Omar Bennett
Treason is the only crime defined in the U.S. Constitution. The Framers of the U.S. Constitution intended to define treason narrowly, after witnessing its use during the Revolutionary War and experiencing the English law of treason, which covered many actions against the Crown. The Framers wanted to make it challenging to establish that someone had committed treason and to restrict Congress's power to change the definition or the proof required to establish charges. Article III, Section 3 of the U.S. Constitution defines treason as levying war against the U.S. or adhering to and giving aid and comfort to its enemies.
| Characteristics | Values |
|---|---|
| Article | III |
| Section | 3 |
| Clause | 1 |
| Definition | "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort." |
| Conviction Requirements | Testimony of two witnesses to the same overt act, or confession in open court |
| Penalty | Death, minimum five years' imprisonment, a minimum fine of $10,000, and a bar on holding federal office |
| Framers' Intent | To define treason narrowly, restrict Congress's power to change the definition, and prevent false or flimsy prosecutions |
| Applicability | Only applies to Americans who owe allegiance to the United States, including dual citizens |
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What You'll Learn
The Framers' intentions
The Framers of the US Constitution intended to define treason narrowly, in response to their experience with English law on the subject, which allowed for a much broader interpretation. The English law of treason was used to suppress a wide range of political opposition, and the Framers wanted to ensure that treason could not be used to prosecute legitimate political opposition.
The Framers adapted parts of the English Statute of Treason when they formulated the treason clause, but they specifically omitted the phrase that defined treason as "the compassing or imagining the death of our lord the King". This was the principal instrument by which treason was used to suppress political opposition in England. The Framers also witnessed treason during the Revolutionary War, when General Benedict Arnold betrayed George Washington and the United States by conspiring to turn the fort at West Point over to the British.
The Framers intended to make it challenging to establish that someone had committed treason. By defining treason in the Constitution, they restricted Congress's power to change the definition of the crime and the proof needed to establish charges. The Framers wanted to ensure that treason could only be proven by ""open confession in court", or on "the testimony of two witnesses to the same overt act". The ""overt act" requirement was designed to limit the kind of substantive behaviour that could be considered treasonous, and to ensure that a treasonous project had moved from thought into action.
The Framers also wanted to limit the scope of punishment for treason compared to English common law. They wanted to make sure that treason could not be used to prosecute nonviolent political processes. The Framers shared the centuries-old view that all citizens owed a duty of loyalty to their nation, but they included the treason clause to guard against the historic use of treason prosecutions by repressive governments to silence otherwise legitimate political opposition.
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Treason's definition
Treason is the only crime defined in the US Constitution. The Framers of the Constitution intended to define treason narrowly, after witnessing its misuse under English law, where it was used to suppress political opposition. The Framers wanted to make it challenging to establish that someone had committed treason and to restrict Congress's power to change the definition of the crime.
Article III, Section 3 of the US Constitution 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 means the assembly of armed people to overthrow the government or to resist its laws. It requires an open action against the United States through the use of force and cannot be committed by merely conspiring to overthrow the government.
Adhering to the enemies of the United States involves providing aid or comfort to them. This means more than giving assistance that is casually useful to them. Instead, the aid or comfort must assist the enemy in some essential way to commit a treasonous act. To convict someone of treason for giving aid or comfort to an enemy, the government must prove adherence or loyalty to an enemy of the United States, and the provision of aid or comfort to that enemy.
The Constitution requires both concrete action and an intent to betray the nation before a citizen can be convicted of treason. Expressing traitorous thoughts or intentions alone does not constitute treason.
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Treason vs. free speech
Treason is a rare but serious federal crime, defined as the betrayal of one's country or government. It is the only crime defined in the US Constitution, specifically in Article III, Section 3, which 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 Framers of the US Constitution intended to define treason narrowly, in response to their experience with the English law of treason, which had a broader definition and was used to suppress political opposition. The Constitution's treason clause restricts Congress's power to change the definition of treason or the proof required to establish charges.
To convict someone of treason, the government must prove two elements: adherence or loyalty to an enemy of the United States, and the provision of aid or comfort to that enemy. While words alone usually do not constitute treason, they can serve as proof of treasonous intent. Speech can become treason when it transcends mere words and satisfies the four requisites demanded by the Supreme Court: an overt act, testified by two witnesses, manifesting an intent to betray the United States, and providing aid and comfort to the enemy.
