Omar Bennett
Treason is the only crime expressly defined by the US Constitution, and it only applies to Americans who betray the country. The Treason Clause in Article III, Section 3 of the US Constitution defines treason as levying war against the US or providing aid to its enemies. The Framers of the Constitution adapted parts of the English Statute of Treason but omitted references to the king and instead focused on acts of war and aiding enemies. The Constitution also narrowed the scope of punishment for treason compared to English common law.
| Characteristics | Values |
|---|---|
| Article | III |
| Section | 3 |
| Clause | 1 |
| Definition of treason | levying war against the U.S., or adhering to their enemies, giving them aid and comfort |
| Requirements for conviction | testimony of two witnesses to the same overt act, or confession in open court |
| Punishment | death, life imprisonment, or not less than five years' imprisonment (with a minimum fine of $10,000, if not sentenced to death) |
| Additional notes | treason is the only crime expressly defined by the Constitution; treason does not distinguish between participants and accessories |
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What You'll Learn
The Treason Clause
The Framers of the Constitution, having just gained independence from Great Britain, were cautious of vesting the power to declare and punish treason in Congress. They had witnessed how English monarchs and Parliament utilised treason charges to eliminate political dissidents, often escalating "ordinary partisan disputes into capital charges of treason". As such, the Treason Clause sets a high bar for conviction, requiring the testimony of two witnesses to the same overt act or a confession in open court. This provision, derived from the English Treason Act of 1695, aimed to safeguard against false or passion-driven accusations of treason.
The requirement of an "overt act" was designed to limit the kinds of substantive behaviour that could be considered treasonous. This was further clarified in the case of Ex parte Bollman in 1807, where Chief Justice Marshall confined the meaning of "levying war" to the actual waging of war, excluding conspiracies from the definition of treason.
The clause has been the subject of interpretation and debate, with courts grappling with the distinction between "aid" and assistance that is merely "casually useful" to an enemy. The Cramer v. United States case in 1945 centred on whether the "overt act" had to be "openly manifest treason" or if a treasonable intention, supported by proper evidence, was sufficient for conviction. The Court held that the "two-witness principle" required direct testimony regarding each act of the defendant used to draw incriminating inferences of aid and comfort to the enemy.
In summary, the Treason Clause in the US Constitution provides a specific definition of treason, establishes rigorous evidentiary standards for conviction, and places limitations on the punishment of treasonous acts.
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Framers' Intent
The Framers of the U.S. Constitution intended to define treason narrowly, influenced by their experience with the English law of treason, which had a much broader definition. The Framers had witnessed treason during the Revolutionary War, such as the betrayal of General Benedict Arnold, who conspired against George Washington and the United States. They adapted parts of the English Statute of Treason, specifically omitting the phrase referring to "the 'compassing or imagining the death of our lord the King", which had been used to develop constructive treason laws.
The Framers wanted to restrict the concept of treason and make it challenging to establish that someone had committed treason. They wanted to prevent the abuse of treason charges, having seen how English kings and the British Parliament escalated disputes into accusations of treason. They included the Treason Clause to protect core individual rights, particularly freedom of expression and dissent, and to guard against false or flimsy prosecutions. The Framers recognised that national security offences could inflame public passions, so they wanted treason cases to have heightened procedural protections.
The Framers also wanted to restrict Congress's power to change the definition of treason and the evidence required to establish charges. They included treason in the Constitution, in Article III, Section 3, defining it as "levying War" against the United States or "adhering to their Enemies, giving them Aid and Comfort". This specific definition was intended to limit Congress's ability to broaden the interpretation of treason.
The Framers' intent was to ensure that treason required both concrete action and an intent to betray the nation. They established the requirement of an overt act, indicating a treasonous project had moved from thought into action. Additionally, they implemented the "two-witness rule", requiring the testimony of two witnesses to the same overt act or a confession in open court to prove treason. These measures were designed to make it more difficult to prosecute someone for treason and to protect individuals' rights.
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Limitations on Congress
The US Constitution defines treason in Article III, Section 3, which is also known as the Treason Clause. This clause serves to protect core individual rights, particularly the freedom of expression and dissent. It also prevents the abuse of treason charges, which have historically been used by repressive governments to silence legitimate political opposition.
