Treason…Sedition…Insurrection.
I bet you haven’t heard those three words much. Not.
To be sure, they are most certainly slung around like the proverbial corned beef hash special at your favorite deli. Dropped like little explosive seeds from the lips of newscasters and pundits. I cringe at the careless but also calculated use of terminology, particularly as these words are often used synonymously when, in fact, they interrelate.
To complicate the discussion further, what is the difference between being a seditionist, traitor, or insurrectionist as opposed to being concerned American citizens who, bolstered by the Declaration of Independence, and using their First Amendment right, seek to correct the overreaching sins of tyranny in order to preserve the People’s unalienable rights of life, liberty, and the pursuit of happiness?
In other words, the People do not seek to overthrow the actual American government in toto, but rather seek to remove or correct individuals who themselves may be committing these acts — defaulting on their oath of office — in order to preserve the Constitution and the government that was established through it? This is the deeper question and the fine line we walk in this discussion.
Untangling the Terminology
So what about these words? How serious are they? How relevant, if at all, are they today? It is kind of like the chicken and the egg, which comes first? I’d like to springboard off an excellent article by Mary Gormandy White where she very plainly and clearly explains all three terms.
Sedition
The “conspiring with others to incite rebellion against lawful authority…occurs when two or more persons conspire to commit certain actions against the United States (U.S.) government…whether or not the actions are actually attempted or carried out” (White). What constitutes acts of sedition ranges from looking to take down or overthrow the government, to actually warring against or opposing the government through force, to even occupying or seizing federal property by force. In addition, anyone obstructing a federal law from being carried out constitutes a seditious act. The punishment is a fine or imprisonment for no more than 20 years or both as laid out in 18 U.S. Code § 2384 - Seditious Conspiracy.
The first part of this is particularly sticky, and maybe a little concerning, for the average citizen, namely, “whether or not the actions are actually attempted or carried out.” Often, people discuss displeasure and what they would “like to do” but are never serious about actually doing the thing. Still, there is the right to peaceably assemble and be heard (First Amendment). And while this description seems to lean toward actual physical force, a coming to blows reminiscent of the French Revolution, the American Revolution, or the Civil War, in this day and age, ours is more of an Information (Info) War, barraging people with the 24/7 news cycle on multiple channels and apps.
This raises some preliminary questions. What about:
Deciding to oppose governmental actions through the “force” of the People’s power to vote?
Flooding phone lines and voicemail/email boxes of elected officials to make clear the official is not representing the will of the People s/he took an oath to represent and to make clear to that official what the will of the People is?
Deciding to occupy a federal property (often occupied by tourists) to ask questions or express displeasure when elected representatives cannot be reached or refuse to meet with constituents?
Deciding to occupy a federal property (often occupied by tourists) to provide a visual representation of the will of the People when phone calls/messages, emails, etc., go unacknowledged by those representing the People?
What’s interesting is that this concept of cancelling opposing opinion is not as brand new as one might think. Sure, it has a catchy name — “cancel culture” — but first uses, and blatant encroachment on the First Amendment, go back to the Revolutionary War Era (pre-Constitution), the late 18th century with the Sedition Act of 1798, the Civil War, and WWI.
The reason? More often than not, to get the citizenry on board with involving the United States in a war.
Cancel Cultures of Yore — A Couple Detailed Examples
The Sedition Act of 1798
This act was a collection of Alien and Sedition Acts for the purpose of dealing with the Quasi-War with France. According to Peter McNamara, “The clash over the Sedition Act yielded the first sustained debate over the meaning of the First Amendment” (Sedition Act of 1798). Three parties were involved in the debates. The Democrat-Republicans felt they were the targets of the acts because of the “twenty-five arrests, fifteen indictments, and ten convictions…Targets of the act tended to be the editors of Democratic-Republican newspapers who criticized the Federalist administration of President John Adams.”
The Federalists came from the perspective that any perceived military or ideological threat could bring down the new American government before it had a chance to take hold. They hearkened back to their “roots” of English common law of which seditious libel was a part. As McNamara explains, “To them, a seditious libel law was part of English common law, constitutional under the necessary and proper clause, and an obvious instrument of defense.” This idea was borne out of the firm belief by “[l]eading Federalists…that it was impossible to attack members of the government without attacking the very foundation of government itself.” This last statement is critically important and very telling, especially to understanding what is going on in contemporary America now. It is only true insofar as the members of the government uphold the Constitution and do the will of the People. But what if this is used as an excuse to insulate elected officials from being too keenly criticized by the People for not doing their job, which is to represent their will and to uphold the Constitution?
