Eleanor Finch
Treason is the only crime that is expressly defined by the US Constitution. It is the act of betraying the United States by waging war against the country or materially aiding its enemies. The Constitution's framers, influenced by their experience with the English law of treason, included the Treason Clause to guard against the historic use of treason prosecutions by repressive governments to silence otherwise legitimate political opposition. The definition of treason in the Constitution is narrow and restricted to two types of conduct: levying war against the United States or adhering to their enemies, giving them aid and comfort.
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What You'll Learn
'Levying war' against the US
The Constitution of the United States defines treason as "levying war" against the country or "adhering to [the] enemies [of the United States], giving them aid and comfort". This definition is intentionally narrow, as the Framers of the Constitution wanted to guard against the historic use of treason prosecutions by repressive governments to silence legitimate political opposition.
Levying war against the United States refers to the act of waging or making war against the country. This involves the assembly of armed people with the purpose of overthrowing the government or resisting its laws. Chief Justice John Marshall emphasised that conspiring to levy war is distinct from actually levying war. For a person to be convicted of treason for levying war, there must be an "actual assemblage of men for the purpose of executing a treasonable design". In other words, there must be an organised group of people who are actively working together to carry out a plan that is treasonous in nature.
The definition of levying war was further clarified in the case of Ex parte Bollman & Swarthout (1807), which involved two associates of former Vice President Aaron Burr, who was infamously accused of plotting to overthrow the American government in New Orleans. The Supreme Court dismissed the charges of treason against Bollman and Swarthout, as their alleged conduct did not meet the criteria of levying war. This case set a precedent for interpreting the definition of levying war narrowly.
The penalty for treason in the United States can include the death penalty, life imprisonment, or a minimum of five years' imprisonment and a fine of at least $10,000. Additionally, those convicted of treason are deemed incapable of holding any office under the United States. While treason is a rare charge, with few cases reaching the Supreme Court, it is important to note that the definition of treason in the Constitution is specific and distinct from other forms of political opposition or dissent.
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'Adhering to enemies' of the US
Adhering to the enemies of the United States is one of the two types of conduct that can be defined as treason under the US Constitution. The other is levying war against the United States. The Constitution's framers, influenced by their experience with English law, which had a broader definition of treason, wanted to make it challenging to establish that someone had committed treason. They also wanted to guard against the historic use of treason prosecutions by repressive governments to silence legitimate political opposition.
Adhering to the enemies of the United States means giving aid and comfort to the enemies of the United States. This could include helping enemy soldiers who have infiltrated American soil. Importantly, treason does not distinguish between participants and accessories; all persons who rebel or intentionally give aid to hostilities are subject to the same charge.
To be convicted of treason, there must be testimony from two witnesses to the same overt act, or a confession in open court. The penalty for treason can include death, life imprisonment, or a minimum of five years' imprisonment and a fine of at least $10,000. Those convicted of treason are also incapable of holding any office under the United States.
While treason is rarely prosecuted in the United States, it is important to note that the definition of treason in the Constitution is narrow and specific, and it is the only crime expressly defined by the Constitution. The Supreme Court has further clarified what constitutes treason, and Congress has brought treason charges 30 times since the Constitution's ratification.
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The Treason Clause
To be convicted of treason, the Constitution requires the testimony of two witnesses to the same overt act or a confession in open court. This standard of proof was included to protect against false or flimsy prosecutions. The punishment for treason is decided by Congress, and the death penalty or life imprisonment can be imposed. However, treason cases are rare, and only one person has been indicted for treason since 1954.
The Supreme Court has further defined what constitutes "levying war" and providing "aid and comfort" to enemies. In Ex parte Bollman (1807), the Court confined the meaning of "levying war" to the actual waging of war, requiring an actual assemblage of men for the purpose of executing a treasonable design. This interpretation was reaffirmed in Cramer v. United States (1945), a case involving a Nazi saboteur who allegedly helped German soldiers infiltrate American soil during World War II.
