I think that’s the question of the moment: Does this still work? Can an empire like ours with military presence in over 170 countries around the globe, with trading relationships…and security arrangements in every continent, can it still be managed by the same principles that were set down 230-plus years ago?
Because genuflection to the Constitution is standard fare in electoral politics, this was taken as iconoclasm; but among eminent liberal jurists, who are eager to innovate in this area, O’Rourke’s sentiments are nothing new.
O’Rourke is quite right that the U.S. Constitution is insufficient to encompass America’s military and corporate entanglements around the globe. Where we disagree is in our preferences; I would take the Constitution over global corporatism. I also agree with eminent jurists like Cass Sunstein and Ruth Bader Ginsburg that the Constitution needs reform, but unlike the sweeping reform those jurists have called for, I would reform it in a single area: the law of treason.
Article III, §3 of the Constitution defines treason as “levying War against [the United States], or… adhering to their Enemies, giving them Aid and Comfort.” The landmark modern case is Cramer v. United States, which overturned a German immigrant’s treason conviction:
A citizen may favor the enemy and harbor sympathies disloyal to the United States, but so long as he commits no act of aid and comfort to the enemy there is no treason. Conversely, a citizen may take actions which aid and comfort the enemy, but if there is no adherence to the enemy, or there is no intent to betray, there is no treason.
In delineating what needs to be proved to obtain a treason conviction, the case says a bit more about what treason is not than what it is. In particular—unlike “aid and comfort”—the term enemy is not defined at all. This is what interests me, from a 21st century perspective. In 1945, the meaning of this term was taken by our Supreme Court as being self-evident. Today that is not the case. The U.S. transacts trillions of dollars in annual business with its worst adversaries. It hides behind risible theories of international law when it assassinates an enemy general, which it is careful to do on neutral territory. It has the world’s largest military budget, and no formal state enemies. It has troops in hundreds of countries, yet fights no official wars. Not even John Walker Lindh was accused of treason. Not even defection and leaking of official secrets to Iran by a U.S. Air Force officer was charged as treason. When the U.S. has no formal enemies, it is questionable whether the Constitution’s definition of treason has any practical application. That doesn’t mean there is no treason; on the contrary. But if we are to prosecute it, the term enemy must be defined.
Obviously, elites conspire with one another to violate the law and harm the citizenry. But a clever showing that they thought they were acting in the interest of the country would cast reasonable doubt on the intent requirement of a treason charge. And charging those crimes as treason runs the risk of defining mere lawbreaking as treason, unless the term enemy is given a clear legal definition.
Would a conspiracy involving foreign elites (including oligarchs, royalty, and heads of state) to surreptitiously take over the United States’ power centers, convert its resources, extensively invade its citizens’ privacy in bald-faced contravention of the 4th Amendment, and fundamentally alter its whole legal system in a manner not prescribed by the Constitution, amount to a legally cognizable enemy?
The question is well worth considering.