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Treason and the Constitution

If you’ve read over the Constitution a few times — maybe it’s kind of old-fashioned to actually read the Constitution, but I trust many readers have done this — you’ve probably noticed the remarkable number of times the document mentions the crime of treason.

Treason first shows up in the Speech and Debate Clause, Article I, Section 6:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by law, and paid out of the Treasury of thc United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Here it is again in the Impeachment clause, Article II, Section 4:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

But the real attention comes in Article III, which actually provides a constitutional definition of the crime of treason, as well as special rules of criminal proceudre to be used in treason trials. Here is Article III, Section 3, generally known as the Treason clause:

Section. 3. 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 Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

But wait, there’s more! Treason is also mentioned in Article IV:

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

So by now you’re probably wondering, dude, what’s the deal with the Framers’ obsession with treason? When the Framers met in Philadelphia to draft the Constitution, did they just have treason on the mind?

The explanation, as best I can tell, is that the crime of treason had been a very big deal in England for several centuries up the time of the framing of the Constitution.  The Framers of the Constitution were certainly familiar with this history, and they didn’t have any reason to believe the future would be different from the past.

English Kings had long been big fans of bringing treason cases against their enemies, and the origins of English criminal procedure law were largely traceable to outcry (particularly among the wealithy — go figure) of the unfairness of treason prosecutions.  For example, the Constitutional definition of treason was copied almost verbatim from a treason statute enacted in 1351 during the time of Edward III. Also, a number of procedural protections that made it into the Bill of Rights, such as the right to counsel and the right to a public indictment, had been first introduced in England only for treason trials as part of the Treason Trials Act of 1696.

You can also see the special status of treason in the early English criminal law treatises. If you pick up a modern treatise on criminal law these days, the first crime — the most serious offense — is murder. Not so in the 17th and 18th century. Blackstone’s chapter on high treason came much before murder. And in Sir Edward Coke’s Institutes, treason is not only discussed first, but it receives mention in the title of the book on criminal law: The Third Part of the Institutes of the Laws of England; Concerning High Treason, and Other Pleas of the Crown and Criminal Causes.

So at the time of the framing, the crime of treason was a very big deal.  And indeed, it would continue to be a big deal in the late 18th century and early nineteenth century, including in the most famous case of criminal law in the early Republic: the treason trial of Aaron Burr presided over by Chief Justice John Marshall.

You don’t hear a lot about treason these days, except perhaps from Ann Coulter.  But it was a very big deal at the time of the framing, and my understanding is that this history explains why it was mentioned so often in the Constitution.