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Treason Under the Constitution
Mon Sep 17, 2007 11:39

The Declaration of Independence, U.S. Constitution, Bill of Rights

Treason Under the Constitution

(a) General Policy

The doctrinal development of the law of "treason" after the adoption of the Constitution is contributed primarily by the judges; treatise discussions are scissors and paste-pot affairs, or horn-book recitations of question-begging generalities. The judges, however, shine mainly by comparison. In view of the potentialities for good and evil in the instrument of treason prosecutions, it is surprising how little judicial imagination has been stirred to clarifying analysis in such cases as have presented themselves. Indeed the American cases have on the whole served little more than to annotate the doctrine which was, explicitly or implicitly, in the seventeenth and eighteenth-century English treatises. When the Supreme Court at the present Term reviewed for the first time a conviction of treason in Cramer v. United States,1 it divided five to four on the law of the case. The majority opinion, moreover, in its efforts to develop the implications of the constitutional definition of the crime, either invented some bad law or added confusion to an already muddled subject. Perhaps this continuing lack of helpful judicial exploration in the field may be explained by the fact that after the nineteenth century the executive and legislative branches no longer considered the treason charge as the principal bulwark of state security. There have been less than two score treason prosecutions pressed to trial by the Federal government; there has been no execution on a federal treason conviction; and the Executive has commonly intervened to pardon, or at least mitigate the sentence of those convicted. In the states this trend is even more marked. The trials of Thomas Dorr, and of John Brown, for treason by levying war against the states of Rhode Island and Virginia, respectively, are the only completed treason prosecutions by state authorities. As the Supreme Court observed in the Cramer case, "We have managed to do without treason prosecutions to a degree that probably would be impossible except while a people was singularly confident of external security and internal stability."2

The policy most frequently expressed in judicial opinions, and one consistent with the history of treason prosecutions, has been, pursuant to the wisdom of the framers, one of careful restriction of the scope of the crime. It is now made clear, in Cramer v. United States, that this historic policy should be viewed as taking two forms: it both bans the addition of new categories of subversive conduct to the two branches of "treason" stated in the Constitution, and limits the kinds of conduct which may be charged under either of those two branches.3

Some opinions have simply praised the constitutional provision for giving "definite" meaning to the offense.4 Other opinions, by undertaking to explain the reasons behind the restrictive policy, furnish a little more light, even if they remain vague as to the tangible forms of the application of that policy. Three explanations are advanced. The one nearest to the familiar English doctrine justifies a restrictive policy by the inherent danger, if the contours of the crime are vague and ill-defined, of abuse of treason prosecutions by the authorities and the resulting intimidation of citizens. This is a broader ground of policy than the more specific fear that "treason" prosecutions may be used in the rough and tumble of domestic faction; and suggests a general public interest in a reasonable certainty as to the extent of political crimes, so that men may speak and act their political roles with proper freedom and live with a decent sense of security. Speaking for the Court in Ex parte Bollman, Mr. Chief Justice Marshall declared that

to prevent the possibility of those calamities which result from the extension of treason to offences of minor importance, that great fundamental law which defines and limits the various departments of our government, has given a rule on the subject both to the legislature and the courts of America, which neither can be permitted to transcend.5

Other, and more specific explanations consider two other "kinds of dangers against which the framers were concerned to guard the treason offense," which the Court in the Cramer case describes as "(1) perversion by established authority to repress peaceful political opposition; and (2) conviction of the innocent as a result of perjury, passion, or inadequate evidence."6

A calculating use of the convenient vagueness of "treason" charges against foes in domestic factionalism seems the characteristic abuse of the charge of levying war. In this aspect, a restrictive definition serves the policy of preserving the free, nonviolent competition of interests in political, social, and economic life. With his usual capacity for casting out varied, suggestive lines for doctrinal development, Mr. Chief Justice Marshall, in ruling on the motion for commitment of Burr, indicated that the dangers of political factions underlay the constitutional limits set to the crime of treason:

As this is the most atrocious offence which can be committed against the political body, so is it the charge which is most capable of being employed as the instrument of those malignant and vindictive passions which may rage in the bosoms of contending parties struggling for power. It is that of which the people of America have been most jealous, and therefore, while other crimes are unnoticed, they have refused to trust the national legislature with the definition of this....7


The Declaration of Independence, U.S. Constitution, Bill of Rights


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