By Tim Lynch | October 15th, 2019 |
In recent weeks, the word “treason” has been thrown around by everybody from politicians to media outlets to common citizens. It has become evident to me that people are using this word without understanding the true meaning of it, the implications it bears, and the consequences of using it out of place. This is a lesson that apparently both my liberal and conservative friends need to learn, so buckle up.
United States Constitution, Article III, 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.”
Let’s unpack this. First, it is important to remember that the Constitution is a legal document and some parts of it have meanings deeper than and different from their lay definitions. Second, it’s important to remember it was written over 200 years ago and some words and phrases carried a different meaning then versus now. Therefore, you cannot come to a valid interpretation of this or any article or section of the Constitution if you are reading it through the lens of contemporary parlance
The Constitutional definition of Treason has a few key indicators that can help the reader discern the true and unequivocal meaning:
“Treason against the United States, shall consist only in…”
The operative word here is “only.” In this clause, the framers of the Constitution wanted to ensure this definition could not be changed or subject to legislation, executive action, or judicial interpretation. A charge of treason could only be made against a person who is either…
a) “…levying war against [the United States]”
or
b) “[…] adhering to their enemies, giving them aid and comfort.”
In 1807, then-Chief Justice Marshall of the United States Supreme Court wrote “The term ‘enemies,’ as used in the second clause, according to its settled meaning, at the time the Constitution was adopted, applies only to the subjects of a foreign power in a state of open hostility with us. It does not embrace rebels in insurrection against their own government (Warren, 1918).”
In his 1918 article in the Yale Law Journal entitled “What is giving aid and comfort to the enemy?” Charles Warren extrapolated from Chief Justice Marshall’s decision that “levying war” refers to internal insurrections or organized rebellions against the United States, whereas “adhering to [the United States’] enemies” and “giving them aid and comfort” refers to bearing allegiance to a foreign power engaged in open conflict with the United States. Warren goes on to say that “When those who commit treason by levying war become an organized body politic, however, they may become ‘enemies’ within the purview of the law, and giving aid and comfort to such enemies will constitute treason.”
“Levying war” is fairly simply understood to mean “engaging in insurrection/rebellion.” It is important to note that a warlike intent and execution of that intent is implied, hence the use of the word “war.” It is not merely a rebellion against policies or laws of the State, but open warring action against it which constitutes levying war.
“Giving aid and comfort” is a little less clearly defined, or perhaps more accurately has a more broad definition. Warren cites a treason Statute enacted in Pennsylvania prior to the adoption of the Constitution, which expressly defined aiding and comforting “the enemy,” and it is Warren’s implication that the Constitution’s use of the term should be understood in this sense:
“to aid and assist any enemy . . . by joining the armies of the enemy, or by enlisting, or procuring, or persuading others to enlist for that purpose; or by furnishing such enemies with arms or ammunition, provision, or any other article, or articles, for their aid or comfort, or by carrying on a traitorous correspondence with them.”
“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 operative element of this clause is “overt.” In this case, as discussed by Warren on page 343, the law cannot punish malfeasance of thought, only wrongdoing in action. In other words, “The words ‘overt act’ mean an act of a character susceptible of clear proof and not resting in mere inference or conjecture.”
The reason for this standard is clearly stated by Warren in the same paragraph, as he elaborates that this use of wording is deliberate and used with the aim of ensuring that charges of treason cannot be levied against a person out of “construction or inference,” but rather require more than “mere suspicion.” So no charges of treason can be made against a person without proof of an overt act and, as stated by the Constitution, testimony of two witnesses to that act.
To summarize the last couple of pages of Warren’s article most simply, charges of treason require intent, which is demonstrated in his reference to Reynolds v. United States, stating that “A criminal intent is generally an element of crime, but every man is presumed to intend the necessary and legitimate consequences of what he knowingly does.” Because of the strict definitions of treason outlined above, it can be concluded that the commission of a treasonous act requires ipso facto (by that very fact) knowledge that the act is treasonous, and knowledge that an act is treasonous explicitly infers intent to commit treason.
Lastly, Warren establishes that successful commission of a treasonous act is not necessary for the charge or conviction of treason to be made. A person knowing and intending to engage in overt acts in preparation to levy war against the United States or to render aid, comfort, or allegiance to its “enemies,” as defined above, is and can be convicted as guilty of treason against the United States.
As mentioned very early above, this definition of treason is strict and absolute, and no interpretation varying from this definition constitutes treason under the law. As such, it is ignorant, irresponsible, and wholly inadvisable to make an accusation of treason, whether in common parlance or through formal channels, for any act which cannot meet all of the necessary and sufficient criteria of treason as defined by the Constitution.
I am neither a legal authority nor a Constitutional law expert; I am a private citizen with a deep interest in Constitutional issues and conduct my research independently using widely-available sources. The sources used for this essay can be viewed below:
Sources:
CHARLES WARREN, WHAT IS GIVING AID AND COMFORT TO THE ENEMY?, 27 L.J. (1918). https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi? article=2589&context=ylj
United States Constitution, Article III, Section 3 (1789) https://www.constituteproject.org/constitution/United_States_of_America_1992
© 2019 Tim Lynch, republication without permission prohibited. All rights reserved.
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