Free speech is protected by the First Amendment, which is the primary limitation on treason prosecutions. While freedom of speech allows people to express anger toward the government and even a desire to overthrow it, it does not protect speech that is likely to incite others to violence. For example, in the Schenck case, the Supreme Court ruled that during a war, pure speech could be suppressed for the "common good," but this did not constitute treason. Similarly, members of the Communist Party of the United States were indicted for conspiring to advocate the overthrow of the government by force, but they were not charged with treason.
In summary, treason and free speech are distinct concepts. While free speech is protected by the First Amendment, treason involves taking concrete actions against the United States, such as levying war or providing aid and comfort to an enemy. While speech can be considered treasonous in certain contexts, it is not enough to constitute treason by itself and must be accompanied by overt acts.
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Treason prosecutions
Treason is the only crime specifically defined in the US Constitution. According to Article III, Section 3, Clause 1:
> 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 US Constitution intended to define treason narrowly due to their experience with the English law of treason, which was broad and often used to suppress political opposition. The Framers also wanted to make it challenging to establish that someone had committed treason. By defining treason in the Constitution, they restricted Congress's power to change the definition of the crime and the proof needed to establish charges of treason.
Since the Constitution's ratification, Congress has only brought treason charges 30 times, with only 13 resulting in a conviction. Few treason cases have ever reached the Supreme Court. Although there were several instances in early American history, the Court first sustained a treason conviction in 1947.
State treason prosecutions are even rarer, with only three people ever being charged with treason at the state level. This is because most treason threatens the nation, not just a single state. Treason also does not apply to foreign nationals who do not owe any allegiance to the United States. However, it does apply to American citizens holding dual citizenship, as they owe allegiance to the United States wherever they reside.
The First Amendment is the primary limitation on treason prosecutions. While words alone usually cannot constitute treason, they can serve as proof of the speaker's treasonous intent. There are two ways to commit treason: levying war against the government or providing aid or comfort to the enemy. "Levying war" refers to assembling for a purpose "treasonable in itself" and requires open action against the United States through the use of force. Merely conspiring to overthrow the government does not count as levying war. To convict someone of treason for giving aid or comfort to an enemy, the government must prove adherence or loyalty to an enemy of the United States and that the accused provided aid or comfort to the enemy.
Some notable treason cases include the acquittal of Aaron Burr in 1807, the execution of Hipolito "Polo" Salazar during the Taos revolt, the conviction of Mildred Gillars ("Axis Sally") in 1949, and the charging of Adam Yahiye Gadahn in 2006 for making propaganda videos for al-Qaeda.
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Treason in state constitutions
Treason is the only crime that is defined in the US Constitution. Article III, Section 3 of the US Constitution states that treason against the United States shall consist only of "levying war" against the US or "adhering to their enemies, giving them aid and comfort". The Framers of the Constitution adapted parts of the English Statute of Treason, but they specifically left out the language that allowed for "constructive treason" laws. The Framers intended to define treason narrowly, making it challenging to establish that someone committed treason and restricting Congress's power to change the definition or the proof required to establish charges of treason.
State treason prosecutions are extremely rare, with only three people ever being charged with treason at the state level. This is because most treason threatens the entire nation, not just a single state. The elements of treason are the same under state and federal law: the defendant owes allegiance to the government and intentionally betrays that allegiance.
Treason does not apply to foreign nationals who do not owe any allegiance to the United States. However, it does apply to American citizens with dual citizenship and aliens living in the United States, who owe a temporary allegiance to the country.
There have been fewer than 40 federal prosecutions for treason since the Constitution came into effect in 1789, with even fewer convictions. The last federal treason conviction to be fully upheld was that of Nazi sympathizer Herbert John Burgman in 1949.
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Frequently asked questions
Article III, Section 3 of the US Constitution defines treason.
Treason is defined as levying war against the US or adhering to their enemies, giving them aid and comfort.
Levying war means the assembly of armed people to overthrow the government or to resist its laws. It requires an open action against the US through the use of force.
Giving aid and comfort to an enemy means assisting them in some essential way to commit a treasonous act. It requires adherence or loyalty to an enemy of the US.
The punishment for treason is death or a minimum of five years' imprisonment and a $10,000 fine. A conviction also bars the defendant from holding any federal office.