The Framers of the Constitution adapted parts of the English Statute of Treason, enacted in 1350 and 1473, but they specifically omitted any mention of the English monarch. This was because the charge of compassing the king's death had been used to suppress political opposition, and the Framers wanted to make it challenging to establish that someone had committed treason.
The Treason Clause defines treason as:
> "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court."
Levying war involves forcibly opposing the execution of a public law, which usually requires the actual use of force by multiple people. Providing aid or comfort to the enemy involves taking some kind of action to assist them, and cannot be committed during peacetime.
The Treason Clause limits Congress's power to define treason and the proof needed to establish charges. Congress can specify the punishment for treason, but it cannot change the definition or create degrees of treason. The First Amendment is the primary limitation on treason prosecutions, allowing people to express anger or a desire to overthrow the government without it being considered treasonous, as long as it does not incite violence.
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Proof and Prosecution
The US Constitution defines treason in Article III, Section 3, also known as the Treason Clause. This clause is designed to protect core individual rights, particularly the freedom of expression and dissent.
The Constitution outlines that treason can only be proven by an "open confession in court" or through the testimony of two witnesses to the same overt act. This requirement is in place to ensure that the conduct itself demonstrates a defendant's intention to betray the United States, as no witness can testify to a defendant's internal state of mind. The Cramer Court emphasised that the defendant's disloyal intent must be evident from the acts themselves, and the government must prove that each act "actually gave aid and comfort to the enemy."
The two-witness requirement raises the bar for prosecution, applying to all acts used to draw incriminating inferences. This means that the prosecution must prove that each act alleged aided and provided comfort to the enemy. The Court in Cramer reversed a conviction where the defendant met with a man who turned out to be a German soldier, as these facts alone did not establish that the defendant had given aid and comfort to the enemy.
The two-witness principle also serves to prevent the imputation of incriminating acts to the accused by circumstantial evidence or the testimony of a single witness. This was demonstrated in the Cramer case, where an innocent act did not need two witnesses to be considered incriminating.
The requirement of an overt act ensures that a treasonable project has moved from thought into action. This was met in the case of Cramer, where the defendant's acts of harbouring and sheltering his son, an enemy spy, assisting him in purchasing a car, and obtaining employment in a defence plant, were considered acts of aid and comfort to the enemy.
While treason prosecutions are rare, they carry serious penalties, including imprisonment, fines, and the possibility of the death penalty.
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Punishment
The US Constitution defines treason as "levying war" against the United States or "adhering to their enemies, giving them aid and comfort". Article III, Section 3, Clause 1 of the US Constitution outlines the requirements for treason:
> "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court."
The Framers of the Constitution adapted parts of the English Statute of Treason, enacted in 1350 and 1473, but they intentionally omitted references to the king, as treason in the US does not apply to foreign nationals who do not owe allegiance to the US. The Framers also wanted to make it challenging to establish that someone had committed treason, and by defining treason in the Constitution, they restricted Congress's power to change the definition and the evidence required to prove treason.
Treason is punishable by a minimum 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 Constitution narrowed the scope of punishment for treason compared to English common law. Congress has the power to declare the punishment for treason, but they cannot change the definition or create degrees of treason.
Treason by aiding the enemy cannot be committed during peacetime, and there must be an official enemy designation, typically requiring a formal declaration of war. A person can be convicted of treason even if the attempt to aid the enemy is unsuccessful, and the enemy's goal is not achieved. The prosecution needs either a confession or two witnesses testifying to the same "overt act" by the defendant. An overt act is one that shows criminal intent and furthers the accomplishment of a crime. The Cramer Court ruled that the defendant's disloyal intent must be evident from the witnessed acts, and the government must prove that each act "gave aid and comfort to the enemy".
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Frequently asked questions
Article III, Section 3.
Article III, Section 3, Clause 1 of the U.S. Constitution states: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court."
The Treason Clause defines treason and restricts Congress's ability to change the definition of treason or the proof required to establish treason.
Clause 2 of Article III, Section 3 makes clear that Congress has the power to declare the punishment for treason. The federal treason statute, 18 U.S.C. § 2381, imposes minimum penalties 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.
Treason applies to American citizens, including those with dual citizenship, and aliens domiciled in the US who owe a temporary allegiance to the country. It does not apply to foreign nationals who do not owe any allegiance to the United States.
