Episode 155 - Treason Transcript

[00:00:00] David: Hello and welcome to Overthink.

[00:00:21] Ellie: The podcast where two professors offer a philosophical angle on anything and everything.

[00:00:26] David: I am David Peña Guzmán

[00:00:27] Ellie: And I'm Ellie Anderson

[00:00:29] David: For an extended version of this episode. Community Discussion and a lot more subscribe to Overthink on Substack

[00:00:36] Ellie: David, It's been five years to the day since the insurrection at the United States Capitol on January 6th. On that day, as I'm sure almost all of our listeners, remember, a mob of Trump supporters stormed the capitol and disrupted a joint session of Congress to certify the results of the 2020 presidential election.

These Trump supporters who were convinced by Trump and his henchman baseless claims that the election was stolen and that Trump won, went to the Capitol with the intent of preventing the election results from being certified. The FBI deemed this an act of domestic terrorism and what took place that day led to Trump's impeachment by the House of Representatives for Incitement of insurrection, though he was then acquitted by the Senate.

[00:01:23] David: And when we saw that this episode was going to come out on January 6th, we proposed making the topic treason, because that's something that we haven't really covered in the podcast before. But funnily enough, Ellie, you and I both sort of missed the entire unfolding of the events of January 6th, 2021 when it actually happened, right?

Because you and I were busy in our respective closets, recording for hours, content for Overthink, and so I relate to January 6th as this pseudo event or this known event. That was really important, but because we learned about it hours after it had happened. We didn't really feel the collective panic that a lot of our friends and family members felt upon hearing the news as this was unfolding.

So Overthink really kind of overshadowed our, our experience of this watershed moment in political, recent political American history.

[00:02:23] Ellie: It was a completely absurd day for us. I mean, it was a scary day for the nation. Absurd in some ways, certainly. But yeah, no, you and I were just like hot, sweaty in our respective closets, trying to get the best sound quality possible. Super early in overthinks life. We had only started the podcast a couple months earlier and we were trying to figure out our recording schedule.

So yeah, we're recording all day, we're not looking at our phones, anything like that. And then we sort of emerge from the closet it back into the world.

[00:02:52] David: To a new political reality.

[00:02:53] Ellie: To a new political reality, so many memes we couldn't keep up. Lots of, yeah, like the actual fear was something that, like you said, we didn't experience in the moment.

And so to this day it sort of reminds me of when I used to travel over the summer before we had smartphones and then I would miss like the song of the summer or whatever, right. Because I'd be in grad school doing research, and even if I had access to social media in limited chunks due to wifi, I like wasn't online a lot.

And then we'd sort of come back to the States and be like, oh wow, that was the song of the summer. This is that, but for a far, far scarier reality. Right. And a political reality. And you know, just with the short span of a single day.

[00:03:39] David: Well, and the funny thing for me is that retrospectively I've come to the realization that the fact that we didn't experience it live has meant that it doesn't really occupy a real place in my memory of recent political events, right? Like, I don't really know when January 6th happened. I know that it was on January 6th because that's what we talk about, but I'm like, wait, was it 2020? Was it 2023? Wait, was it last year? I don't really have a very good sense of where it fits temporarily because I came to it after the fact.

[00:04:15] Ellie: Yeah. So even though you and I missed the unfolding of the actual events, you know, I started by talking about the facts there. And of course the facts were ones that became very present to us over the course of the coming weeks and years since Trump, of course, supported the rioters, but then told them at a certain point to go home under immense pressure.

And then he was actually banned from Twitter for posts that glorified violence that day. I had forgotten exactly when and why Trump was banned from Twitter. And then re revisiting the facts of this case reminded me of that. And as of the beginning of last year, nearly 1600 people had been charged with crimes related to the attack.

But just after his inauguration in 2025, as his second inauguration, as president of the US, Trump issued a full, complete and unconditional pardon to all of them. He also commuted the sentences of 14 other rioters and ordered the dismissal of all pending indictments connected to the attack.

[00:05:13] David: Today we are talking about treason.

[00:05:16] Ellie: What do changes to the legal definition of treason over time, say about our duties to the state?

[00:05:22] David: Even if treason is illegal, under what conditions might it be morally justified?

[00:05:27] Ellie: And what does a person betray when they commit treason?

[00:05:36] David: Treason is an old crime. In feudal Europe, treason was considered the highest crime against the sovereign, but it had no clear definition in common law whatsoever. What was considered treason was basically just decided by the king or the queen, which meant that treason was very often used in a very arbitrary fashion to spread fear and maintain the power of the sovereign.

[00:06:01] Ellie: interesting. Unlike completely the story that we just talked about from very recent political history. Oh, treason's treason. Until I get back into office.

[00:06:12] David: Yeah, you know, the No Kings protest, maybe it was accurately named. Since we are targeting a form of modern day sovereign power.

[00:06:21] Ellie: It's less maybe it was accurately named and more like, this is one of the reasons why it was named. Like this is a really good evidence. Right. So anyway. Okay.

[00:06:29] David: And you know, if you read Michelle Foucault's Discipline and Punish, there is a really great description of the role of public spectacles, of torture as expressions of the power of the sovereign, where the sovereign would essentially make decisions about who to let live and make die. You know, this power over life and death, that is essential to how we used to think about sovereign power, and treason in particular, was often the crime that would lead to these spectacles of punishment, you know, with people being quartered, with people being tortured in the public square because it was meant to put on display not only the body of the accused, but also the resplendent power of the sovereign himself or herself.

