Eleanor Finch
Treason is the only crime explicitly defined in the US Constitution. According to Article III, treason against the United States consists of levying war against the country or adhering to their enemies, giving them aid and comfort. This definition is intentionally narrow, as the Framers of the Constitution wanted to restrict the concept of treason after witnessing how the English kings and British Parliament used treason charges to eliminate political dissidents. The Constitution also outlines the requirements for conviction, which include the testimony of two witnesses to the same overt act or a confession in open court. This safeguard helps prevent the abuse of treason charges and ensures that the definition of treason cannot be easily expanded.
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What You'll Learn
What constitutes levying war
The U.S. Constitution defines treason as levying war against the United States, adhering to their enemies, and giving them aid and comfort. It is the only crime defined in the Constitution. To convict someone of treason, there must be testimony from two witnesses to the same overt act or a confession in open court.
Levying war is not limited to formally declaring war. It includes any forcible opposition to the execution of a public law. This "forcible opposition" usually requires the actual use of force by multiple people with the shared purpose of preventing a law from being enforced. Weapons are not always necessary, as a large number of people can be enough. An individual acting alone cannot be guilty of levying war. There must be an assemblage of people who are ready and intend to use force.
Chief Justice Marshall clarified the meaning of "levying war" in Ex parte Bollman (1807). He stated that the actual enlistment of men to serve against the government does not amount to levying war. However, if a group of people assemble with the purpose of effecting a treasonable act through force, all those who play a part in the conspiracy are considered traitors.
In addition to levying war, aiding the enemy is another aspect of treason. This requires more than providing assistance that is casually useful to the enemy. The aid must assist the enemy in an essential way, furthering their plan to commit a treasonous act. The prosecution must prove adherence or loyalty to the enemy and the provision of aid or comfort. Furthermore, treason by aiding the enemy can only occur during wartime, as there must be a designated enemy for the traitor to aid.
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What constitutes adhering to their enemies
Adhering to the enemies of the United States is a crucial aspect of treason, as outlined in Article III of the U.S. Constitution. This act of treason involves providing aid and comfort to the enemies of the nation. It is important to note that treason is the only crime explicitly defined in the U.S. Constitution.
To understand what constitutes "adhering to their enemies," we can delve into several key components. Firstly, there must be an established enemy of the United States. This enemy designation typically requires a formal declaration of war. During peacetime, one cannot commit treason by aiding the enemy, as there is no designated enemy to aid.
Secondly, the act of adhering or providing aid and comfort must be intentional and treasonous in nature. Sympathy for the enemy does not constitute treason; instead, there must be concrete actions taken to assist or provide comfort to the enemy. These actions can take various forms, such as providing weapons, ammunition, or even making online posts that aid the enemy's treasonous plans or designs. The assistance provided must be essential to the enemy's treasonous goals, not merely "casually useful."
Thirdly, the prosecution must provide sufficient evidence to prove treason. According to the U.S. Constitution, a person cannot be convicted of treason unless there is testimony from two witnesses to the same overt act or a confession in open court. An overt act, in this context, refers to an action that demonstrates criminal intent and contributes to the accomplishment of treason. It is important to note that the overt act itself does not have to be criminal but rather a step towards committing treason.
The requirement of two witnesses or a confession ensures a high standard of proof, making it challenging to establish treason. This safeguard was intentionally included by the Framers of the Constitution to prevent the abuse of treason charges, as they had witnessed in English history. By restricting the definition of treason and the power to change it, the Framers aimed to prevent partisan divisions escalating into capital charges of treason.
In summary, adhering to the enemies of the United States involves intentionally providing essential aid or comfort to a designated enemy. The act of treason in this context is not limited to direct assistance but also includes actions that support the enemy's treasonous plans. The high standard of proof required, with the need for witness testimony or a confession, underscores the seriousness of treason as a crime in the U.S. legal system.
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What constitutes giving them aid and comfort
The U.S. Constitution defines treason as one of two types of conduct: "levying war" against the United States, or "adhering to [the] enemies [of the United States], giving them aid and comfort".
