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.
I wouldn’t say it’s ironic, but I guess just pathetic that the present mentions of treason are against political enemies. The fact that treason is the only crime with its proof requiremens spelled out in Art. IV hints that the framers didn’t want this to be used as a tool for the government to easily get rid of its enemies.
[OK Comments: Armen, to be fair, I don't think anyone is seriously considering actual treason charges these days.]
This is the most boring blog I have come across. I have surfed until I reached the end of the internet and now I want to surf no more. You have cured me of insomnia. By the way, the Constitution is not bedside reading!
[OK Comments: Thanks for the helpful comment, Bob. But shouldn't you be billing hours instead of reading blogs?]
“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.”
My understanding of this is that with murder, you are merely committing a crime against one particular individual, whereas with treason, you are committing a crime against everyone within your sovereign state, which is thus a greater betrayal of the principles of law and man.
[OK Comments: Yup, that's the basic idea expressed in the treastises. The King was the State, he owned all of England, he was the head of the Church, etc. Treason against the King was treason against pretty much everything.]
Orin:
I was struck by the language in Art. IV suggesting that *states* have jurisdiction over the crime of Treason. In other words, Treason apparently is neither an exclusively federal crime nor a crime to be tried exclusively in federal court. [I'm assuming that "Treason" as used in Art IV means "Treason against the United States" as defined in Art. III. Or is that wrong? Is there a common-law version of Treason that the framers may have been referring to?]
Question: Looking at Art IV, does its Treason language mean that federal treason charges could be brought in state courts by either/both the US Attorney General, his designee, or a state prosecutor–as state courts are courts of general jurisdiction? [I understand that the Judiciary Act of 1789 vested federal district and circuit courts with exclusive jurisdiction over federal crimes (and that remains true), but I'm asking about whether state courts -- in the absence of such exclusivity or in the absence of lower federal courts altogether -- would hear those cases. Wouldn't they have to? Isn't that the consistent with the concept of the limited federal government originally intended (as some say)?]
Does Art IV mean that Treason against the United States could be charged under state statutory or common law, so long as the charge is in accordance with the rules of proof in Art III? Does the language of Art III mean that “treason” no longer is a common-law crime in the US?
[OK Comments: Very good questions, Marc. A few thoughts. First, Article III makes federal trial courts optional, not mandatory, so it makes sense that state courts could have trial court jurisdiction over federal treason trials. If Congress had decided not to create the lower federal courts, federal crimes would have had to have been tried in state court, which as you say were considered courts of general jurisdiction. I don't know if it's clear what would have happened then; perhaps the best hint is the Supreme Court's 1812 opinion ruling that there are no common law crimes in federal court, United States v. Hudson and Goodwin. But my understanding is that the outcome of Hudson was pretty unclear before it was decided, so I don't know how much light it sheds on the original understanding.]
Prof. Kerr:
You correctly note that you don’t think anyone is seriously considering treason charges these days.
But might the fact that the very idea seems far-fetched be attributable, at least in part, to the Framers’ foresight? With the protections in the Treason Clause, they prevented treason from becoming the political tool it had been, from time to time, in England.
[OK Comments: Good question, David. I'm not sure. One answer would be that the Republic was far more ensuring than anyone thought, and it's democratic framework channeles political opposition into, well, political opposition, which was not treason. Another answer would be that the government these days circumvents the constitutional protections by prosecuting treason-like offenses through other criminal offenses that are very close to treason but not technically treason.]
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I hadn’t really thought about it, but could there be a crime of treason against a state? It is certainly odd that Article III specifically uses the phrase “Treason against the United States,” implicitly leaving the option that Pennsylvanla, for example, could adopt differing standards for prosecuting “Treason against the Commonwealth.”
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Orin: You say “I don’t think anyone is seriously considering actual treason charges these days”.
I have to beg to differ. Plenty of people are seriously considering actual treason charges these days. If you spend any amount of time in the conservative blogosphere, you’ll find lots of people (Michelle Malkin, various Pajamas Media affiliate bloggers, etc.) who are seriously considering treason charges against various enemies of the Republic. Now, it is true that the people considering the charges aren’t themselves serious people, but that doesn’t mean their consideration of actual treason charges isn’t serious. In fact, it’s scary to see how serious some of their considerations are. It’s a small distinction, but one I thought worth mentioning.
Love the blog, by the way. I don’t know what that Bob Riley character is talking about. Such impertinence!
There was (and is) treason against a state. John Brown was executed for treason against Virginia, not against the U.S.
I see restricting the definition of treason as paired off with outlawing bills of attainder. In the British 17th century experience, kings charged legislators with treason, and Parliament responded by attainting the king’s advisors. The framers deprived both branches of their favorite weapon against the other.
