A series of essays and reflections. I try to write at least once and sometimes more each week. Opposing views are most welcome. This is a marketplace of ideas blog.
17 February 2017
As the National Security Advisor debacle unwound, I became increasingly concerned with some of the language that my liberal friends have adopted. In particular, a single word, treason, troubles me.
When James (Jamie to his friends) Madison was writing the Constitution, he included a clause defining one word, the only definition in the Constitution.
Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
This one word was so repugnant to Madison and the other founders that it was defined, and the sentence specifically limited. Some of this matters today and I shall unpack it a bit.
Treason in England and much of Europe meant whatever the crown said it meant. Punishments were horrible: "traitors" took a long and painful time to die, leading to another item in the Constitution, the prohibition of "cruel and unusual punishment" in the 5th Amendment. What the French called, "les majesty" or in any way dismissing or (in the current language) disrespecting, the king, queen or government was treason in England. Conspiracy or rebellion was not required.
Madison defines treason, and while leaving the penalty to Congress, he limited its authority. Specifically, the English rule that a person executed for treason left to any descendants something called, "corruption of blood"is prohibited. The idea is disturbingly simple, it means that they could neither inherit or earn any real property or title. While Madison and his co-authors prohibited titles of nobility, they did not object to simple inheritance, or land ownership. They found the idea of carrying a penalty to descendants unjust and prohibited it.
It is then no small thing to suggest someone has committed treason, or to carry disapproval to succeeding generations. Which is why the way progressives including those on talk radio, are tossing around the word, and the treatment Tiffany Trump has been receiving are worrisome. General Flynn may have violated the Lawson Act which prohibits a private person from intruding on the president's foreign policy authority. His conversations with the Russian Ambassador appear well over the line.
But notice something. Two hundred years ago, Congress enacted the Lawson Act, defining unlawful conduct, not treason! Were the conversations the General held treason, no reference to the Lawson act would be relevant. In fact the law would not exist.
Calling a US Marine flag officer a traitor is pretty far out. People who choose to be Marine officers are almost by definition patriots. They may be authoritarians, they may simply be wrong, but they do not levy war against the USA, nor do they assist its enemies. Do I think the general erred, sure. Do I know if he committed indictable felonies, nope: that is what we have prosecutors and grand juries to determine.
Consider the prohibition of inherited penalties. Whatever I think of President Trump (I do not think much of him) neither of his daughters are responsible for the incredible incompetence he and his staff have exhibited. Boycotting Ivanka's fashion line, or refusing to sit near Tiffany at a fashion show is simply wrong.
As is so often the case, the founders were right. Yes Gen Flynn erred, and it appears lied about it, and yes he could not continue as National Security Advisor. Yes nothing he has done to date suggests Mr. Trump or his staff either know or respect truth, and yes nothing suggests even marginal competence. But General Flynn is not a traitor, and Trump's daughters are not responsible for him.
Finally there is a "what if" lurking on the horizon. What if the Trump campaign actually was in touch with and perhaps receiving aid from Russia during the campaign? Go back and read Section 3. It may be that US Campaign law was violated. It may be that Mr. Trump or his campaign may have legal troubles. And whoever may have been a liaison to the Russians may have more legal issues. But again, Russia is not an enemy of the US, and violating election law is a specific action, not treason.
Words matter. Actions matter. I would not accept Mr. Trump's invitation to dinner, White House or otherwise. But, neither Ivanka nor Tiffany deserve to be shunned. I am poor. We do not buy fashion jewelry or gowns. But if we were to do so, the father of the designer would not be a factor.
We progressives do not need to adopt the worst characteristics of the rightwing. The willingness to name, "traitors" and carry penalties for generations (Tennessee is debating "legitimacy" a dark ages idea) is what I think of as the worst of the worst. We can and should do better.