January 14, 2000 QUESTION: Can a state criminalize treason?

CONCLUSION: A state may not punish treason against the United States, but it may punish treasonous acts against it's own sovereignty. ANALYSIS: I. Treason against the states own sovereignty distinguished. Treason is a breach of allegiance to one's government Black's Law Dictionary 6th Ed. 1991. Treason is thus an offense against a particular sovereign to whom one owes allegiance. It logically follows that one who owes allegiance to two sovereigns may breach his allegiance to one without necessarily injuring the other, although a particular act may constitute a breach of allegiance, and thus treason, against both. Under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause. Under this system of dual sovereignty... Tafflin v. Levitt ,493 U.S. 455, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990). As each of the several states is a sovereign entity, treason against a particular state is a cognizable offense. Every court to address the issue has recognized that one may breach his allegiance to a state and thus be punishable, by it, for treason. See generally: People v. Lynch, 11 Johns 549 (Ny. 1814); Ex Parte Quarrier, 2 W. Va. 569 (Wv. 1866); State v. Raley 136 N.E.2d 295 (Oh.Ct.App. 1954), aff'd 133 N.E.2d 104 (Oh. 1956), vacated 354 U.S. 929 (1957), on remand 147 N.E.2d 847 (Oh. 1959), aff'd in part, rev'd in part on other grounds 360 U.S. 423 (1959); Cohen v. Wright, 22 Cal. 293 (Cal. 1863); In Re Charge to the Grand Jury, 1 Story 569, 30 F.Cas. 1046 (C.C.R.I. 1842). While the courts all agree with Mr. Justice Story, that to constitute the crime [of treason against the United States], there must be a levying of war against the United States in their sovereign character, and not merely a levying of war exclusively against the sovereignty of a particular state Charge to the Grand Jury, supra, the courts have differed over other aspects of the relationship between treason against the United States, and treason against a particular state. One view holds that Sedition and treason against the United States as a sovereign entity are necessarily offenses also against every sovereign state of the federal Union Raley, supra; see also Cohen, supra. However, the view of the majority of courts faced squarely with the question, holds that to constitute treason against the state, it is not enough to wage war against the United States generally or collectively, or as component parts of the nation union, but it must be done directly against the state... Quarrier, supra; see also Lynch, supra. Lynch is the case most directly on point. The defendants there were charged with having committed treason against the state of New York, by supplying goods to British warships during the War of 1812. The court noted that while the acts charged did constitute treason against the United States, they were not a breach of the defendant's allegiance to the government of New York, as the state of New York was not, in its aggregate and political capacity, as an independent government, at war with Great Britain. The other case adhering to this view, Quarrier, concerned an attorney, who had been denied a license to practice law, on the grounds that his participation in the Civil War as a confederate soldier constituted treason against the state of West Virginia, a felony for which a law license could properly be denied. The court granted his application, holding that to constitute treason against the state...it must be done directly against the State, in particular, by invading her territory, attacking her citizens, subverting her

government and laws, or attempting her destruction by force.... (After the decision, the West Virginia Legislature promptly passed a Test Act, specifically precluding ex-confederates from practicing law under any circumstances). The Quarrier court also made the interesting suggestion that treason against a state may only be committed by a citizen of that state, as no others hold any allegiance to it that they may breach. By contrast, the cases adhering to the other view address the issue only tangentially. Cohen does so only in dictum, and Raley was merely concerned with the propriety of a state investigative panel charged with conducting hearings on the subject of un-american activities. Moreover, Raley was affirmed and reversed a number of times by higher courts, none of whom addressed this issue. The precedential effect of the lower court decision is limited at best. More importantly, the Raley view is logically flawed. It would subordinate the state's independent, sovereign interests, and the independent allegiance owed by it's citizens, yet exercise state sovereignty to punish the offender. II. State Punishment of treason against the United States. Treason against the United States shall consist only of levying war against them, or in adhering to her enemies, giving them aid and comfort U.S. Const. Art. III 3 cl. 1. While many states have statutes punishing treason against the state, only Louisiana purports to punish treason against the United States (See La.Rev.Stat. 14:113). Even if there were a general effort by the states to independently punish treason against the United States, such an effort would be unsuccessful for a number of reasons. Mr. Justice Brandeis noted (albeit in dissent and in dictum) that the states may not punish treason against the United States Gilbert v. Minnesota, 254 U.S. 325, 41 S.Ct. 125, 65 L.Ed. 287 (1920) Brandeis, J. dissenting. As support for this assertion he cited Lynch and Quarrier. Lynch did not address the issue directly, but the Quarrier court stated that treason is very truly and justly regarded as the highest crime known to the law, but 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 [emphasis added]. There may also be a constitutional impediment to state punishment of treason against the United States. U.S. Const. Art. III 3 cl. 2 provides that The Congress shall have the Power to declare the Punishment of Treason.... The basic canon of interpretation, expressio unis est exclusio alterius, suggests that the specific grant to Congress of the power to punish treason denies that power to the states. Even if there were no conceptual or constitutional barrier to a state criminalizing treason against the United States, any attempt to do so is preempted by federal law, which occupies the field. In Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640 (1956), the Supreme Court held that federal law, specifically the Smith Act, 18 U.S.C. 2385, preempted a Pennsylvania statute criminalizing sedition (an offense related to, but distinct from treason). After noting that there was no express constitutional barrier to the state legislation in that case, the court utilized three tests to determine that the state law was preempted by federal legislation. First, '(t)he scheme of federal regulation (is) so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it. Second, the federal statutes 'touch a field in which the federal interest is so dominant that the federal system (must) be assumed to preclude enforcement of state laws on the same subject. Third, enforcement of state sedition acts presents a serious danger of conflict with the administration of the federal program. Applying these factors here leads to the conclusion that any state law attempting to punish treason against the United States would be preempted by federal law. 18 U.S.C. 2381 defines the federal offense of treason in the same terms as the United States Constitution, and sets forth the punishment. While the definition of this offense, and the determination of the punishment, are significantly less complex than the anti-sedition legislation at issue in Nelson, this is due to the fact that treason, unlike sedition, is a limited offense; it can not be given anything other than the definition set forth in the Constitution. As Congress has defined the offense to the limit of their constitutional ability, the logical conclusion is that there is no room

left for the states to supplement it. Moreover, in Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090 (1959) the court noted that Nelson proscribed...a race between federal and state prosecutors to the courthouse door. As a state would, like Congress, be constitutionally unable to define any other conduct as treason, or conversely to define that particular conduct as anything else, all any state could possibly do would be to define treason in exactly the same terms as the federal statute (as does Louisiana), resulting in the very race to the courthouse door proscribed by Nelson. Nelson's reasoning in applying the second test, dominance of the federal interest, is equally applicable here. Nelson noted the efforts by Congress to strengthen internal and external defenses, and to preserve the sovereignty of the United States. The federal government's dominance of interest in preventing treason is at least as great as in the case of sedition. Third, sporadic local prosecutions for treason are likely to hamper enforcement of the federal law, and conflict with it's administration. The court's comment on sedition prosecutions in Nelson, is no less true of treason prosecution. This task must be conducted in a comprehensive manner on a national basis, and all information must be carefully sifted out and correlated in order to avoid confusion and irresponsibility. As a result of the above, states are left without the ability to punish treason against the United States. Absent a direct breach of allegiance to the state, acts treasonous against the United States may only be punished by Congress, even though they do pose a collateral threat to the security of the several states.