The struggle is real between government officials who believe that to attack them is to attack the actual institution of the United States government. One could submit that if you hold up the current representation of the federal government (over the past few decades or so even) side by side with the U.S. Constitution, they are not at all the same thing. One is the blueprint for how government should be organized and conducted with the People firmly in the driver’s seat. The other is a colossal engine of bureaucracy driven by both numerous agencies run by unelected officials and by representatives who turn a blind eye and a deaf ear to those they were elected to represent.
The third group was the Republicans who took a very literal and strict stance regarding the freedom of speech and press. They “countered that the Constitution expressly delegates no power to regulate speech or the press and that such powers are in no sense necessary and proper. The First Amendment, they argued, specifically prohibits the making of any law whatsoever regarding speech or the press.” They pointed out that unlike English common law, which was tethered to the government system of hierarchy, the new American elective system “necessarily required continuous examination of public officials and policies. Madison’s argument called into question not just the constitutionality of a national seditious libel law but the need for such a law at any level of government in an elective system” (McNamara). The Republicans recognized that to limit free speech (and press) was to shut down debate and discourse over ideas for which there were strong opposing points of view. What is interesting to observe today is that the position (and actions) of the “elites” more truly represents the hierarchical system of English common law government rather than the elective system of the Constitution.
The Espionage Act of 1917 and the Sedition Act of 1918
Fighting a war in Europe required a clear message and a cooperative public. The federal government established the Committee on Public Information (CPI), which deployed propaganda to convince Americans of World War I’s legitimacy and the importance of civic contributions. Congress also passed the Espionage (1917) and Sedition (1918) Acts to enforce loyalty and silence dissent. Postmaster General Albert Burleson used the Espionage Act to ban from the mail those magazines and newspapers he perceived as promoting discord against the government and undermining national unity. Government policies and wartime nationalism encouraged citizens to police one another’s loyalty and patriotism. (Surveillance and Censorship).
When Congress passed the Espionage Act in June of 1917, the act “gave postal officials the authority to ban newspapers and magazines from the mails and threatened individuals convicted of obstructing the draft with $10,000 fines and 20 years in jail.” As for the Sedition Act of 1918, the act “was an amended piece of legislation that strengthened the terms of the Espionage Act of 1917. The Act targeted those individuals who interfered with the draft and who publicly criticized the government.”
Any of this sound familiar in our contemporary climate?
Use propaganda to convince citizens to a certain way of thinking, linking their compliance to the “feel good” notion of “doing their part” as good citizens — blanketing social media, airwaves, television ads, ad nauseum.
Enforce loyalty and silence dissent.
Ban items perceived (by whom and under what characteristics?) as promoting discord against the government and undermining national unity.
Encourage citizens to police their neighbors, family, friends (virtue signaling/shaming) questioning their patriotism and loyalty under the “For the Greater Good” banner.
And while treason can be as minimal as one person, sedition involves conspiracy, collusion with others — at minimum two persons. Getting back to Crane, if we use the Framers’ dovetail of sedition with the First Amendment, we come round to the question of whether discussing what may be deemed by some as “seditious” acts (without following through) is, in fact, sedition or mere hypothetical discourse protected by free speech? Is it sedition to raise questions about the Executive’s actions as the leader of the United States if the People see evidence of or believe that the Constitution and, therefore, their rights are being violated? Looking at the 1798 arguments, particularly those of the Republican defense, one would conclude that it most certainly is not. On the other hand, looking at the Presidency during WWI and how Congress acted, one would conclude that it might be.
And this is the problem. The magnifying glass for sedition and treason appears to be focused more directly on the People by those in power when quite honestly, the action is a two-way street. Freedom of speech is for all citizens and shall not be infringed. If a specific agenda is the goal but the Constitution (specifically the First Amendment here) stands in the way (as it was designed to do to protect the People), then what recourse do the People have when power-hungry members of a governing body pass acts such as those mentioned above?
