Anaya Nolan
Subversion refers to the contradiction or reversal of the values and principles of an established system in an attempt to sabotage the social order and its structures of power, authority, tradition, hierarchy, and social norms. While there is no crime defined as subversion in British constitutional law, it is a crime in Italy and China. In the US, the Constitution identifies what constitutes treason against the United States and limits it to two types of conduct: levying war against the country or adhering to their enemies, giving them aid and comfort. The Constitution also narrowed the scope of punishment for treason compared to English common law, and it is the only crime expressly defined by the Constitution. While subversion and treason are distinct, the line between conduct and conscience is crucial, and understanding the intent of those taking action is essential in defining subversion.
| Characteristics | Values |
|---|---|
| Definition | Subversion refers to a process by which the values and principles of a system in place are contradicted or reversed in an attempt to sabotage the established social order and its structures of power, authority, tradition, hierarchy, and social norms. |
| Examples | Organizing or helping to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government by force or violence. |
| Punishment | Imprisonment for not more than 20 years, fines, and ineligibility for employment by the US or any department or agency for 5 years. |
| Specifics | The Constitution identifies what constitutes treason against the United States and limits the offense of treason to only two types of conduct: "levying war" against the United States or "adhering to [its] enemies, giving them aid and comfort." |
| Historical Context | The Framers of the US Constitution intended to define treason narrowly after their experience with English law, which expanded the definition to cover many actions against the Crown. |
| Dual Citizens | In some situations, a dual citizen may be compelled to provide aid and comfort to an enemy of the US. If they do so knowingly and voluntarily, that could be treason. |
| Prosecution | There have not been many treason prosecutions in American history—only one person has been indicted for treason since 1954. |
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What You'll Learn
Treason in the US Constitution
Treason is the only crime that is specifically defined in the US Constitution. The Treason Clause, or Article III, Section 3, states that treason against the United States shall consist only of levying or waging war against them, or adhering to their enemies, giving them aid and comfort. This means that treason is limited to two types of conduct:
- "Levying war" against the United States
- "Adhering to [the] enemies [of the United States], giving them aid and comfort"
The Constitution also narrowed the scope of punishment for treason compared to English common law. While Congress has the power to establish penalties for committing treason, they may not "work corruption of blood, or forfeiture except during the life of the person" convicted. This means that any punishment, such as disgrace or fines, ends with the death of the traitor and does not extend beyond them, unlike English common law, which prohibited family members from inheriting property from a person convicted of treason.
The Framers of the Constitution believed there was a crucial distinction between traitorous actions and treasonous thoughts, and so the Constitution requires some sort of action before a person can be convicted of treason. This idea of a line between conduct and conscience aligns with First Amendment values. The Treason Clause was included not only to underscore the seriousness of betraying one's nation but also to guard against the historical use of treason prosecutions by repressive governments to silence legitimate political opposition.
To be convicted of treason, a person must either confess in open court or have two witnesses testify to the same overt act of treason. This requirement of two witnesses was upheld in Cramer v. United States, where the Court took the view that "the two-witness principle" prevented "imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness".
While treason prosecutions have not been common in American history, the Supreme Court has further defined what each type of treason entails. For example, in Ex parte Bollman & Swarthout (1807), the Supreme Court dismissed charges of treason against two of Aaron Burr's associates, who were allegedly involved in a plot to overthrow the American government in New Orleans, on the grounds that their conduct did not constitute "levying war" against the United States.
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Subversion in China
Subversion is a crime in Mainland China. The government prosecutes subversives under Articles 102 to 112 of the state criminal law, which specify the types of behaviour that constitute a threat to national security. Articles 105 and 111 are the most commonly used to target political activists, human rights campaigners, journalists, lawyers, scholars, and dissidents. Article 105 criminalises "organising, scheming, and acting to subvert the political power of the State and overthrow the socialist system". It also covers the use of "rumour-mongering or defamation or other means" to incite subversion. The United Nations Working Group on Arbitrary Detention criticised the article for its vague language, which could be used against the communication of thoughts or ideas. Article 111 prohibits the sharing of state secrets or intelligence with external entities.
The Chinese government has been accused of using subversion charges as a catch-all to imprison those expressing dissent. For example, in 2017, dissident Wu Gan was sentenced to eight years in prison for criticising the government online. In 2019, human rights activist Zhen Jianghua was sentenced to two years in prison for "inciting subversion of state power". The same year, pastor Wang Yi was sentenced to nine years in prison on similar charges.
In Hong Kong, the National Security Law (NSL) passed in 2020 has been criticised for its vague wording, which could deem anything a threat to "national security". The law has been used to target pro-democracy figures and journalists, causing several news outlets to shut down. The Hong Kong government has also attempted to restrict students' freedom of expression, with the Secretary of Education stating that students should not sing songs, chant slogans, or conduct activities with political messages. The NSL has been seen as a breach of the "one country, two systems" principle agreed upon during the 1997 handover by the UK to China.
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Subversion in Italy
Subversion is a crime in Italy under Article 283 of Italian criminal law. It is referred to as "Attentato alla Costituzione" in Italian. The Italian constitution, formed after World War II, is a rigid constitution that cannot be repealed or amended by other laws. It is shaped by various political and social views, including anti-fascist, socialist, communist, and Roman Catholic ideologies.