[00:07:16] Ellie: Yeah, so we start with having this kind of vague crime of treason, which was considered the highest crime against the sovereign, as you mentioned, but you know, vague in the sense that it wasn't defined. And then at least in England we get a definition of treason as of 1351, where treason is codified with the treason Act of 1351.

And this is one of the oldest statutes that's still on the books. The definition in this act is as follows. If a man do levy war against our Lord the king in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort. So basically the idea that you're either levying war against the king like on the king's own land, or you are an ally of the king's enemies.

Again, on in his realm, so like on this land and giving to them aid and comfort. But in addition to these features, there were also other conditions for treason. So for instance, compassing or imagining the death of the sovereign, what we would now call conspiracy or sedition was included. Just imagining the death of the sovereign was enough.

As well as violating that is having sex with the king's wife or the sovereign's eldest, unmarried daughter, or the sovereign's eldest son's wife. You know, we gotta have some like property ownership of women involved in this definition of treason as well. The idea there was that that was an act of treason because it violates the protection of the royal bloodline.

[00:08:50] David: Which of course is how the Rite of Kings is established and it unfolds in historical time. But the imaginative dimension of this, or the role of imagination is so fascinating because if imagining the death of the sovereign was enough to turn you into a treasonous subject, I think most of us today would be guilty of treason under Trump.

Because let me tell you, I am not just imagining, I am full-blown fantasizing in highly vivid detail, but it also raises the question right about into what spheres of human experience criminality can reach. Just like thinking about a crime, is that enough to constitute a crime.

[00:09:34] Ellie: Exactly. It's like literally a thought crime. The idea of imagining the death of the sovereign as a treasonous act, and you know, you might wonder like, how do they really adjudicate that? How do you prosecute somebody for that crime of imagination?

[00:09:49] David: It's giving minority report. that movie?

[00:09:52] Ellie: Definitely, definitely.

I think now we live in at least a freer society than we did then, although I'm sure Trump would love to prosecute us for the crimes of imagining his death.

[00:10:04] David: One more clarification on the concept itself that I think is really important. Early on there were actually two different kinds of treason. There was high treason, which is what we now just call treason, and it was meant to capture any serious afront to the sovereign and their legitimacy. And that's what led to those spectacular public punishments that Foucault talks about, for example, such as torture, But then there was this other version of treason, which was called petty treason. And petty treason was actually just what we now would call homicide, but it was a kind of homicide in which one person killed their social superior specifically. So imagine a wife killing their husband or a servant killing their master.

And eventually, if you trace this notion of petty treason down the centuries, it eventually merges with the modern concept of homicide. But at the time, this was considered real treason because of course there's a continuum of power and authority owing to patriarchy that connects the sovereign to the husband, to the father, and that's where we get this notion of men as the sovereigns of their own private domestic kingdom.

[00:11:23] Ellie: It's fascinating to realize that treason did encompass basically homicide against your superior in the household, and I think that partakes of a lot of traditionally understood ways of approaching the family, like the idea that the husband is the sovereign of the home, and that the wife, children, and servants are obedient to him.

The metaphor of the state, you know, and the family as a microcosm of the state is a very common idea going back many centuries. And I think this is, you know, bringing it to the present day, something that feminist political philosophers have thought about in terms of the distinction between the public and private, perhaps not being as clear as it seems.

And so we might think about, okay, well the family is just a microcosmic metaphor for the state, but actually it goes beyond the metaphor. It really is actually a microcosm of the state because of the way the power plays out within it.

[00:12:25] David: It's like a micro political reconstruction of the state, right? Like with similar political categories and dynamics.

[00:12:32] Ellie: Well, and, and actually not similar, but same, right? That's the difference between the sovereign being the head of the household as just a metaphor versus like actuality. And I think here we see that in actuality, like there it was just a different form of the same crime. It was treason in both cases.

So going back to high treason, like you said, the form of treason that we usually associate with the crime today, there is a reason why this is considered the highest crime against the sovereign. And that's because it occurs at the limits of legality itself. So the Medieval scholar, Neil Cartlidge, for instance, points out that treason wasn't so much a crime within the law, but it was actually a crime against law itself.

And because of this, because of this severity, it led to maximally severe punishments like the ones that you mentioned. You know, being drawn and quartered doesn't get much worse than that. And cartilage says that treason was a transgression inherently so serious as to mark the point at which the law is or should be completely merciless.

Like you give up any claim to mercy if you transgress against law itself.

[00:13:45] David: And the idea that once you target the law, the law can go after you know wholes barred. It points to the fact that in your act of treason, and you have essentially targeted the social contract as such, right? It's not that you have violated a term of the social contract. It's almost as if you are threatening the very fabric of a civil society by taking out the rug from under the social contract itself.

And so if we think about this historically, originally in the 1300s, treason is defined in this way, either attacking the sovereign or aiding the enemies on the soil of the sovereign with this imaginative component and also this clause about the bloodline. That's what treason was. Now, if we fast forward a couple of centuries to the 1700s, when the US Constitution is created, we get an important new development in our understanding and treatment of treason.

And that's because the US Constitution also gives a definition of treason taking inspiration from that treason Act of 1351. Except that it changes it a little bit. Treason is actually the only crime that is outlined in the US Constitution. No other crime, is outlined.

[00:15:01] Ellie: it does make sense. I mean, I'm no legal scholar. Sorry guys. It's a speculation here, but it makes sense in as much as we might consider treason to be a crime against law itself, right?

