Protecting the System

With political change, treason also changed. Battling barons, fight­ing for the crown, used treason to solidify power once they attained it. Endless bloodletting resulted. Hence, the 1495 treason act, passed after ten years of Tudor rule under Henry VII, in effect recognized de facto (not just de jure) governments.

At issue here was not the nature of the system but the identity of the ruling clan. When political change was threatened between different systems, not just by substituting royal lineages, however, the stakes increased. Treason was gradually whittled down from a welter of actions to focus on the primordial sin of fundamental regime change. Treason had once been vaguely defined as almost any conceivable action that hurt the body politic and community, especially its ruler. Gradually it came to focus on overthrowing gov­ernment, aiming to change the system fundamentally, whether in collusion with foreign enemies or not.

Such fundamental change had earlier been almost inconceivable. Dynasties, not regimes, came and went. Early modern governments sought to protect themselves by passing inherently self- contradictory laws outlawing their own end. Anyone in a position to violate these laws could not, of course, care less. In the late fourteenth century, Richard II promulgated a statute making it treasonous to attempt to repeal his new law on treason. His successor, Henry IV, having won the throne in war, repealed it shortly thereafter.¹²⁰ Treason laws' inherent contradictions were accentuated once they were deployed to protect not just the ruler but also the system.

Representative government and then democracy exacerbated the problem of treason's logical self-contradiction. How could treason be squared with the right of citizens to hold their leaders account­able? In democracies, allegedly based on natural law, actions that “would earlier have kept the hangman busy” were now under­stood as citizens' right to determine the regime that ruled them.¹²⁵ Far from being treason, criticism and change were baked into representative government. With freedom of speech a fundamental right, seditious opinions and even libel against the ruler could not be treason. And yet even democracies faced treason's fundamental incoherence: you cannot legislate across basic ruptures in legitima­tion. Only unsuccessful treason can be prosecuted.

Regimes with representative and especially democratic legitimacy allowed, indeed welcomed, criticism and reform. Yet they, too, drew the line at fundamental system change. Just as sovereign individuals cannot sell themselves into slavery without violating their freedom, so democratic regimes could not allow the undermining of popu­lar sovereignty. That principle, in turn, rested on the assumption that popular sovereignty would never willingly surrender itself into the hands of some other system. Deciding whether one dynasty or another was to sit on the throne involved no basic principles, but to tamper with a regime constituted by its subjects' free choice was serious. Insofar as democratic regimes represented the general will, to question them was to thwart that will. A traitor to democracy was an enemy of the people. Starting already with the French Revolu­tion, such reasoning was taken to its extremes in the populist pseu­dodemocracies of totalitarianism. Any criticism, however mild, was taken as tantamount to treason. Any transgression, however incon­sequential or technical, was heresy.¹²⁶ Some liberal democracies, having surveyed the ravages of authoritarianism, therefore drew robust conclusions on protecting democracy against its own worst instincts. Militant democracy was the outcome—the doctrine that lesser civil rights, such as free speech or assembly, must occasionally be sacrificed since a democracy cannot tolerate political parties that aim to overthrow popular rule. In the postwar era, more than half of Europe's nations have banned a political party for such inten­tions, mainly but not only parties on the far Right.¹²⁷

This logic existed already with the first quasi-democratic repub­lic in ancient Rome. When the monarchy was overthrown and the republic installed, each citizen had to swear never to support a king or similar leader, making it treasonous not to back the exist­ing system.¹²⁸ Similarly, in 1671 the New England colonists of New Plymouth defined treason as any attempt to alter or subvert the “Fundamental Frame and Constitutions of this Government.”¹²⁹ The US Constitution of 1787 followed suit, guaranteeing the individual states a republican form of government and promising to protect them against invasion.¹³⁰ The French revolutionaries repeated this reasoning.

But, of course, events overtake even the most ambitious intentions. The Roman emperors were not deterred by the republic's oaths. Revo­lutionary France was only the first of—so far—eight French regimes: five republics, two empires, and whatever Vichy should be called. Overturning a popularly legitimated system may be a primal political sin, but no regime is stronger than its ability to defend itself. Treason laws are only as robust as the regime that enforces them.