Disloyalty occupies a special place in the law. It gets its very own constitutional clause (Article III, Sec. 3). Over British history, persons convicted of high treason could expect to receive particularly harsh punishment well above that of other felonies (hanged, drawn and quartered for men, burning at the stake for women). Yet missing from this account is a seemingly very simple question: What's Wrong with Disloyalty? And this was the subject of visiting professor Youngjae Lee's fall WIP talk.
Before reaching the meat of his paper, Professor Lee first disaggregates "nonloyalty" from "disloyalty". Loyalty, Lee argues, is a feeling or sentiment towards an institution such as a state. Nonloyalty is the lack of such sentiment. Disloyalty, by contrast, involves some overt act harming the entity. The distinction matters, because it helps diminish one of the intuitive problems many have with policing disloyalty in the first place: that it will punish thoughts (or worse, lack of thoughts). While most of us maintain an intuition that disloyalty is a bad thing and probably worthy of punishment, we simultaneously fear mass arrests because one failed to attend a Veteran's Day event or failed to cheer loudly enough for team USA at the Olympics.
However, even this does not get us all of the way there. If disloyalty to the state involves taking some overt act against it (or in favor of a rival), and even if we expel pure speech -- such as rooting for the Canadians against the Americans at the Olympics (full disclosure: as a kid, I typically rooted against team USA in international competitions, primarily out of an instinctive empathy for the underdog. To borrow from and update Joe E. Lewis, in 1992, rooting for the American Olympic basketball team was like rooting for Microsoft -- it just seemed unsporting) -- we could still imagine something like agreeing to be a waterboy for team Canada. An overt act? Yes. "Disloyalty"? Seems harsh.