Prof. Kerr:
Regarding the reference to state prosecutions for treason: prior to the Civil War, did not some states have their own statutes regarding treason, and weren’t some persons (John Brown in particular after the Harpers Ferry raid) tried, convicted and executed for treason against a state government (in the case, for treason against the state of Virginia)?
Thanks
Why the treason obsession? It may have a lot to do with being a newly established nation-state. Our sovereignty was insecure at the time. Treason would naturally have been among the most compelling fears of the framers.
Thanks for the post! a quick question — what is the modern history of actual treason cases? have there been any? Was Aldritch Ames convicted of that or of other crimes you allude to? If he wasn’t so you think he should have? And what about the American Taliban folk? Do you think the treason statutes are useful?
[thanks again! a stimulating diversion from my alleged work in a completely unrelated field...]
Bob Riley writes:
“By the way, the Constitution is not bedside reading!”
Sadly, it is not bedside reading for enough of our citizens. Show me another document so concise and yet so brilliant. Time has certainly shown the wisdom of our forefathers [avoidance of slavery issue and Civil War aside...].
As for me, my copy is never far from me, including my nightstand. Must admit, though, I had never made the connection that ‘treason’ was mentioned in Articles 1-4. Nice trivia question for law school students…
In further answer to marc g’s comment above, it should also be noted that it was in fact possible to be charged with Treason against a State rather than the federal government: Witness that, after his failed raid on the arsenal at Harper’s Ferry, John Brown was tried and executed for the crime of Treason against the Commonwealth of Virginia… the thinking ante bellum was analogous in the area of citizenship, where one was first a citizen of a State before he could be considered a citizen of the United States… only after enactment of the Fourteenth Amendment did State citizenship become derivative of federal citizenship: residents of US territory were made Citizens “of the U.S., and [thereby] of the States wherein they reside”
All well and good, but what did “adhering to their Enemies, giving them Aid and Comfort” mean?
There are certainly people being accused of that today, at least as I understand the words in their common usage.
Um, Orin, wasn’t the treason trial of Burr essentially political?
[OK Comment: It depends what you mean by "essentially political." Based on what I have read, the merits of the charges against him today remain frustratingy unclear."]
Why should Article IV necessarily refer to treason against the United States? I think a more obvious answer is that treason could be against an individual state, which would have jurisdiction under state law. Article IV then allows for extradition back to the state. Note that the Article III definition is carefully worded as “treason against the United States,” not just “treason.” That implies that treason could be against something else, such as an individual state, and that state law (or constitution) could define that treason any way they liked. Only treason “against the United States” is limited by the strict definition of Article III.
From Europes’s Reformation through the Counter-Reformation (200 years, from Luther in 1517 to about the death of Louis XIV), “treason” was no mere figure of political-speech. Countries, populations, served their dynastic rulers’ doctrinal whims, and woe betide any whose Divine Right hierarchs shifted from Protestantism to Rome or the reverse.
National elites faced extirpation, torture and death by Inquisition if not by royal decree, should reigning powers shift confessional allegiances. “Papist plots” against Elizabeth I necessitated a brutal secret-police surveillance; had one succeeded –nevermind the Armada– England would have faced civil war at minimum, a socio-cultural holocaust of so-called Anglican Episcopals from Henry VIII’s break with Rome, his destruction of the monasteries, in 1537.
Treason in those days linked intimately to assassination and rebellion. America’s most explicit brush with classic linkages was Booth’s murder of Abe Lincoln in sympathy with Secessionist slaveholders (1865).
(edited by OK)
Question concerning OK’s response to David: Have there been any state or federal court decisions throwing out statues that were found to be passed to circumvent the constitutional definition of treason or its two witness/open court confession requirement? One would think that the Apprendi/Booker court won’t tolerate evasion of constitutional provisions by mere relabling, and it would be intresting to see if the conservative Apprendi justices would put their money where their pen is, by striking down such a statute, should it come before them in the face of some legitimate purpose claim put before them by the SG or state counterpart. Note that that the Conservative justices of the Apprendi court have nearly always deferred to the government’s claim of legitimate purpose, where the purpose is one that conservatives support. (See e.g. Smith v. Doe and McKune v. Lile).
