Brown became a martyr to the abolitionist cause. The backlash against the

treason indictments for Homestead strikers forced the state to abandon the charges.

346. Mary-Rose Papandrea, Leaker Traitor Whistleblower Spy: National Security Leaks and

the First Amendment, 94 B.U.L. REV. 449, n.200 (2014); J. Richard Broughton, The Snowden Affair

and the Limits of American Treason, 3 L.M.U. L. REV. 5, 6-7 (2015).

347. In a military trial for “aiding the enemy” (an offense under military justice related to

treason), Manning’s prosecutor referred to her as “a traitor, a traitor who understood the value of

compromised information in the hands of the enemy and took deliberate steps to ensure that they,

along with the world, received it.” Id. Manning would be acquitted of the charge. Charlie Savage,

In Closing Argument, Prosecutor Casts Soldier as ‘Anarchist’ for Leaking Archives, N.Y. TIMES

(July 25, 2013), https://www.nytimes.com/2013/07/26/us/politics/closing-arguments-due-in-

manning-leaks-case.html [https://perma.cc/89R2-N2XB].

348. See generally, Henry Mark Holzer and Erika Holzer, “AID AND COMFORT”: JANE FONDA

IN NORTH VIETNAM (2002), a book-length argument by Holzer that Fonda was guilty of treason.



2020] DUAL ALLEGIANCE 629

without a modern treason provision, continuous to criminalize conduct analogous
to treason as criminal anarchy.349

Acts of criminal disloyalty by Americans who unambiguously owe allegiance
to the federal and state governments should primarily be viewed through the lens
of treason law. Granted, multiple courts of appeal have considered and rejected
the argument that the Espionage Act is unconstitutional because it relates to
treason without complying with the Treason Clause.350 But regardless of whether
those cases were correctly decided, they do not prohibit a re-prioritization of
treason prosecutions.3 51 On occasion, the heightened standards imposed by
treason law will lead to acquittals, as they did in the cases of Aaron Burr, various
Philippine insurgents, and Cramer. Likewise, public skepticism about whether
treason is truly an appropriate charge may lead to charges being dropped or
sentences being commuted, as it did in several of the labor treason cases. These
outcomes were anticipated by the framers of the Treason Clause and were seen
as laudable safeguards of liberty. Indeed, it is precisely when prosecutors have
been afforded ways of making the treason charge redundant that misuse has
abounded, such as during the World War I dissent cases.

C. Incorporation of the Treason Rights Through the Fourteenth Amendment

But if treason law is to be revitalized, a doctrinal change is warranted. The
distinction between state and federal treason law reflects the original federal
structure. This structure was irrevocably altered by the Civil War and the
Fourteenth Amendment, which provided in part that:

No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the laws.

The meaning of this passage “divided [the] Court for many years.”352 It sparked
a century-long legal debate about the extent to which it incorporated various
constitutional rights, most significantly the Bill of Rights but also the Writ of
Habeas Corpus, against the states.353

The most natural means for incorporation of the Bill of Rights was the

349. N.Y. PENAL LAW § 240.15.

350. See United States v. Kim, 808 F. Supp. 2d 44, 48-50 (D.C. Cir. 2011); Wimmer v. United

States, 264 F. 11, 12 (6th Cir 1920). Even if these cases are correctly decided, they do not

necessarily foreclose the argument that lesser disloyalty charges should be accompanied only by

lesser penalties, and that the steepest penalties may not be applied without the protections that

accompany the most severe disloyalty crime.

351. Holzer, supra note 344, at 185 (arguing that post-WWII Espionage Act cases could have

been brought at treason cases).

352. McDonald v. Chicago, 561 U.S. 742 (2010) (Thomas, J., concurring).

353. Akhil Reed Amar, The Bill of Rights and the Fourteenth Amendment. 101 YALE L.J.

1193, 1218-1260 (1992).



