by Tom Stilp JD, MBA/MM, LLM, MSC, DBA, September 16, 2025
In the last In The Loop article, we asked whether the crime of treason could only be committed by a citizen? A number of eminent legal scholars, such as Sanford Levinson, say yes, only a citizen may commit treason (Levinson, 1988). Although intuitively sensical, constitutional law professor, Carlton Larson, would disagree (Larson, 2020). Which answer applies will have a broad impact on immigrants and even people visiting the United States.
Recall that treason is the only crime specifically described in the U.S. Constitution (U.S. Const. art III, §3; Larson, 2020). The Constitution copies the English Statute of Treasons enacted by Parliament in 1351 stating that Treason consists of “levying War against the King in his realm” but of course without reference to a king: “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort” (U.S. Const. art III, §3).
According to Professor Larson, the crime of treason is not a betrayal of citizenship, but of allegiance: “Treason is technically not a breach of citizenship – it is a breach of allegiance” (Larson, 2020, p. 83). To be guilty, a person must first owe allegiance to the U.S. If a citizen, the allegiance is permanent. But what if someone is visiting the US as a tourist, or on a visa? As a noncitizen in the US, the allegiance is temporary, and ends when the person physically leaves the US.\
A noncitizen owes allegiance to the US when present in the US because they are under protection of the US and its laws. Thus, the 9/11 terrorists (and we are writing this on 9/11) committed treason as they lived in the US prior to the attacks, and attacked buildings, including the Pentagon which would be akin to levying war against the US.
People in the US have certain rights, but similarly, owe an allegiance to the US government. The law has both a historic cause with present effect, and sometimes, unexpected applications.
References
Larson, C. (2020). On treason: A citizen’s guide to the law. HarperCollins.
Levinson, S. (1988). Constitutional faith. Princeton University Press.
U.S. Constitution, art. III, §3.
