united-states constitutional-law interpretation treason
Does a politician’s promise to &quot;overthrow&quot; the current system and replace it with a “Socialist World” rise to treason?
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<p><strong><a href="https://www.law.cornell.edu/uscode/text/18/2381" rel="nofollow noreferrer">18 USC §2381 Treason.</a></strong><br />
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and <strong>shall be incapable of holding any office under the United States</strong>.</p>
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<p><strong><a href="https://www.law.cornell.edu/uscode/text/18/2383" rel="nofollow noreferrer">18 USC §2383 Rebellion or insurrection.</a></strong><br />
Whoever <strong>incites</strong>, sets on foot, assists, <strong>or engages in any rebellion or insurrection against the authority of the United States</strong> or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and <strong>shall be incapable of holding any office under the United States</strong>.</p>
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<p>In light of Seattle City Councilmember Kshama Sawant's recent speech given on 7/7/20 (see <a href="http://seattlechannel.org/FullCouncil?videoid=x115275" rel="nofollow noreferrer">2:33:00 to 2:34:04</a>)</p>
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<p>&quot;For those watching from outside Seattle, don't let anyone tell you in your fight to tax big business in your city that you're being divisive, because class struggle is what gets the goods. The private, for profit housing market has utterly failed working people. Not just here and now, but everywhere and always. Because capitalism is completely incapable of meeting the most basic needs of working people.<br />
Internationally, the working class needs to take the top 500 corporations into democratic public ownership, run by workers, in the interest of human need and the environment, not billionaire greed.<br />
I have a message for Jeff Bezos and his class. If you attempt again to overturn the Amazon tax, working people will go all out in the thousands to defeat you.<br />
And we will not stop there. Because you see, we are fighting for far more than this tax. We are preparing the ground for a different kind of society. And if you, Jeff Bezos, want to drive that process forward, by lashing out against us, in our modest demands, then so be it. Because we are coming for you and your rotten system. We are coming to dismantle this deeply oppressive, racist, sexist, violent, utterly bankrupt system of capitalism. This police state. We can not, and will not, stop until we overthrow it and replace it with a world based instead on solidarity, genuine democracy, and equality. A socialist world. Thank you.</p>
<p><em>(Transcribed from given link)</em></p>
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<p>Do her words, especially &quot;we cannot or will not stop&quot; until we &quot;dismantle,&quot; &quot;overthrow,&quot; and &quot;replace&quot; this &quot;police state&quot; with a &quot;Socialist World&quot; rise to the level of violating 18 USC §2381 and/or 18 USC §2383?</p>

<p><strong>TL; DNR:</strong> No. Charging the Councilwoman under §2383 for making a speech would violate the First Amendment, and &quot;levying war&quot; in the §2381 means actually fighting, not conspiring to fight.</p>
<p><strong>18 USC §2383</strong> Since §2383 is a statute, it must conform to the Constitution. To charge Sawant for what she said in a speech would violate the 1st Amendment, which says, &quot;Congress shall make no law...abridging the freedom of speech...&quot;</p>
<p>Even without the First Amendment problems, §2383 would not apply. The words &quot;rebellion and insurrection&quot; in  §2383 are <a href="https://criminal.findlaw.com/criminal-charges/rebellion-or-insurrection.html#:%7E:text=Rebellion%20and%20insurrection%20refer%20specifically,the%20authority%20of%20the%20state." rel="noreferrer">usually read</a> to mean real violence, not vague words that may or may not involve violence. Not even Cliven Bundy, the Nevada rancher who has had several armed standoffs with the government, was charged under §2383.</p>
<p><strong>18 USC §2381</strong> Since §2381 is based on Art. 3, §3, the Treason Clause of the Constitution, the First Amendment does not apply to it. Following the Treason Clause, §2381 has two prongs. To be guilty of treason, one must either:</p>
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<p>a) Levy war against the United States; or</p>
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<p>b) Adhere to its enemies.</p>
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<p>&quot;Enemies&quot; has been interpreted to mean enemies <em>in a real war</em>, so the second prong does not apply.</p>
<p>Since Sawant is not actually levying war against the United States, §2381 can only apply to her if it covers a <em>conspiracy</em> to levy war against the United States. The Supreme Court decided it did not in 1807, in <a href="https://supreme.justia.com/cases/federal/us/8/75/" rel="noreferrer"><em>Ex Parte Bollman</em></a>. Bollman was charged with <a href="https://en.wikipedia.org/wiki/Burr_conspiracy" rel="noreferrer">conspiring</a> with Aaron Burr to carve a new country out of the US. The Court ordered Bollman released. In his opinion, John Marshall explained why:</p>
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<p>However flagitious may be the crime of conspiring to subvert by force the government of our country, <strong>such conspiracy is not treason.</strong> <em>To conspire to levy war, and actually to levy war, are distinct offenses.</em></p>
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<p>Marshall’s narrow reading of the Treason Clause was consistent with the views of the Founders. In Federalist 43, James Madison explained that in the past, “violent factions” had often used “new-fangled and artificial&quot; definitions of treason to “wreck their alternate malignity on each other…” To keep from repeating this sorry history, the Constitution “opposed a barrier to this peculiar danger,” by defining what constituted treason and specifying how it was to be proved.</p>

<p>No. Setting aside hyperbole, it is perfectly legal to &quot;overthrow&quot; the US government (and arguably even the Constitution), provided it is done in a legal manner. Overthrowing the government or even the Constitution need not use violence. Every four-year election cycle could theoretically overthrow the whole government, and every Constitutional Amendment partially &quot;overthrows&quot; the prior state of the Constitution.</p>
<p>For example, there is are perfectly legal manners of &quot;overthrowing&quot; an incumbent elected official, such as elections, impeachments, convictions (for those who do not enjoy immunity while in office), and recalls. Doing so to all elected members of the government simultaneously would be perfectly legal, although difficult to achieve.</p>
<p>Likewise, there is no limit to the scope of a constitutional amendment; thus a constitutional amendment can &quot;overthrow&quot; the entire constitution, in the same way that the 3/5ths clause was &quot;overthrown&quot; by the 13th amendment, or how the 18th amendment &quot;overthrew&quot; the limitations of federal regulation of intrastate commerce, production and sale, with regards to alcohol, only to be overthrown in turn by the 21st amendment.</p>