I think the explanation is more complicated than this, no? I’m trying to think back to my legal history course, but I believe you do us a disservice by not asking, “Why isn’t treason just subsumed into ‘felony’ all the times felony is mentioned?” You’re right that the Art. III s. 3 requirement of corroborative testimony on a single overt act has to do with abusive treason prosecutions in England (Sir Walter Raleigh especially, I think). But otherwise, I think the point is that different procedures applied to treason and felonies at common law; one was governed by the Marian statutes and one was not; treason had been tried in Star Chamber (really an EXECUTIVE court) while felonies were tried in ordinary crown courts; etc. So yes, treason was a big deal in pre-1789 England, but *procedurally*, not only substantively.
Orrin,
In England, Treason was to act against the King or the King’s Constitution (which, as Blackstone notes, even the King can commit treason against, and by so doing, abdicates his throne, this was used against both Charles (by Cromwell) and James(in the Glorious Revolution)). Thus, Treason under the US Constitution should be regarded not just as a matter of colluding with or spying for our enemies, it is also any act subverting the Constitution, or violating one’s oath of office. Thus, a senator who fails to “protect and defend the Constitution of the United States from all enemies, foreign AND domestic”, becomes an enemy of the Constitution themselves and commits treason, particularly when they pass facially void laws.
Furhter to Marc G’s question, I know that there is still a statute prohibiting treason against the State of California in the state penal code — I think it also purports to criminalize treason against the United States as well (query whether the latter is preempted by federal statute or by the constitution itself).
Marc G.:
Most states have clauses in thier constitutions which do spell out treason against the individual state.
The last and only treason-against-the-state-but-not-the-United-States I can recall is Dorr’s Rebellion when Rhode Island had in effect 2 separate governments.
http://en.wikipedia.org/wiki/Dorr's_Rebellion
Montesquieu notes the importance of defining treason in “The Spirit of the Laws”, the most important literary influence on the Framers. I would trace the preoccupation with treason back to this source.
Another answer would be that the government these days circumvents the constitutional protections by prosecuting treason-like offenses through other criminal offenses that are very close to treason but not technically treason.
Which raises the interesting question of how similar a crime has to be to treason before it becomes consitutitonally identical and Article IV kicks in. Obviously, they couldn’t just start calling it “Treason-1″ and get away with it — but how close does the government have to get?
I think there are a number of reasons why treason is not such a big deal today as it was at the framing.
First, the focus on a crime will tend to be commensurate with the threat posed by the crime. Acts of treason were existential threats to the English monarchy- in modern times, the thought of say, a Senator or cabinet minister allying with a foreign power to seize the presidency is simply unthinkable. That was certainly not the case in 17th and 18th century Britain. More to the point, modern acts that could pass muster as genuine treason (Jihad Johny Lindh comes to mind) are not existential threats to the political order. Yes, they can cause serious damage to the interests of the country, but they don’t fundamentally threaten the continued existence of the Constitutional order (the Rosenbergs being a possible exception, but then again, a Treason conviction wouldn’t have made their punishment more severe).
The other reason I think treason is not the big deal it was back at the founding is that for many people today, punishing treason is morally problematic. Lots of people have qualms with the idea that citizenship carries with it the duty to give allegiance to your country. I can’t find a link to it, but sometime in the last 2 years a British newspaper (I want to say the Guardian, but I’m not sure) had a story or series of stories about British citizens fighting with the insurgents in Iraq, and the main punch of the story was “Is Treason wrong?” The modern conception of freedom-of-conscience can now extend beyond loyal opposition into disloyal opposition (because the state does not have absolute claim to loyalty), and we as a society have trouble punishing people for anything if they can convince us they were following their conscience in good faith.
I’m admittedly generalizing, but suppose we actually did try someone for treason today. How long do you think it would take for the argument among the commentariat to shift from “did he do X” to “should we really punish him for doing X?”
As a subsidiary point, it’s also difficult to charge someone with adhering to an enemy if you have not formally established an enemy by declaring war. While we still use military force, we now do so under use-of-force resolutions rather than declarations of war. This can be appropriate, since usually one of the conceits of our use-of-force is that we are using it in opposition to a regime rather than a whole nation. The idea of making war on a whole nation a la Japan or Germany is anathema to our current moral outlook. We can find it morally acceptable (if just barely) to go to war against the Taliban or against Saddam Hussein, but not against Afghanistan or Iraq. For this reason, it is highly unlikely we will ever declare war formally in the near future, and thus we will not have any formally declared enemies. A U.S. citizen who adheres to someone on the wrong side of a use-of-force authorization seems different from someone who has adhered to someone on the wrong side of a war declaration, even if there is no concrete difference in his actions.
Hugh Bicheno (Rebels and Redcoats: The American Revolutionary War) suggests that many of the “founding fathers” had hedged their bets during the War of Independence by maintaining contact with British agents. That might explain their interest in treason, and in a definition that limits application of the concept.