[00:15:11] David: Yeah, in a way the only crime against the Constitution itself would be treason, right? And so that's the only one that the Constitution itself would care for. And so in the US Constitution, we get the following definition of treason. Again, you'll hear echoes of that earlier one. But then I wanna mention some differences.

Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. So very similar language, but the key word here that I wanna draw our attention to is the word only the US Constitution limits the concept of treason to just active efforts at overthrowing the government.

And so it gets rid of the crimes of imagination that we talked about, and it also gets rid of crimes of bloodline. Those no longer constitute treason on American soil.

[00:16:07] Ellie: Lucky us. And I mean obviously that does give our citizenry a much greater degree of freedom. Like you do have the freedom, David, to imagine and to openly mention that you imagine the death of our would be sovereign.

[00:16:23] David: And to and to sleep with the partner of the sovereign. Don't forget, like I'm free to go after Melania Trump now.

[00:16:31] Ellie: Yeah. Not David seducing Melania Trump to try and mess up the bloodline. I would love to watch that TV show. So this more restrictive definition though, is the one that then determines treason charges on US soil.

I think the most famous example, of course, is Benedict Arnold, like his name is associated with treason in the US but you know, a case that is closer to my own heart, given that I am a Lin-Manuel Miranda Truther. I think he is one of the greatest artistic minds of our time, and the fact that he has become cringe doesn't make him any less brilliant.

Is that of Aaron Burr, who is of Hamilton fame. Aaron Burr, if you haven't brushed up on your US history or if you haven't watched Hamilton, which I do highly recommend where you can listen to the soundtrack, it basically got me through a period of depression in 2016, but that is a story for another time.

Aaron Burr was the vice president under Thomas Jefferson, and he hatched a plan to use his connections to establish his own entirely independent country in the south west of the Mississippi River. So I actually should specify this isn't dramatized in Hamilton. This is like post Hamilton, the musical, Lin Manuel we are waiting for a sequel about Burr's plot against Jefferson.

[00:17:51] David: United States, the sequel.

[00:17:54] Ellie: We need to know what the name of Burr's desired independent country in the South is.

[00:17:58] David: Well, I mean, it would have to be like separated states because they like, you know, they're not united anymore.

[00:18:05] Ellie: No, but I really wanna know what the name is because part of what was frustrating in doing a bit of research about the Burr conspiracy was that there's actually very little information about what he envisioned this country to be like. So he wanted to establish his own entirely independent country in the south west of the Mississippi River.

This is known as the Burr Conspiracy, but eventually these plans reached Jefferson and then Jefferson had Burr arrested and charged with treason. And yeah, we just don't know a lot about what that country actually would have looked like. His political career was destroyed after he was charged with treason.

But interestingly, he wasn't convicted. In the Supreme Court ruling on this case. The court said you can only be charged with treason if you actually participated in active hostility against the state. Per the constitution, Burr hadn't committed any treasonous acts because he hadn't committed any concrete acts.

He didn't take up arms. He only planned to found a country. So he had like the imagination, maybe some written stuff, you know, if it were in the present day, he would've written his blog post or his like Twitter thread about the country that he was gonna found, but he hadn't actually committed concrete acts.

[00:19:14] David: Well, and it seems like there is more freedom than just imagination, right? Because he imagined it and then he started planning for it. He just never got to the point of acting upon it. And I haven't seen Hamilton, I'm sorry to say

[00:19:28] Ellie: It's okay. Like I like teed us up for Hamilton and then this like story isn't even in it. But anyway, go ahead

[00:19:34] David: That's fine. But I did know about Burr's plan to create a new country, and I know that it wouldn't just include the Western territories like Louisiana, but also good chunks of Mexico. So that's how I knew about this plan because his idea was to create a new country that had some of what is now the US and somewhat of what is like northern Mexico.

[00:19:55] Ellie: David you could been born a US citizen if Burr had been able to carry out his plan.

[00:19:58] David: I know it would've saved me so much work but we do know that what he envisioned was a monarchy. He wanted to be monarch of Mexico or of this new country that would be the United States of Mexican American land.

[00:20:13] Ellie: Not you just like coming up with names for Burr's Country, which I will say like they're horrible names. David, you need something way more exciting than this, it needs be like Burrland or that's not even that great either.

[00:20:23] David: Burrland? That's better? Yeah, I mean, we need to work on our marketing.

[00:20:28] Ellie: UtopiBurr.

[00:20:29] David: If you're gonna be a treasonous insurrectionist,

[00:20:31] Ellie: can you give me a moment for UtopiBurr

[00:20:34] David:  UtopiBurr, no

[00:20:35] Ellie: Burrtopia.  Burrtopia is way better.

[00:20:38] David:  Burrtopia is better.

[00:20:39] Ellie:  UtopiBurr, why did I reach for that instead of  Burrtopia?

[00:20:43] David: So yeah, you know, we have these cases you mentioned, Burr, you mentioned the other one, but I think the other.

[00:20:48] Ellie: The other one? Benedict Arnold.

[00:20:50] David: Yeah, the Arnold one, but I do think the most important historical reference for treason in the United States is John Brown, who was the first person in the US to be executed for treason.

So this is where we see the modern day making a spectacle of the power of the sovereign in connection to this afront to the legitimacy of the office. And John Brown was a very famous white abolitionist who was convicted for treason against the state of Virginia. And the reason that he was convicted of treason is because he raided a federal armory with the intention of taking the guns and giving them to enslaved people in order to start a slave revolt.

And so like Burr. He had dreams of creating a new country, but you know, it was like a woke country rather than a backwards looking monarchy. As in the case of Burr uniting Mexico and the United States. And he actually went as far as crafting a constitution that he would put in place for this political vision of a post-slavery United States.