Articles 13–28 of the Italian Constitution are the equivalent of a bill of rights in common law jurisdictions. They guarantee certain fundamental rights and freedoms, such as habeas corpus, the presumption of innocence, freedom of religion, and freedom of assembly. The Constitution also establishes Italy as a republic, with the head of state being non-hereditary and the principle of popular sovereignty upheld.
The procedure to amend the Italian Constitution is relatively straightforward compared to other systems with rigid constitutions. It follows a variation of the ordinary legislative procedure, requiring both houses of parliament to approve a bill in its entirety during two readings, at least three months apart. If the bill receives a two-thirds majority in both houses, it can be immediately promulgated by the President of Italy. However, if it receives a simple majority but less than two-thirds, it must be published in the Official Gazette, and a constitutional referendum may be requested. If no referendum is requested within three months, the bill becomes law.
Despite the protections in place, there have been recent efforts by Italy's far-right government, led by Prime Minister Giorgia Meloni, to rewrite the constitution. The proposed reform, called the "premierato," aims to grant more power to the prime minister's office by allowing direct elections for the head of government. Critics argue that this reform undermines the anti-fascist nature of the constitution and weakens other democratic institutions, such as parliament. The opposition parties are exploring options to halt these changes, including collecting signatures for a referendum.
While subversion is a crime in Italy, the definition and understanding of subversion are complex. It involves contradicting or reversing the values and principles of a system to sabotage the established social order, power structures, and social norms. However, distinguishing between subversion and non-subversive acts can be challenging, as criticism of a government with the intent to reform is not necessarily considered subversion, even if it contributes to potential overthrow.
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Advocating the overthrow of the US government
The US Constitution identifies two types of conduct that constitute treason: "(1) "levying war" against the US; and (2) "adhering to [its] enemies, giving them aid and comfort". The Framers of the US Constitution intended to define treason narrowly, making it challenging to establish that someone has committed treason.
The Constitution also narrowed the scope of punishment for treason compared to English common law. While Congress has the power to establish penalties for treason, it may not "work corruption of blood, or forfeiture except during the life of the person" convicted.
In the case of Ex parte Bollman & Swarthout (1807), the Supreme Court interpreted the offense of "levying war" against the US narrowly. It dismissed charges of treason against two of former Vice President Aaron Burr's associates, Bollman and Swarthout, arguing that their alleged conduct did not amount to "levying war" against the US.
In the US, advocating for the overthrow of the government is a crime. According to 18 U.S. Code § 2385, anyone who organizes or helps organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of the government by force or violence shall be fined, imprisoned for not more than 20 years, or both. They shall also be ineligible for employment by the US or any department or agency for five years following their conviction.
Subversion, or the process of contradicting or reversing the values and principles of a system to sabotage the established social order, is a crime in some countries, such as China and Italy, but not in the US or the UK. In China, the government prosecutes subversives under Articles 102-112 of the state criminal law, which specify the types of behavior that constitute a threat to national security. Articles 105 and 111 are commonly used to silence political dissent.
While there is no crime of subversion in the UK, MI5 previously had legal investigative powers for concerns of threats to national security by subversion. However, subversion is no longer investigated due to a reduced threat since the end of the Cold War.
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Subversion defined
Subversion is derived from the Latin word "subvertere", which means "overthrow". It refers to the contradiction or reversal of the values and principles of an established system, in an attempt to sabotage the social order and its structures of power, authority, tradition, hierarchy, and social norms. It is often used as a tool to achieve political goals, as it carries less risk, cost, and difficulty compared to open conflict.
In the context of law and governance, subversion is a crime in some countries, such as China and Italy, but not in others, like the UK and the US. In China, Articles 102 to 112 of the state criminal law define the types of behaviour that constitute a threat to national security, and many dissidents have been prosecuted under these laws. Italy, meanwhile, has Article 283 of its criminal code, which addresses subversion.
In the US, while there is no specific crime of subversion, there are laws against treason, which is narrowly defined in the Constitution as either "levying war" against the US or "adhering to [its] enemies, giving them aid and comfort". The Supreme Court has interpreted "levying war" narrowly, requiring an open action with a treasonable purpose. Merely conspiring to subvert the government by force is not treason, according to Chief Justice Marshall.
The distinction between traitorous actions and treasonous thoughts is crucial, and this is reflected in the requirement for some form of action before a person can be convicted of treason. This distinction upholds First Amendment values and protects against the use of treason prosecutions to silence legitimate political opposition.
While subversion is not specifically mentioned in US law, there are laws against advocating for the overthrow of the government. These laws prohibit organizing or helping to organize any group that encourages the violent overthrow of the government.
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Frequently asked questions
Subversion refers to a process by which the values and principles of a system in place are contradicted or reversed in an attempt to sabotage the established social order and its structures of power, authority, tradition, hierarchy, and social norms.
Subversion is a crime in Italy and China. In the US, the Constitution identifies what constitutes treason against the country and limits the offense to two types of conduct: "levying war" against the US or "adhering to [its] enemies, giving them aid and comfort." The Framers of the Constitution intended to narrowly define treason and make it challenging to establish.
Articles 105 and 111 in China are the most commonly employed to silence political dissent. Article 105 criminalizes organizing, plotting, or carrying out subversion of the national order, while Article 111 prohibits stealing, secretly collecting, purchasing, or illegally providing state secrets or intelligence to external sources.
