Treason and the US Constitution

The History Of Treason

Treason as a crime has probably existed for as long as there have been governments. The broadest meaning of treason is attacking or betraying a governmental authority to which one owes allegiance. The word originally comes from the Latin verb tradere, which means “hand over” and refers to Christians who handed other Christians over to the Roman authorities.

Treason is a crime that is specifically mentioned in the US constitution.

Traditionally, treason has meant any act against a governing authority and was punishable by death. A common pre-modern definition of treason meant actions against the king, usually in the context of a kingdom’s internal politics. Treason could include criticizing the monarch, siding with a faction that opposed the monarch’s policies, or even sleeping with the king’s wife!

Queens have been executed for adultery as a treasonous act. It was very common in English politics to have both sides accusing the other of treason, with trials, persecutions, and executions of dissenters by those in power.

Treason In The Constitution

Treason is the only crime defined in the United States Constitution. The reason treason is defined there and defined so narrowly is to avoid the abuses perpetrated by governments in Europe and England.

In debates during the creation of the Constitution, the primary concern was not to draft a law that would allow the government to prosecute traitors but to prevent “the numerous and dangerous excrescences” which had been a feature of the English and European laws of treason.

The founding fathers wanted to make sure that political divisions within the country not be escalated into charges of treason, with death for the dissenters as the ultimate penalty.

Their solution, Article 3, Section 3 of the United States Constitution, 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.”

This wording in the Constitution stops Congress from expanding the definition of treason or lowering the standard of proof for prosecution.

This is a clear departure from earlier treason laws in several ways. First, it turns the focus of treason from a largely internal matter to an external one, dealing with foreign enemies. Also, no treason charge may be brought when the proof is just one person’s word against another.

Who Can Be Tried For Treason?

To be tried for treason, one needs to owe allegiance to the government. For example, there is a case of a slave Billy who was sentenced for treason against Virginia. This is because he sided with the British during the American Revolution.

His conviction was voided by Virginia governor Thomas Jefferson because, as a slave, Billy owed no allegiance to the United States or Virginia.

This does not mean that only citizens can be prosecuted. For example, a foreign resident who lives, works, and pays taxes in the United States would be considered to owe allegiance for the benefits he is receiving as a permanent or long-term resident.

Levying War

The first act in the Constitution that can be considered treason against the United States is the act of “levying war.” However, the most famous trial for treason in United States history shows how narrowly this is interpreted.

The case of Ex parte Bollman & Swarthout(1807) dealt with two conspirators in Aaron Burr’s alleged plot to overthrow the government in New Orleans by force.

The court, in this case, held that recruiting men, making plans, and making maps to overthrow the government was not enough for a conviction of treason. Instead, there needed to be an actual assemblage of troops with the intent to commence the overthrow.

Aid And Comfort

The second act that the Constitution defines as treason is

“adhering to their Enemies, giving them Aid and Comfort”

This has also been very narrowly construed. A person may adhere to the enemy by being a sympathizer or favoring their cause, but if no action can be considered aid or comfort, then there is no treason.

At the same time, there can be acts that give aid or comfort to the enemy, but if there is no intent to adhere to them, there is also no treason. For instance, someone can call for a strike in a weapons factory during wartime, which aids the enemy by delaying the arming of troops. However, if the intent was to get higher wages for the factory workers, not to help the enemy, they are not adhering to the enemy, and there is no treason.

There must be both a desire to help the enemy and an overt act.


The Founder Fathers succeeded in their goals. As a result, treason trials in the United States are very rare. Since the ratification of the Constitution, there have been fewer than forty Federal treason trials.


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