And he went around trying to get people on board, including Frederick Douglass, who looked at him and said, look, I think this is a suicide mission and, I'm not really ready to put my own vision of what an American future looks like on the line for this particular new country. And so he declined

[00:22:29] Ellie: Well, and unfortunately Frederick Douglass was right because it didn't go the way that John Brown had planned. I love his, yeah, the woke vision for, you know, the Browntopia.

[00:22:43] David: The wokesurrection.

[00:22:45] Ellie: So one important thing to note though, despite these high profile cases, especially as you mentioned, Brown's is important because it led to execution, is that not a lot of people have actually been convicted for treason. It's very rare. And the reason for this is because the bar for conviction, as we saw with Burr, is quite high.

So remember, the US Constitution defines it as levying war against the US or aiding enemies. So cases of treason can only really happen when we are at war. And in fact, during World War I, the US passed a number of laws to expand the state's ability to prosecute treasonous activity, or rebellious activity that they wanted to, you know, define as treason that threatened the sovereign but didn't meet the high bar that, you know, we. Have for this crime, and this is how the Espionage Act of 1917 was born. We're going deep into the history right now, guys. I know we're throwing a lot of facts at you. We will bring the philosophical threads together over the course of this episode.

But I think this is important because the law that was established in 1917, this espionage Act has been really influential. It's been used to prosecute people like the socialist, Eugene Debs, the anarchist, Emma Goldman, and the WikiLeaks founder, Julian Assange.

[00:24:00] David: Yeah, and the espionage act, I think it also tells us something about the elasticity of the power of the sovereign, that after the laws of the power to prosecute imagination and bloodline crimes as treason, and seeing that power contract later, it tries to expand it with the creation of new concepts.

Like suddenly the concept of espionage enters legal discourse. But it is true that very few people have been actually prosecuted for treason, and I was really shocked by just how few, actually, you know, only around 20 people have been convicted in the history of the United States, and around half of those were World War II cases specifically.

And of course, yeah, you know, there's a lot more people have been who have been charged for other crimes like espionage. But that's not really as high as treason. And so, you know, there is definitely a hierarchy of criminality here that we need to keep in mind. But I also think this is a good place for us to think about the elements that constitute this hierarchy of criminality.

Because there are a number of crimes that are very closely related to treason, but that are not identical to it. And so here are some of the crimes that are operating in this political space. Of course, there is treason at the highest level of the hierarchy, and treason is defined as acting to wage, war against and overthrow the government or aid its enemies in doing so. Then there is another crime, which is insurrection, and that's slightly more general than treason. It's defined simply as rebellion against the authority of the government. So that can take many, many forms.

[00:25:45] Ellie: that's what we call January 6th, right? The insurrection.

[00:25:48] David: Yeah, we call, and maybe we should have called it treason. There was a lot of debate around what term to use for the taking over of the capitol. Aside from treason and insurrection, you also have sedition.

And sedition is defined as incitement or promotion of rebellion against the government, and that's what Trump was actually charged with. And so here it's just like if you're encouraging people to rebel, even if you yourself are not participating necessarily in the rebellion.

[00:26:16] Ellie: Ironically, even though Trump was charged with sedition and it's very clear that he actually committed it, he loves accusing his enemies of sedition. So in 2025, he accused democratic lawmakers who were encouraging the military not to obey illegal orders. If they were asked to carry them out of all caps, seditious behavior, punishable by death.

Right? And so there's this irony by which like, this man is obsessed with sedition and treason and its ilk when he's like really the main perpetrator of them in contemporary US politics.

[00:26:52] David: Yeah. And as we all know from our understanding of legal theory, sedition in all capitals is worse than lowercase sedition. You know, it's a much more serious

[00:27:04] Ellie: In constitution of truth social, yes.

[00:27:07] David: And so in terms of this hierarchy, we have treason at the top, insurrection, sedition, and then there's a final term sort of at the bottom that I think is really interesting when we keep in mind the original definition of treason.

And that is seditious conspiracy. Basically, seditious conspiracy is like. Sedition itself, but without the actions of incitement, without inciting rebellion. So you can think about the agreement between two parties. Let's say you and I, Ellie, in one of our meetings to prepare an episode of Overthink, decide that we wanna overthrow the government, but we just talk about it, the two of us.

But we never actually write a pamphlet. We never actually release an episode encouraging other people to join our rebellion. We would be guilty in theory of seditious conspiracy, 'cause we're just conspiring in private. And because it has this private dimension, it actually sounds very similar to the original crime of treason by imagination, where even if you don't do anything, you can still be guilty of a crime.

[00:28:16] Ellie: We've just discussed some very specific and well-known historical examples of treason, as well as the fact that treason has a long history of being the crime of all crimes. But as you learn in an ethics 101 class, you shouldn't confuse what is illegal with what is moral. So while treason has a clear legal status, it's not immediately clear what we should think about it in a moral or even a philosophical context.

So let's get into this now.

[00:28:45] David: Let's, because when we approach treason, if we think about treason from a philosophical perspective rather than a legal one, I think it makes sense to define treason as a subset of a general type of action or behavior such as betrayal. The psychoanalyst, Phyllis Greenacre makes a few helpful distinctions in writing about this that I wanna bring into the conversation here.

She defines betrayal, this general category as a violation of trust, and she keeps that quite general, right? When you betray somebody, you are violating the trust that they placed in you in any aspect of life. But within this vast domain of betrayal, we can make some distinctions and introduce some subcategories.

