Eleanor Finch
The US Constitution's framers were wary of giving Congress the power to declare and punish treason, having witnessed how the English monarchy used treason charges to eliminate political dissidents. The Treason Clause in Article III of the Constitution restricts treason to two types of conduct: levying war against the US or adhering to [its] enemies, giving them aid and comfort. The Supreme Court has further defined these terms, requiring an open action for levying war and adherence or loyalty plus essential assistance for giving aid and comfort. No person can be convicted of treason without the testimony of two witnesses or a confession in open court. Congress has the power to declare the punishment for treason.
| Characteristics | Values |
|---|---|
| What constitutes treason against the United States | "Levying war" against the United States or "adhering to [the] enemies [of the United States], giving them aid and comfort" |
| Requirements for conviction | Testimony of two witnesses to the same overt act or confession in open court |
| Who has the power to declare war | Congress |
| Who has the power to hear cases of treason | The courts |
| Who has the power to declare the punishment of treason | Congress |
| Limitations | No attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted |
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What You'll Learn
The Treason Clause limits treason to two types of conduct
The Treason Clause in Article III of the US Constitution limits treason to two types of conduct. The Constitution specifically identifies what constitutes treason against the United States and limits the offence 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 Framers of the Constitution wanted to create a "restrictive concept of the crime of treason". They adapted parts of the English Statute of Treason but left out the phrase defining treason as "compass[ing] or imagin[ing] the death of our lord the King". This phrase had been used by English kings and parliament to develop "constructive treason" laws, which allowed them to eliminate political dissidents. The Framers wanted to prevent this from happening in the United States.
The Treason Clause also provides that the offence of treason may only be proven by "open confession in court" or on "the testimony of two witnesses to the same overt act". This 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.
There have been very few treason prosecutions in American history. Only one person has been indicted for treason since 1954. The Supreme Court has further defined what each type of treason entails. For example, in Ex parte Bollman & Swarthout (1807), the Supreme Court interpreted "levying war" narrowly, dismissing charges of treason against two of Aaron Burr's associates.
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Levying war means an open action against the US
The US Constitution identifies two types of conduct that constitute treason against the United States. One of these is "levying war" against the nation, which requires an "open action" and the use of force. This means that an act of treason must involve an actual assembling of people for the treasonable purpose of using force against the US government.
The Framers of the Constitution were wary of giving Congress the power to declare and punish treason, having witnessed how the English monarchy used the crime of treason to eliminate political dissidents. As such, they created a restrictive concept of treason, requiring an "open action" that goes beyond merely "'imagining' treason".
The early judicial interpretation of "levying war" was influenced by the partisan struggles of the early 19th century, including the treason trials of Aaron Burr and his associates. In the case of Ex parte Bollman (1807), Chief Justice Marshall defined "levying war" as the "'actual waging of war', requiring an "overt act" that moves beyond the "realm of thought into the realm of action".
In United States v. Burr, Marshall instructed the jury to only consider testimony regarding whether Burr committed an act of war, and not any conduct or declarations made elsewhere. This case laid a foundation for future treason cases and made it more challenging to convict someone of "levying war" against the United States.
To convict someone of treason for "levying war", the testimony of two witnesses to the same overt act or a confession in open court is required. This safeguard ensures that treason convictions are based on concrete actions and not merely thoughts or attitudes.
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Adhering to enemies means providing essential aid to an enemy
The US Constitution identifies two types of conduct that constitute treason: "levying war" against the United States, and "adhering to [the] enemies [of the United States], giving them aid and comfort". The Treason Clause limits treason to these two types of conduct.
Adhering to the enemies of the United States and giving them aid and comfort means providing essential aid to an enemy. This means that the aid or comfort must assist the enemy in some essential way to help them commit a treasonous act. An act that strengthens or tends to strengthen the enemy or weakens or tends to weaken the United States likely constitutes giving "aid and comfort" to the enemy. This means that the aid must be more than "casually useful" to the enemy.