Treason
More narrowly focused, but no less serious as it is a capital punishment offense next to murder (death sentence), treason “occurs when anyone who owes allegiance to the United States of America, such as a citizen or resident, commits certain acts against the U.S. government” (White). This particular concept was taken so seriously by the Founding Fathers that it is the sole crime actually embedded in the Judiciary section of the Constitution, limited to two types of conduct:
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 (U. S. Constitution: Article III, Section 3).
In his article, “Does the Treason Clause Still Matter? (Yes.),” Paul T. Crane examines how infrequently in United States history treason charges, indictments, prosecutions, and convictions have occurred. Treason is very difficult to prove for good reason, designed to prevent it from being used as a purely political weapon though not without hefty efforts to try (see Christina L. Boyd’s article for the successes of Sedition on this front). Crane admonishes that the underlying principles of the treason clause should “serve as important reminders about national security cases more generally.” Tying back to original intent by the Founding Fathers, Crane explains:
The Framers correctly believed there was a crucial distinction between traitorous actions and treasonous thought. Departing from English common law, which at the time recognized constructive treason, the Constitution required some sort of action before a person could be convicted of treason. That line between conduct and conscience dovetails with First Amendment values, and is one that should be respected beyond the narrow confines of treason. In addition, the Framers recognized that national security offenses are more likely to inflame public passions, and therefore deserve heightened procedural protections. This insight also extends beyond treason cases, and is one Congress, federal courts, and the public would do well to remember.
Coupled with sedition, this is an important distinction, especially in this age of cancel culture where certain viewpoints are not only shouted down as in the past, but virtually obliterated from social media or slapped with a “fact checking” or “disinformation” label of some sort, replaced by the “preferred” narrative. Treason is an act, not necessarily purely a state of mind. The act must be performed with intent that is observable (as in the two witnesses requirement) or by the traitor’s own words through confession in an open court. Larry Holzwarth provides a concise accounting of 20 Acts of Treason in American History, which underscore the rarity of getting a conviction.
Insurrection
Insurrection could be an entire article on its own — defined as “an organized effort by a group of citizens against their government [that] … usually involves force. Insurrection can be committed against any lawful authority” (White). Punishment under 18 U.S. Code § 2383 - Rebellion or Insurrection is laid out as follows: “Whoever incites, sets foot on, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid and comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” This is a pretty loaded statement.
In the current political climate, we are living in the midst of a real-time example that started with January 6, 2021. I am not going to get into the quagmire of who’s right or wrong here because the purpose is to get people thinking, not to convince who’s right. But given the history and explanation of sedition and treason done here so far, keep in mind the day’s events and what we have seen since that day including the current hearings. Do the research. Trust but verify, and as much as possible, go directly to the primary sources (e.g., the person who actually said it versus someone describing what the person said). Keeping in mind the language above of the code regarding rebellion or insurrection, as you encounter contemporary examples you come across, consider whether or not they might fulfill the criteria of the code.
For some historical perspective, the following depicts just a taste of the six most famous insurrections in U.S. history. More details (about 2 paragraphs each) can be found here and make for a short but very interesting read:
Wilmington (North Carolina) Insurrection of 1898 — Considered the only successful coup d'état in American history, the uprising was “a calculated rebellion by a cabal of white business leaders and Democratic politicians intent on dissolving the city’s bi-racial, majority-Republican government. Once in power, the conspirators banished prominent black leaders and their white allies from the city and joined with other North Carolina Democrats in instituting a wave of Jim Crow laws suppressing black voting rights.”
New York City (New York) Draft Riots of 1863 — Location of the “largest popular insurrections in American history” taking place 10 days after the Union’s victory at Gettysburg. The main issue was the unfairness of the federal draft lottery under the conscription law “which excluded blacks and allowed wealthy men to buy their way out of serving for $300 [seen] as a blatant civil rights violation. The riots became brutally violent, lasting four days, and necessitating the deployment of 4,000 federal troops.
The 1921 Battle of Blair Mountain (West Virginia) — Considered “the largest and bloodiest labor dispute in American history,” railing against a coal region that “operated under the thumb of powerful mining interests who employed thuggish private detectives to harass any workers who tried to unionize.” Upwards of 15,000 miners, largely WWI vets, “armed themselves and set off to confront the coal tycoons and organize their fellow workers” (approximately 3,000 defenders) in response to the assassination by company agents of pro-union lawman Sid Hatfield. The miners’ subsequent defeat ended with approximately 1,000 charged with conspiracy, murder, and treason among others.