So within betrayal we find two sub terms. There is treachery, and that is a personal betrayal. That is when I, David betray you, Ellie, and violate our trust as individuals. Like I'm a treacherous friend because I stabbed you in the back. And then there is treason, and that is a betrayal, not against a private citizen, but against the state as such.

[00:30:03] Ellie: So this provides kind of a nice start for us, but there's an interesting article by the philosopher Cecile Fabre called The Morality of Treason, where she argues that it's still not very clear on this general definition who can commit treason, right? So we've got this violation of trust, but who exactly can betray the state?

So it might seem obvious at first, right? Like you can betray the state if you are a member of that state, if you're a citizen. But Fabre asks us to consider a quote from a famous treasonous spy named Kim Philby, who says, to betray, you must first belong. I never belonged. And there are multiple ways that we might think about this lack of belonging.

Is it that you might have been born into a certain country and so you are a citizen of that country, but you fundamentally disagree with its political formation? You don't find yourself represented in what Rousseau would call the general will, right? Is it that you don't belong because certain rights are not extended to you, that are extended to others.

And so we can think about the long history of inequality in this country. Like would a woman prior to suffrage be capable of committing treason if she doesn't have voting rights to begin with, and so on and so forth. So what kind of relationship do you need to have with a political community in order to betray it?

[00:31:27] David: And I think that's a really central question because when I think of treason, I wanna give a really easy answer to that question. I wanna just say, look, it's nationality, right? If I am a Mexican citizen, I can commit treason against Mexico. But definitionally, I cannot commit treason against Angola or against Brazil, no matter what I do to those countries, right?

Because I don't belong to their social contract. I am not a member of that nation state. And so I think this does capture how we typically think of treason, that treason is a betrayal of trust by a member of the political community, here understood exclusively in terms of nationality, whether by birth or by naturalization.

[00:32:15] Ellie: Which puts some limits on what the current federal government can say or who, whom they can accuse of treason, given that they want to take away birthright as citizenship. And they certainly think a lot of people who would have the nationality American don't really count. Right? And so therefore they can't commit treason.

So certainly, nationality is a standard idea here, but Fabre thinks that nationality is both over inclusive and under inclusive. That is to say there are cases where citizens cannot commit treason, and cases where non-citizens can. One of the examples that she gives of the latter is William Joyce, who was the last person executed for treason by the UK.

He fled to Germany to work for the Nazis during World War II, but his British citizenship was forged, and technically he was never a citizen of the UK, but we might rightly say that he committed treason anyway.

[00:33:11] David: And the reason is because he really had ties of belonging and membership in the uk, even though technically from a legal standpoint, he was never actually a citizen. what matters is not just like this technicality of what country is on your passport, it's actually about your rootedness in the life of a political community.

[00:33:33] Ellie: Exactly. And so for Fabre, what's ethically relevant is your social membership in a political community, and that's what Joyce had. So nationality is only a formal membership, but in practice, this membership isn't necessarily equal among people, right? For instance, oppression, as I mentioned earlier, denial of rights affect the strength of one's social ties, and thus also one's relationship of trust with the state.

So think about a black American living in Mississippi in the 1950s. This is another example that she gives. At the time, their rights were not entirely legally enshrined, and they were definitely denied on a practical level. So if this person gives intelligence to the Soviet Union, are they acting treasonously?

Legally? The answer is yes, but ethically speaking, Faber's perspective is no. They're treated as second class citizens. They're not full members of the social group, and so they can't commit treason against it. They don't have the requisite belonging or social membership in order to even count as potential committers of treason.

[00:34:34] David: And so this is about who can commit treason, not in the practical sense of being physically able to carry out actions against the state, but who can be a candidate to qualify as a treason is subject under the law, right? And I really like this more expansive view because it takes us out of that purely formal domain of nationality, and it does make us think, more broadly about what it means to betray and to betray you first must belong. Now that question is really about the definition of treason, right? It's like, who can commit treason technically, but that still doesn't tell us anything about the moral status of treason. So let's assume that this guy who had a fake nationality in the uk, okay, he can't commit treason.

But can we say that in some cases, treason is morally permissible? Or is it always morally impermissible once you are a member of the community? And so I wanna know what Fabre thinks about the moral dimension rather than the definitional dimension of treason.

[00:35:39] Ellie: She thinks there are cases where treason is permissible and that there are even cases when treason is mandatory. So if your government, yeah, if your government is violating someone's fundamental rights, then it is permissible to commit treason. The rights don't have to be yours.

[00:35:57] David: So like John Brown, you know, we talked about the case of John Brown, the white abolitionist who wanted to give arms to enslaved people for a slave revolt. It was not his rights that were being violated. So maybe he is committing treason, but it is morally permissible.

[00:36:11] Ellie: No, he is, but it is permissible. Exactly. Exactly. And she says that, you know, in a case like this. You can't even validly pledge to serve a political actor who commits violations of fundamental rights. And so it's really moot whether or not you're betraying them, right? Like there's no, there's no valid pledging of allegiance to them from the get go.

She says it's a similar case to somebody being unable to validly pledge to serve a mafia boss who commits similar wrongdoings.

[00:36:43] David: I see. And okay, so hearing you answer this and talking about the cases where it's permissible and mandatory, I'm coming to the realization that one thing that I like about this definition that is rooted in betrayal and political membership is that normally we think of treason as a one-way street.

Citizens violate the integrity of the state, and so can only commit treason in that direction. Now the state is also a possible candidate for betraying our trust, right? Like the state in violating my rights or the rights of somebody else has breached, quote unquote the social contract. And so now there is the possibility that that opens up a moral sphere of action through treason for me.