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, who was 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 not simply those of a father to a son, but had the treasonable purpose of giving aid and comfort to the enemy. Justice Jackson said that "these acts were more than casually useful; they were aids in steps essential to his design for treason".
The Treason Clause was formulated to create a "restrictive concept of the crime of treason". The Framers had seen how the British ruling class used the crime of treason to eliminate their political dissidents, and so wanted to ensure treason was narrowly defined. As such, the Framers required some sort of action before a person could be convicted of treason, departing from English common law, which recognised constructive treason.
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The Framers wanted a restrictive concept of treason
The Framers of the US Constitution were cautious about granting Congress the authority to declare and punish treason. They were aware of how the English kings and British Parliament had exploited the crime of treason to eliminate political dissidents. As a result, the Framers aimed to establish a restrictive concept of treason.
The Framers had witnessed how the ruling class in England used treason charges to settle partisan disputes, having recently gained independence from Great Britain. They wanted to prevent similar abuses in the United States, so they created a narrow definition of treason. This restrictive concept of treason was intended to ensure that treason charges could not be used to settle ordinary partisan disagreements within political society.
The Framers adapted parts of the English Statute of Treason when drafting the Treason Clause in Article III, Section 3 of the Constitution. Notably, they excluded the phrase "compassing or imagining the death of our lord the King," which had been central to English constructive treason laws. By omitting this phrase, the Framers ensured that treasonous thoughts alone were insufficient for a conviction. Instead, an overt act or open action was required for treason.
The Constitution specifically defines treason against the United States as consisting only of two types of conduct: "levying war" against the United States or "adhering to their enemies, giving them aid and comfort." The Supreme Court has interpreted "levying war" narrowly, requiring an actual assemblage of individuals with a treasonable purpose. "Giving aid or comfort to the enemy" means providing assistance that is essential to their treasonous plan. To convict someone of treason for giving aid and comfort, the government must prove adherence or loyalty to an enemy of the United States and the provision of aid or comfort.
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Treason requires a confession or two witnesses
The US Constitution is very specific about what constitutes treason, limiting it to two types of conduct: "levying war" against the United States, and "adhering to [its] enemies, giving them aid and comfort".
The Constitution also sets out the requirements for convicting someone of treason, stating that:
> 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.
This means that for a person to be convicted of treason, either two witnesses must testify to the same overt act of treason, or the accused must confess in an open court. This rule was included to prevent the powerful from abusing the crime of treason to eliminate their political dissidents, as had happened in England.
The requirement of two witnesses was highlighted in the case of United States v. Burr, which involved former Vice President Aaron Burr, who was accused of plotting to overthrow the American government in New Orleans. In this case, Chief Justice Marshall instructed the jury that:
> No testimony relative to the conduct or declarations of the prisoner elsewhere, and subsequent to the transaction on Blennerhassett's Island, can be admitted; because such testimony, being in its nature merely corroborative and incompetent to prove the overt act in itself, is irrelevant until there be proof of the overt act by two witnesses.
Burr was ultimately acquitted of treason.
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Frequently asked questions
The Treason Clause is a part of the US Constitution that outlines what constitutes treason against the United States. It also gives the courts the power to hear and decide on treason cases.
The Constitution limits treason to two types of conduct: "levying war" against the United States, and "adhering to [the] enemies [of the United States], giving them aid and comfort".
"Levying war" refers to an open action against the United States through the use of force. It requires an assemblage of men for a purpose treasonable in itself.
This means providing assistance to an enemy of the United States that helps them in their plan to commit a treasonous act. The aid must be essential to the enemy's plan, and the accused must show adherence or loyalty to the enemy.
The Constitution gives Congress the power to declare and punish treason. However, the Framers were cautious about this, as they had seen how the English ruling class used treason charges to eliminate political dissidents.
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