Gov. Jennifer Granholm of Michigan recently called for state Rep. Rick Baxter to be removed from office for a July 7, 2005 Wall Street Journal column he co-authored with Hillsdale professor Gary Wolfram. The commentary cited various publicly available measures of Michigan’s economic activity, while criticizing the governor’s current policy proposals, and it led her to assert, according to the July 11 Detroit News, that writing the column for a national publication was "treasonous to the state of Michigan."
The Journal’s editorial page has since fired back at the governor, and Detroit News columnist George Weeks has written a follow-up to his original article on her remarks. Given the amount of ink spilled on the story, it is worth reviewing the meaning of "treason" as defined in the U.S. and Michigan constitutions.
Before proceeding, however, I should first confess that Gary Wolfram and I are both adjunct scholars of the Mackinac Center for Public Policy, and I have often agreed with his writings. We have never met, however, and I hasten to add that I am not now, nor have I ever been, in direct contact with him.
Treason is defined in Article 1, Section 22 of the Michigan Constitution as follows: "Treason against the State shall consist only in levying war against it or adhering to its enemies, giving them aid and comfort." Since no one has ever been successfully prosecuted for treason under the current Michigan Constitution, Michigan courts have given the governor little guidance regarding the legal meaning of the terms in the treason clause.
Perhaps Gov. Granholm envisions a broad definition of "levying war" that includes a "trade war" with other states, claiming that Rep. Baxter’s "treason" is therefore giving aid and comfort to other states’ economies. Still, a review of cases brought by Gov. Granholm in her previous position as attorney general of the state of Michigan indicates that she did not enforce the "treason" clause of the Michigan Constitution during her four years as the state’s chief prosecutor, even though there were many critics of Michigan’s economy at that time. Many of these critics were also outspoken opponents of the economic policies of her predecessor, Gov. John Engler.
Despite the lack of precedent at the state level, there have been at least 40 prosecutions for treason under the U.S. Constitution, and the federal courts’ interpretation of "treason" gives us some basis for understanding the proper legal definition of the term. Article 3, Section 3 of the U.S. Constitution states, "Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." This is almost identical to the language in the Michigan Constitution, so state courts would probably apply the federal standards to any prosecution for treason under Michigan law.
Federal courts in practice have interpreted the treason clause strictly, so that few prosecutions outside of wartime settings have been successful. The most famous peacetime treason trial was of Vice President Aaron Burr in 1807, and it resulted in his acquittal. Politically motivated attempts to convict opponents of the Fugitive Slave Law of 1850 were also unsuccessful.
Treason is the only crime defined in the U.S. Constitution, and for good reason. The English Statute of Treasons, which was in effect in the 13 colonies prior to the Declaration of Independence, had evolved into an instrument for suppressing dissent against government policy and for punishing criticism of the king or queen. The U.S. Supreme Court discussed this history in Cramer v. United States (1945). In that decision, the Supreme Court found that historical materials from the time the Constitution was written "show two kinds of dangers against which the framers were concerned to guard the treason offense: (1) perversion by established authority to repress peaceful political opposition; and (2) conviction of the innocent as a result of perjury, passion, or inadequate evidence." Indeed, English courts later interpreted the Statute of Treasons as requiring not just words of opposition, but an act of rebellion.
Perhaps it is not too seditious to suggest that this modern understanding of treason is the right one, and that we can take comfort in knowing that the pre-Revolutionary War Statute of Treasons no longer applies in America.
Theodore Bolema, an attorney and faculty member at the Central Michigan University College of Business Administration, is an adjunct scholar of the Mackinac Center for Public Policy, a research and educational institute headquartered in Midland, Mich. Permission to reprint in whole or in part is hereby granted, provided that the author and the Center are properly cited.