So it's more bidirectional

[00:37:28] Ellie: Well, and that then leads us to the circumstances under which treason is mandatory. So we've just talked about when they're permissible, she says that it's mandatory to commit treason if you find yourself with information that you know would impede the violation of human rights

[00:37:44] David: Uh, repeat that. If you found information that, what.

[00:37:47] Ellie: you know, would impede the violation of human rights. So a violation of human rights is being committed. You then have information that could somehow inhibit, or even prevent or stop altogether that violation. That's a situation in which treason is mandatory.

[00:38:05] David: Okay, really good. Now I wanna ask you about a concrete case, that is somewhere between the permissible and the mandatory, and that touches upon the ethics of treason, and that is the real world case of Edward Snowden. So back in 2013, Snowden released all these unclassified documents about the NSA and government surveillance programs.

And, you know, those were violations of our civil liberties. And through the release of these documents, we came to know that they were happening. And so, in a sense, he released information that could be used to prevent further abuses of power. Now, in response, a number of politicians called for him to be tried for treason.

But on the other hand, a lot of people really saw Snowden as an exemplar of civil disobedience. And so where do we fall in relation to this case? Were his actions merely permissible, or do we wanna say that he had a moral obligation to release those files because his treason was mandatory morally?

[00:39:13] Ellie: Yeah, so definitely I think Snowden, his act of treason would be permissible from a Fabrian framework. Whether or not it's mandatory, I would consider an open question,

[00:39:26] David: Mm-hmm.

[00:39:27] Ellie: and I think that depends on whether or not you think there was a violation of fundamental rights. There was a violation of rights, I would say.

Don't you agree with that, David?

[00:39:38] David: Yeah. Of civil liberties, for sure.

[00:39:39] Ellie: Yeah, yeah. But whether it's a violation of fundamental rights, I think is a bit of an open question.

[00:39:44] David: I see. I see. So it's, it has to do partly with the severity of the violation rather than just like, oh, any violation by the state opens the door to justifying treason. It really has to be fundamental.

[00:39:57] Ellie: But Cartlidge, whom I mentioned earlier, makes an interesting point about Snowden here that I wanna bring in because he points out that Snowden's crime is unique to a high tech virtual world. And the conservative push to charge Snowden with treason was a rhetorical strategy to reinforce the sovereignty of the state in an age where the boundaries of the state are more and more unclear.

Right. And so we've been sort of dancing around the question of social media and online posting and stuff, and whether that counts as treason, right? Can you commit seditious conspiracy, if not treason, via a call for social media? Probably. But can you commit treason itself? Maybe not. And so treason wasn't invoked, Cartlidge thinks, in spite of its archaic connotations, but rather he thinks it was invoked exactly because treason sounds outdated and archaic for such a crime.

[00:40:48] David: Yeah, it seems like you have to more directly touch the body of the sovereign, broadly construed in order for your actions to constitute treason. But in this digital world, it's less clear that you're actually directly targeting, you know, the body of Leviathan as such.

[00:41:07] Ellie: But to call this an act of treason is a way of saying you were touching that body. You were involving yourself in a, you know, an act of waging war on the US government. And so it's not inevitable. Let's just say that it's not inevitable that Snowden was charged with treason. His charges only make sense under the espionage act and theft of government property, right?

And so, even though there was this sort of invocation of treason, that invocation actually depends on other things that are related to treason but aren't exactly quite it, in order for, you know, his actions to be considered real crimes.

It should be clear by now that not all charges of treason are created equal. I'm not necessarily trying to defend Aaron Burr in his attempt to start Burrtopia, but we may wanna follow Fabre in defending people like Snowden and other whistleblowers who are considered treasonous. And in fact, you could even argue here, we get to the point, that the very celebration of America's founding is a celebration of treason.

So there's a kind of deep hypocrisy in American condemnations of treason because our country was founded on an act of treason. And this is something that George Fletcher brings up in his article, the Case for Treason. The very reason that treason was the only crime defined in the Constitution is because Americans were very conscious of the possibility of being tried for it.

So this is even a step beyond our point earlier that like, well, maybe treason is defined in the Constitution because it's the crime against law itself. Fletcher brings in this historical point, is like, no, no, actually Americans were very aware of the possibility of treason because they just committed it.

So that's why they wanted to offend against it in the constitution.

[00:42:59] David: Well, yeah, you can't really start a revolution and create a whole new state without first breaking your ties of fidelity to your previous political masters. And so every

[00:43:11] Ellie: says Aaron Burr from the grave.

[00:43:13] David: Yeah, exactly. So every act of liberation sort of begins with an act of treason and betrayal from a certain perspective.

And that's why the charge of treason assumes fidelity to the state as a starting point, right? In the sense that treason is the violation or the undermining of that fidelity. And I think this is why treason has an exclusively negative connotation in legal theory, where it is always a crime that we want to avoid.

And that's very different than the connotations of something like civil disobedience. And, you know, we've done a whole episode on civil disobedience, thinking about the meaning of that term. But the boundary between treason and civil disobedience can be shockingly blurry. And so the question that we can ask here is, could some cases of treason actually be better described as cases of civil disobedience? Especially when you're talking about conditions of oppression and if they can be re described in that way. Does that mean that acts of treason are not just morally justifiable, which we talked about a few minutes ago, but can they also be politically valuable as a way of changing the social order?