The requirement of "giving them aid and comfort" means that a citizen may take actions that aid and comfort the enemy, but if there is no adherence to the enemy, and no intent to betray, there is no treason. Sympathy for the enemy does not constitute aiding or comforting. Rather, the actor must take some kind of action to provide aid or comfort.
In Cramer v. United States (1945), the Court considered whether the "overt act" at issue must itself manifest a treacherous intention or if it was enough that other proper evidence supported such an intention. The Court took the former view, holding that the Treason Clause's "two-witness principle" prohibited "imputation of incriminating acts to the accused by circumstantial evidence". The "overt act" requirement was designed to limit the kind of substantive behaviour treason could punish, and to ensure that the conduct itself demonstrated a defendant's intention to betray the United States.
In Haupt v. United States (1947), the Supreme Court sustained a treason conviction for the first time in its history. The defendant was charged with harbouring and sheltering his son, an enemy spy and saboteur, and assisting him in purchasing an automobile and obtaining employment in a defence plant. The Court held that these acts were "more than casually useful; they were aids in steps essential to his design for treason".
In summary, giving aid and comfort to the enemy requires an overt act that demonstrates an intention to betray the United States. This act must be witnessed by two witnesses or confessed in open court.
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The standard of proof for conviction
The Constitution, therefore, requires that a conviction for treason must be supported by the testimony of two witnesses to the same overt act or on a confession in open court. This is known as the "two-witness rule". The rule was established to prevent Congress from dispensing with it by giving the offence another name. The two witnesses must testify to an overt act, which is an act that shows criminal intent and furthers the accomplishment of a crime. The overt act does not have to be a crime itself, and a wide range of actions can qualify, from making online posts to providing weapons.
The two-witness rule does not exclude confessions or admissions made out of court, where a legal basis for the conviction has been laid by the testimony of two witnesses, and such confessions or admissions are merely corroborative. This was seen in the case of Haupt v. United States, where the court held that conversation and occurrences long prior to the indictment were admissible evidence on the question of the defendant's intent.
In addition to the two-witness rule, the Constitution also requires that treason must involve an assemblage of men for a treasonable purpose. This means that there must be an actual gathering of people who are ready and intend to use force to commit a treasonous act. Mere conspiracy or planning is not enough to satisfy this requirement.
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The punishment for treason
Treason is the only crime explicitly defined in the US Constitution. According to Article III, Section 3, treason against the United States consists of either levying war against the US or adhering to their enemies, giving them aid and comfort. This definition restricts Congress's ability to change the definition or create degrees of treason, though they are authorised to set penalties for the crime.
The federal treason statute, 18 U.S.C. § 2381, imposes a minimum penalty of five years' imprisonment and a $10,000 fine. A conviction also bars the defendant from holding any federal office and carries the possibility of the death penalty. The punishment for treason varies across states, with some states, like Vermont, prescribing the death penalty specifically for treason, while others allow for life imprisonment or a minimum of 20 years' imprisonment.
The Treason Clause in the Constitution is a result of the Framers' awareness of the "numerous and dangerous excrescences" of English law, which allowed the ruling class to eliminate political dissidents by charging them with treason. The Framers intended to create a restrictive concept of treason, adopting parts of the English Statute of Treason but omitting the provision that allowed for charges of treason for acts that threatened the king. This omission aimed to protect nonviolent political processes from prosecution and prevent the escalation of partisan divisions into capital charges.
The requirement of two witnesses to the same overt act or a confession in open court makes it challenging to establish that someone committed treason. The definition of "levying war" has been interpreted to include any forcible opposition to the execution of a public law, requiring the actual use of force by multiple people with a common purpose. Merely conspiring to overthrow the government does not constitute treason; there must be an actual assemblage of people ready to use force. Similarly, sympathy for the enemy is insufficient for a treason charge; an action must be taken to provide aid or comfort, and this must assist the enemy in an essential way.
While the Cramer Court recognised Congress's broad power to criminalise offences harmful to the United States, it also emphasised limits to this power, stating that Congress could not dispense with the two-witness rule by giving the offence another name. Lower courts have often avoided directly answering whether other similar crimes could constitute treason by concluding that they lack all the elements required to prove treason.
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