630 INDIANA LAW REVIEW [Vol. 53:593

amendment’s Privileges or Immunities Clause, but this was foreclosed by the
Supreme Court’s decision in the Slaughter-House Cases.354 That decision, just
five years after ratification of the Fourteenth Amendment, limited the Privileges
or Immunities Clause merely to those rights which “owe their existence to the
Federal government, its National character, its Constitution, or its laws.”355 

In theory, this might have left room for the clause to protect certain rights
enumerated in the Constitution—including the rights of those accused of
treason—from state infringement. But the Court went on to narrow the scope of
the clause even more drastically in the dubious United States v. Cruikshank356

decision, where it held that the right to assemble under the First Amendment and
the right to bear arms under the Second Amendment were not incorporated
through the Privileges or Immunities Clause because both rights pre-existed the
Constitution and did not depend on it for their existence.357 This left only a
handful of rights which did not pre-exist the Constitution, such as the right to
travel,358 within the scope of the clause. The rights codified in the Treason Clause,
which date to Fourteenth Century English law, clearly do not follow within its
scope under Cruikshank.

Over time, the Supreme Court embraced the view that fundamental rights that
are essential to the American “scheme of ordered liberty” and “deeply rooted” in
the nation’s history and tradition are incorporated by the Due Process Clause of
the Fourteenth Amendment.359 While there is genuine logical tension between the
incorporation of substantive rights through a clause dealing with procedure, this
proved the lesser evil compared to the late-Nineteenth Century Court’s disregard
of the clear intention of the amendment’s framers to incorporate the Bill of Rights
somewhere within the amendment.360 Virtually all of the rights established in the
first eight amendments have now been incorporated, and the Due Process Clause
has been held to incorporate against the states other rights not explicitly outlined
in the Bill of Rights.361 An unanswered but frequently debated question is whether
it also incorporates the right to a federal habeas forum.362

354. See The Slaughterhouse Cases, 83 U.S. 36 (1873).

355. Id. at 79.

356. United States v. Cruikshank, 92 U.S. 542 (1876).

357. Id. at 551-53; see also McDonald (Thomas, J., concurring).

358. Saenz v. Roe, 526 U.S. 489, 503 (1999).

359. See 561 U.S. 74 (2010).

360. Amar, supra note 353.

361. See Lawrence v. Texas, 339 U.S. 558, 562 (2003) (Due Process Clause protects “liberty

of the person both in its spatial and in its more transcendent dimensions”); Roe v. Wade, 410 U.S.

113 (1973); Allgeyer v. Louisiana, 165 U.S. 578 (1897) (Fourteenth Amendment guarantees

freedom “to pursue any livelihood or avocation”); but see ROBERT H. BORK, THE TEMPTING OF

AMERICA: THE POLITICAL SEDUCTION OF THE LAW 236 (1990) (arguing that only the Bill of Rights

is incorporated by the Fourteenth Amendment, and it was otherwise “entirely a procedural

guarantee”). 

362. See Lee Kovarsky, Prisoners and Habeas Privileges Under the Fourteenth Amendment,

67 VAND. L. REV. 609, 611-12 (2014) (“The U.S. Reports contain no answer to a million-dollar



2020] DUAL ALLEGIANCE 631

As we have seen, the framers of the Constitution created a set of rights for
anyone accused of treason by the new government. First, the offense cannot be
expanded, either by Congress or judicial interpretation, beyond levying war or
adhering to the enemies of the United States, giving them aid and comfort.
Second, the accused possesses a unique procedural right, the requirement of two
witnesses to testify to the same overt act in open court. Finally, one potential
punishment, “corruption of blood,” was abolished. This set of rights is deeply
rooted in the nation’s history; indeed, they were an expansion of rights provided
under English law that date back to the Treason Act of 1351 and the Treason
Trials Act of 1688.

We have also seen how these rights should be viewed as essential to the
American scheme of ordered liberty. Spurious treason prosecutions were a core
concern of the nation’s founders, and they carefully designed the Treason Clause
to preserve liberty by addressing that concern. To the extent that the clause does
not come to mind when a modern observer reflects on the critical provisions of
the Constitution, it is arguably because the clause has been so successful at its
intended purpose. Because of the Treason Clause, attempts to suppress dissent
through the prosecution of disloyalty have been carried out through other means
such as the Espionage Act, and the resulting battles have been fought over the
meaning of the First Amendment rather than of the Treason Clause. But we
should not mistake the scarcity of controversial treason prosecutions for
insignificance.

