Tuesday, April 26, 2016

Constitution Series Part 23: Article III, Section 3

The final section of Article III deals with treason: what it is, and how it is to be punished.


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.
America is a free country, and a democratic one. As such, the definition of treason is by necessity a narrow one. In fact, there are only two acts of treason: waging war against the United States or aiding our nation's enemies. In particular, this clause seems to be protecting the rights of citizens to hold political views contrary to the country at large without being accused of treason. A person can stand in the street and denounce our leaders without being arrested. The ability to speak your mind, debate the law, and work to convince others to disrupt the status quo is not only not treason, it's essential for democracy.

That freedom of speech is only implied in this clause, though. It was made explicit in the Bill of Rights.

However, the clause still leaves us with some important questions: What, exactly, constitutes "levying War" against the United States? And what, exactly, constitutes "Aid and Comfort" to an enemy?

Apparently, levying war against the United States is an incredibly difficult thing to do. A single person taking up arms against the United States isn't committing treason, they're just nuts. A group of people armed against the government may fit the bill, depending on the circumstances: the Whiskey Rebellion of 1794 saw several people convicted of high treason (only to be pardoned by George Washington). The recent Occupation of the Malheur National Wildlife Refuge, on the other hand, though a criminal act, was not considered to be treason. Rather, they were "domestic extremists." Even acts of terrorism in the United States are not considered treason, by the Constitutional definition.

The largest instance of treason by act of war against the United States was the Confederacy during the Civil War. And, in the end, the Confederates were pardoned en masse for their treason, just as the Whiskey Rebellion was.

It's also difficult to provide "Aid and Comfort" to the enemy and get convicted of it. Basically, simply aiding the enemy isn't enough to constitute treason, otherwise any Americans in Doctors Without Borders would be on trial for treason constantly.

To be convicted of treason for aiding the enemy, you would have to aid them directly (via espionage or sabotage) in an act directed against the United States, AND two witnesses would need to testify to witnessing the overt treasonous act, AND there would need to be significant corroborating evidence beyond those witnesses.

As a side note, there is no such thing as "light treason." Doing business with Saddam Hussein, though funny, was not an act of treason by George Bluth, Sr.
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.
Congress determines the punishment for treason, with some exceptions established here.

An attainder, or to be "attainted," literally means to become tainted. Legally, it means that a person is dead in the eyes of the law, having forfeited all rights and property. Historically, this meant that all of their property was forfeited to the government, but according to this clause the property may only be forfeited during the life of the person convicted of treason.

"Corruption of Blood" is an element of attainder in which the attainted person can neither inherit nor leave property to anyone else. Basically, the taint of a traitor was assumed to taint the blood of their family as well, so the family would likewise be made to suffer. This clause, however, rejects that concept; the family, assuming they did not aid in the treason, are presumed innocent and are able to inherit the property of the attainted.

However, this discussion of taint is moot. Congress and the courts have limited the sentence for treason significantly, with death being the harshest punishment. Most people convicted of treason got much lighter sentences than that. Those convicted of treason for the Whiskey Rebellion were pardoned, as were the Confederates after the Civil War. Though some people have been executed for treason, others have been sentenced to execution or life in prison, only to have their sentences reduced later.

I've found a few instances in which people have been executed for treason against the United States after the Constitution was ratified:

William Bruce Mumford was executed in 1862 during the Civil War for tearing down an American Flag in New Orleans. This proved controversial, as at the time the city had not surrendered to the Union, so the city was not yet occupied.

Herbert Hans Haupt was a German-American who, along with seven other men, was trained by the Nazis to sneak into the United States and sabotage weapons manufacturers. They reached the United States, and two of the men immediately defected and turned in the others. Of the six turned in, only Haupt was a United States citizen, so though all six were executed in 1942, only Haupt's execution was for treason. It's not clear if Haupt planned to follow through on the acts of sabotage he was trained for, though, only that sabotage was what he was sent here to do. Upon returning to America, Haupt had immediately gone to his family in Chicago and was living with them when he was arrested.

Julius and Ethel Rosenberg were executed in 1953 for espionage, attempting to pass information about the atomic bomb to the Soviet Union. However, evidence that's been revealed to the public since then suggests that Ethel may have been innocent.

Continue to Part 24: Article IV, Sections 1 and 2

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