[00:44:28] Ellie: Yeah, and I think here we see a big difference between somebody like Snowden and people like the Insurrectionist from January 6th, because I think we should understand Snowden's act as an act of civil disobedience. It's an act against surveillance state. It's an act against sort of corporate ownership of the state and a lot more than that.

But I think that is squarely a case of civil disobedience. Whereas I think the insurrection, whether or not we call it insurrection versus sedition versus treason, it's very clearly something different because it's an attempt to prevent the certification of fairly achieved election results.

[00:45:09] David: Mm-hmm.

[00:45:10] Ellie: That's threatening to the state on a fundamental level.

As opposed to threatening the sort of corporatized surveillance state, perversion of the state that we see with  Snowden's acts.

[00:45:21] David: Yeah. I mean, from that perspective then January 6th is treason, right? Because it targets the fabric of the social order itself.

[00:45:29] Ellie: Well, it could be insurrection or sedition though, right?

[00:45:32] David: Of course.

[00:45:33] Ellie:  Because if treason is defined as the act of waging war, right? That goes back to those definitions you were talking about.

[00:45:38] David: Yeah. But taking over the capital. Violent means.

[00:45:42] Ellie: Yeah for, for sure. I think there's a case to be made that it's treason rather than insurrection, but I kind of wanna leave that aside because the point is just that it's not civil dose obedience.

[00:45:50] David: Yeah, no, that's right. And I, I just wanna like underscore that I think it was treason.

[00:45:56] Ellie: Noted, David.

[00:45:56] David: I'm going for the higher version of the accusation.

[00:46:00] Ellie: Okay. Well, so let's think a little bit about the question of the political value of treason. So we've talked about, yeah, the moral justification, but your last question kind of turned us to whether or not it might be politically valuable. And I think it just depends on what you mean by politically valuable.

The philosopher Leonard Harris, for instance, talks about something like this in an article he has on insurrection. He thinks that insurrection is never instrumentally wise, but that it is honorable. And he talks about Frederick Douglass and John Brown as examples here. So, as you mentioned earlier, David Frederick Douglass considered John Brown's attempt to be a suicide mission and therefore didn't support it.

Harris says, we can't blame Douglass for not going with John Brown because Douglas correctly assessed the risks and he had the courage to associate with him and to support him, that is Brown, in other ways. However, the risk of retaliation doesn't mean that one should refrain from insurrection.

Insurrection is honorable. It responds to the violence of oppression by seeing those who are dehumanized as full members of the moral community, even when they're not treated as such. So take the case of slave revolts Harris says that the most reasonable and emotionally coherent response to insult is a tenacious, irreverent, passionate response of enmity.

It's so good. such a good passage. He goes on, such responses are one way that slaves or agents understanding themselves as advocates for slaves see themselves as authorial voices. And so their responses then take the slave to be full persons who are due membership in the moral community.

The crime is that they have been denied membership in the moral community. We might also say political and legal community, but let's just focus on moral for the moment, right? And so in response to that, it is honorable to start an insurrection. He says it is a response due praise and exalted regard. That is honor.

[00:47:56] David: I love the reintroduction of the medieval concept of honor into political theory because I, I think the concept of honor does highlight the importance of taking on risks and dangers to oneself for the sake of a greater good.

[00:48:09] Ellie: Are we due for an honor episode?

[00:48:11] David: I think maybe,

[00:48:13] Ellie: did we do an honor episode? And then I was mixing up with heroes. I don't think we did an honor episode. Not me like checking right now. I'm pretty sure we haven't, but I do think that would actually be really interesting episode topic.

[00:48:23] David: But Harris's account has been really influential in particular because he has encouraged other philosophers, especially political philosophers, to really take seriously the implications of whatever political theory they embrace for these difficult cases of things like slave revolts, for example. And so the slave revolt for him is almost like a methodological test to see whether a political theory is worth anything or not.

So imagine, you know, there are many political theories. There are many political frameworks. The question here is if a school of political theory or a particular approach to politics does not have room to support the revolt of enslaved people, then it's very likely blind to all forms of injustice and oppression and it will not be a useful tool for the liberation of the oppressed more generally.

generally And so I think Harris is asking philosophers who claim to care about justice and freedom to put their money where their mouth is. and there is a quote from Harris that I think is really important in connection to this point. He says, a philosophy that offers moral intuitions, reasoning strategies, motivations, and examples of just moral actions, but falls short of requiring that we have a moral duty to support or engage in slave insurrections is defective.

[00:49:53] Ellie: Okay, so let's think about this a little more because I think part of what's going on here is a blurring of the lines between moral and political philosophy. We talked about earlier in the episode, how legality does not equate to morality and therefore even if treason is illegal, it may be moral. But I think here we're seeing a different angle on that where politics and ethics or morality don't one-to-one map onto one another by any means.

But Harris's claim is that if your ethics doesn't lead you to believe that a slave insurrection, which is a political act, is a good thing, then there is something wrong with your ethics. Right?

[00:50:34] David: Yeah, I like that you're distinguishing the moral and the political. I would even add the term legal as an important thing to keep in mind because when we're dealing with things like slave revolts, they are against the law, but they are not against politics because it refers to the self image and the vision for one's future that one has in relation to an existing political order, and this applies to slave revolts, but it also applies to like the large scale version of that, which is separatist movements.

Right? So think about like the Zapatistas in southern Mexico, or even think about the separatist movement in Quebec. When I used to teach back in the day legal philosophy, one of the things that I really wanted to convey to my students is that when a people, the Quebecois, the Zapatistas want to separate from an existing nation state.