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The Supreme Court's interpretation
The U.S. Constitution defines treason as one of two acts: "levying war" against the United States or "adhering to [its] enemies, giving them aid and comfort". This definition is intentionally narrow, as the Framers of the Constitution wanted to restrict Congress's ability to change the definition of treason and the proof required to establish charges.
The Supreme Court has clarified what constitutes "levying war" and "giving aid and comfort" to enemies. In Ex parte Bollman (1807), the Court dismissed charges of treason against two associates of former Vice President Aaron Burr, who had allegedly plotted to overthrow the American government. Chief Justice John Marshall, speaking for himself and three other Justices, confined the meaning of "levying war" to the actual waging of war, requiring an actual assemblage of men for the purpose of executing a treasonable design.
In Cramer v. United States (1945), the Court made treason more difficult to prove, but not impossible. Cramer, a German-American, was prosecuted for treason for allegedly helping German soldiers who had infiltrated American soil during World War II. The Court sustained the conviction, but the trial judge did not sentence Cramer to death, noting that Cramer had only a "vague idea" of the true purpose of the German agents. Justice Robert Jackson, writing for the majority, interpreted the relationship between an overt act and giving aid and comfort to the enemy, stating that treason requires both "adherence to the enemy" and "rendering him aid and comfort".
In Haupt v. United States (1947), the Court sustained a conviction of treason for the first time in its history. The Court held that conversation and occurrences prior to the indictment were admissible as evidence of the defendant's intent and that confessions or admissions made out of court could be used to establish treason, even if the constitutional requirement of two witnesses to the same overt act had not been met.
In summary, the Supreme Court has interpreted treason narrowly, requiring an actual assemblage of men with a treasonable purpose and adherence to the enemy in addition to rendering aid and comfort. The Court has also clarified the role of witness testimony and confessions in establishing treason.
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Treason prosecutions in US history
Treason is the only crime that is expressly defined by the US Constitution. It is limited to two types of conduct: "levying war" against the United States, and "adhering to [its] enemies, giving them aid and comfort". The Constitution's framers wanted to make it challenging to establish that someone had committed treason, and treason charges have indeed been rare in US history. Since the Constitution's ratification, Congress has only brought treason charges 30 times, and the Supreme Court has only sustained a handful of convictions.
One of the most famous treason cases in US history is that of Aaron Burr, who served as Thomas Jefferson's vice president. He was tried in 1807 for allegedly plotting to urge some states to leave the Union and seize land from Spain and Mexico. He was acquitted by jurors who had been instructed that prosecutors had to show not just that Burr made plans to go to war, but that he had actually gone to war against the US.
Another notable treason case is that of Benedict Arnold, an American military officer who defected to the British during the Revolutionary War. He became synonymous with treason, but he was never captured or tried for the crime. Similarly, the president of the Confederacy, Jefferson Davis, was charged with treason after the Civil War, but his prosecution was abandoned as part of an effort at national reconciliation.
Among the last convictions for treason was that of Iva Toguri D’Aquino, also known as Tokyo Rose, who was convicted in 1949 of "giving aid and comfort" to Japan during World War II. She served six years of a ten-year sentence before being pardoned by President Gerald Ford after reports emerged that US authorities had pressured some witnesses to lie. Several other Americans of Japanese and German descent were also convicted of treason for giving aid and comfort to Japan and Nazi Germany during the war.
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Frequently asked questions
Article III, Section 3, Clause 1 of the US Constitution states that treason is limited to two types of conduct: (1)
Levying war means the assembly of armed people to overthrow the government or to resist its laws. Chief Justice John Marshall emphasised that there must be an actual assemblage of men, for the treasonable purpose, to constitute a levying of war.
The punishment for treason is death, life imprisonment, or imprisonment of not less than five years and a fine of not less than $10,000. Those convicted of treason are also incapable of holding any office under the United States.