Incorporation of the Treason Clause would impact the states in three practical
ways. First, it would restrict states from prosecuting types of treason that were
rejected by the clause’s framers. To date, the Virginia Constitution continues to
define treason against the Commonwealth as broader than federal treason,
encompassing resistance against the execution of Virginia’s laws among other
actions. Vermont also defines treason as including treasonous conspiracies,
contrary to federal law. Incorporation would prevent prosecutions under these
expansive treason statutes, and it would clearly disallow any judicial
interpretation of any state treason clause or statute that extended beyond federal
law.

Second, incorporation would impact those few states, including New York,
that no longer explicitly criminalize treason; the New York constitution’s only
mention of treason is a restriction of the governor’s ability to pardon the crime.
Yet, New York did not so much abolish the state treason offense as replace it with
the crime of “criminal anarchy.”3 63 An incorporated treason right would provide
a defendant accused of that offense with the argument that any prosecution
against them that the charge was de facto a treason prosecution and required two

question: Are state prisoners constitutionally entitled to a federal habeas forum to contest their

custody? . . . The strongest existing argument . . . involves a theory of incorporation under the

Fourteenth Amendment’s Due Process Clause.”); see generally Jordan Steiker, Incorporating the

Suspension Clause: Is There a Constitutional Right to Federal Habeas Corpus for State Prisoners,

92 MICH. L. REV. 862, 868 (1994).

363. See N.Y. PENAL LAW § 240.15.



632 INDIANA LAW REVIEW [Vol. 53:593

witnesses to the same overt act.
Finally, incorporation would ensure that the evidentiary requirement of two

witnesses to the same overt act is applied in all treason prosecutions. Of course,
most state constitutions and treason statutes already include this requirement. But
other rights that have been incorporated through the Fourteenth Amendment, such
as the Second Amendment’s right to bear arms,364 was paralleled by near-identical
analogues in many state constitutions.365 The fact that a right has largely been
enshrined at the state level is not an argument against incorporation, and the
evidentiary requirement for treason convictions warrants incorporation.

A slight variant on this argument is that the treason rights are privileges and
immunities protected by the Fourteenth Amendment, rather than a component of
substantive due process guaranteed by that amendment. This would accord with
Justice Thomas’s concurrence in McDonald, which argued for a revitalization of
the Privileges or Immunities Clause rather than expansion of the Due Process
Clause.366 But despite the counter-intuitive nature of substantive due process, the
treason rights are a better fit for that clause than for the Privileges or Immunities
Clause. First, unlike many other substantive rights incorporated through the Due
Process Clause, the treason rights do have a procedural element: the two-witness
requirement. Second, and more importantly, the Due Process Clause applies to
“any person,” whereas the Privileges or Immunities Clause applies to “citizens
of the United States.” As we have seen, treason prosecutions turn on allegiance,
not citizenship, and the treason rights apply in all such prosecutions—even of
those who are not citizens. Incorporation through the Due Process Clause thus
seems the better outcome. 

IV. CONCLUSION

The centrality of the Treason Clause in modern constitutional jurisprudence
appears diminished at first glance. But the treason charge has at times assumed
great importance after extended periods of dormancy. In an age when concerns
about national security and accusations of disloyalty have grown increasingly
prevalent, a revitalization of the law of treason is in order. The legal and
normative restrictions around the law of treason have largely served the dual
purposes of protecting the rights of the accused while safeguarding the state
against grave betrayal. Incorporation of the Treason Clause would have a
meaningful, if contained, impact. Moreover, the conclusion that the Treason
Clause merits incorporation should inform our assessment of other rights set forth
in the pre-1866 Constitution, including the right to a federal habeas forum, that
may warrant formal incorporation against the states.

364. McDonald v. City of Chicago, 561 U.S. 742, 770-78 (2010).

365. See Alexander Gouzoules, The Diverging Right(s) to Bear Arms: Private Armament and

the Second and Fourteenth Amendments in Historical Context, 10 ALA. C.R. & C.L. L. REV. 159,

192 (2019).

366. See McDonald v. City of Chicago, 561 U.S. 742, 806-58 (2010) (Thomas, J., concurring).


	E. Treason in the Era of Industrial Capitalism and Empire
	III. Incorporation of the Treason Clause