Richmond (Virginia) Bread Riots of 1863 — This one rose out of food shortages in the Confederacy which compelled “a group of armed, half-starved women [to descend] on the state Capitol and [demand] to speak to Governor John Letcher.” Letcher made the mistake of dismissing their concerns, at which point the women “marched down one of the city’s major thoroughfares, commandeered several supply carts and began violently ransacking warehouses for food.”
1946 Battle of Athens (Tennessee) — Carried out by a group of “veterans and disgruntled citizens [in] … the small farming community” that spent the better part of that decade “dominated by a crooked political machine led by sheriff and legislator Paul Cantrell, who was known to rig elections in his favor through ballot stuffing and voter intimidation.” Hundreds of WWII veterans, newly home from war, had little patience for this. “After they experienced repeated harassment by law enforcement, the ex-GIs organized their own political party in the hopes of ousting Cantrell and his cronies once and for all.” However, it proved to take more muscle than just doing their civic duty as “the ‘battle’ unfolded during a tense Election Day on August 1, 1946” culminating in both restructuring the local government as well as getting rid of most of the corruption.
Shays’ Rebellion (Massachusetts) of 1786 — Came about as a result of farmers crushed by over taxation to the point where they were losing their property to debt collectors. Mass demonstration by citizens included a march to the county courts with the goal to prevent them from convening so that property seizures would be slowed. Since this was barely 10 years out from the American revolution, the governor feared another revolution was in the offing, so he mustered a militia of 1,200 to take care of it. “[I]t would not be the last time that economic troubles provoked a revolt.”
There is a difference between gathering to represent just how many people feel a certain way and coming together en masse to do harm and destruction, no question. As evidenced by history, “accordingly all Experience hath shewn, that Mankind are more disposed to suffer, while Evils are sufferable, than to right themselves by abolishing the Forms to which they are accustomed” (The Declaration of Independence). However, men (and women) can be pushed only so far “when a log train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their Duty, to throw off such Government, and to provide new Guards for their future security” (The Declaration of Independence). In the Declaration, it was the entire structure of a government that was the focus for change, the British monarchy over the American colonies. In today’s era, however, the principle is still the same as to a citizen’s right and duty, but the “Government” that needs to be thrown off is not the actual structure, rather the agents of bureaucracy undermining that structure.
As defined, an insurrection goes against a government (federal, or in these cases, state), but again, is the gathering intent on overthrowing the full fundamental structure of the government, or is the focus on those entrusted to uphold and work within that structure, those that do not perform the will of the People to uphold that structure? Are the People at odds with the institution itself (inanimate object) or the leviathan of elected officials (sentient beings with minds of their own and a will to power)? If it is the latter, then do their protests constitute insurrection (or sedition or treason)? In other words, do the People seek to cut out the spots of cancer that weaken the Constitutional Republic rather than to remove the full structure of the Republic whether those spots of cancer are people or policies or laws?
Some Final Thoughts
We have to be careful. These words (sedition, treason, insurrection) are globally applicable even if the statutes attached to them are specific to our country. The Founding Fathers, in those early years, agonized over what they were moving toward, which would have been seen as seditious, treasonous acts that ultimately led to what Britain saw as an insurrection — the full blown American Revolution. Death for “conspiring” and carrying out their plans to cast off the chains of Britain’s monarchical tyranny in exchange for the freedom of self-governance was a certainty for them if they failed. As far as application, do these terms apply only to the People, as Average Joe citizens, or can a high official such as any member of Congress, the Supreme Court, and even the President be considered?
Does going against these agents of government automatically mean the People seek to destroy the Constitutional framework?
I would say, No.
Helpful Resources & More Information
What Is Sedition? Comparing It to Treason & Insurrection (Mary Gormandy White)
Common Interpretation: Treason Clause (Paul T. Crane & Deborah Pearlstein)
20 Acts of Treason in American History (Larry Holzwarth)
The American’s Creed (William Tyler Page)
Matters of Debate: Does the Treason Clause Still Matter? (Yes.) — (Paul T. Crane)
Sedition Act of 1798 (Peter McNamara)
Sedition Act of 1918 (Christina L. Boyd)
Free Speech During Wartime (David L. Hudson Jr.)
Committee on Public Information (Caryn E. Neumann)
6 Violent Uprisings in the United States (Evan Andrews)