That's not a legal question, right? Because the social contract will never include within it the terms for how some people can break away from it. The act of separation is breaking an existing social contract and starting a new one, and so it happens outside of the sphere of the social contract. And I think we need to think about slave revolts in that way.

They are about more than law, they are about politics, properly understood.

[00:51:52] Ellie: But even from a law perspective, if they're about politics properly understood, which I agree with, it could be that they then, if they are effective, can lead to changes in law, right. Or lead to pardons. And so pardons are extremely important, even if our current president totally abuses them, in part because they can help reshape our understanding of what certain acts were.

And so a slave insurrection that is understood as treason from a particular political vantage point then can eventually come to be seen as actually not treasonous at all. Not to mention like we can also change laws and laws can be redefined in different ways. I wanna bring in here a philosopher Lee McBride, who has built on Harris's work to help establish Insurrectionary ethics as a broader philosophical project.

And one of the fun things that has been happening since we've moved to weekly episodes, as stressful as it is, is that we have brought one of our student assistants, Aaron Morgan, into our research a little bit more, and he introduced us to this Harris McBride material, which is fascinating. And so McBride suggests that there are four core tenets of what he calls an insurrectionary ethics.

First, insurrectionary ethics defies norms and conventions and challenges authority, and that might involve endorsing resistance, you know, such as slave revolt as we discussed. In addition to that, we're not just fighting against the powers that be, we also have to have a kind of positive vision of what we want and who we think is like worth having in the moral community, and so on and so forth.

And so the second tenet of Insurrectionary ethics is that it maintains robust conceptions of personhood and humanity, securing basic dignities and rights for all members. So this actually for McBride is really important. We have to have a strong commitment to humanity in order to offer an insurrectionary ethics.

And that commitment can also provide a kind of motivation for engaging in insurrectionary action, especially when the oppressed are dehumanized. Next up, insurrectionary ethics works toward a broad and universal liberation. So it's not just limited to one particular act of civil disobedience, but it actually wants to advocate and generate solidarity with oppressed groups in a broader sense.

Finally, insurrectionary ethics esteems certain traits that supporters of nonviolence or gradual reform might not. And so some of these traits that McBride identifies are audacity, tenacity, enmity, indignation, and guile, rather than things like civility, restraint, compassion, and humility, because those might be seen as rendering the oppressed more impotent.

And so like, forget about civility and compassion. We should be adopting tenacity and enmity. I don't know how I feel entirely about that one. Not that I'm like pro, I don't know compassion. I don't know if I'm willing to let compassion go. Civility, sure, whatever. Maybe at least in many cases, you know, when we're defining civility in a sort of like respectability politics, pure nonviolence kind of way.

[00:55:06] David: Yeah. So I really like this point about the importance of creating a new set of moral virtues, essentially, that's what this refers to, right? In political theory, that what we want is not virtues that lead us to adapt to the existing order, which is what civility understood through the lens of respectability politics does, right?

Like be civil in the sense of not upsetting anybody. You know, often civility is understood as like mostly like white people speaking in a low tone independently of like sometimes the horrific things that can be said in connection to like race or politics, whatever. So I like that the idea that we do need to value other virtues in individuals like daringness, honorable risk taking, so on and so forth.

The second observation from this insurrectionist ethics, that's taking shape in my mind as I'm thinking about it is that earlier I talked about there being a hierarchy of criminality, right? Like there is the high crime of treason below that you have sedition and so on and so forth. Now, I am thinking that there is a second hierarchy, which is the inverse of that, and that's not the hierarchy of crimes, it's actually the hierarchy of honorable actions against the law and against the state.

And on that hierarchy you would have at the bottom, something like civil disobedience as something that we can do to challenge the established order. Above that you have what Lee McBride is calling insurrection, which is actually taking up action to take power back and affirm the personhood and the right to freedom of individuals who are being targeted.

And at the highest end of that hierarchy, you would have something like full, full-blown revolution aimed at the liberation of an entire people.

[00:56:52] Ellie: And do you think, David, that the insurrection ethics is aseful one. 'cause I will say, you know, I'm not an expert in this subfield of philosophy, so I'm a bit agnostic. But I think when I hear a term like Instructionary ethics or read this description of it, I'm tempted to say, well, no, there's actually a bit of a Frankenstein combination here of ethics and politics because our commitments to certain character traits and personhood, those are ethical.

And then that shapes how we understand the political future that we're fighting for. And political action is taking place on sort of a different register. The register of the kind of public revolution or reform or change or upholding of the status quo, et cetera, et cetera. Whereas our values are maybe happening on ethical register, but it could be that I'm not thinking imaginatively enough.

[00:57:48] David: Well, I wouldn't say that. I think what we are experiencing now is that some of the concepts that are moving in our discussion, like personhood themselves, cross the line between the moral, the legal, and the political. Because of course, personhood is a central concept in moral theory, which is how we assess who is entitled to dignity and care and respect almost in this like Kantian sense.

But it is also a term in legal theory of who is a legal person who is entitled to basic rights, like, you know, bodily autonomy and freedom of movement. And so it's very difficult, I think to maintain a clear separation between the moral, the legal and the political, even though, as I mentioned earlier, I think being able to differentiate those is of the absolute utmost importance.

[00:58:39] Ellie: We hope you enjoyed today's episode. Please consider subscribing to our substack for extended episodes, community chats, and other additional overthink content.

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[00:59:03] Ellie: We'd like to thank our audio editor, Aaron Morgan, our production assistant Bayarmaa Bat-Erdene and Kristen Taylor, and Samuel PK Smith for the original music. And to our listeners, thanks so much for overthinking with us.