“I happen to believe that the Constitution was not just brilliant, but probably inspired,” Mitt Romney told a town-hall meeting in Euclid, Ohio, on Monday. It may be that, like many who like to thump sacred texts, he has simply never read it.
Media commentary has focused on Romney’s flat-footed refusal, or inability, to talk back to a questioner who suggested that President Obama should be “tried for treason” because he is “operating outside the structure of our Constitution.” But it’s worth taking a moment to note that “treason” is a term Americans seem to take lightly these days (Witness Rick Perry’s remark that Fed Chairman Ben Bernanke, a former George W. Bush staffer, would be “almost treasonous,” and perhaps guest of honor at a Texas necktie party, if he used the Fed’s legal authority to try to prevent the economy from falling back into recession).
The Framers didn’t take the term lightly, and their care is reflected in one of the Constitution’s most important, though little-discussed, provisions.
Article III, Section 3, clause 1 of the Constitution says, “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” Notice the word “only.” Right-wing constitutionalists are fond of finding unwritten limits in the Constitution. But here’s a genuine hard limit, one inspired by bitter experience: treason consists “only” of the forbidden acts, both of which involve betrayal in time of war or conflict.
The English law of treason was a good deal broader than that. By the Treason Act of 1351, it was considered treason to “compass or imagine” the death of the King. That meant that even the words, “methinks the King doth not look well” could lead to the forfeiture of all of a subject’s property to the crown, followed by an execution in which his limbs would be torn asunder, after which he would be disemboweled while still living. In his book The Life of the Law: The People and Cases that Have Shaped Our Society, from King Alfred to Rodney King, Alfred H. Knight notes that Edward IV had a grocer executed for saying that his son would be “heir to the Crown.” The luckless merchant meant that his son would inherit the grocery shop, called “the Sign of the Crown,” but no matter; the statutory definition was fulfilled.
It was also treason to levy war against the realm, of course; for that matter, it was treason to sleep with the Queen. Not content with this list of offenses, the common-law courts extended the crime by inventing the idea of “constructive treason”: anything that had a tendency to deprive the King of his authority, for example, was a capital offense. Judges applied this doctrine to, for example, reformers who petitioned Parliament to allow universal suffrage. In 1701, a colonial court sentenced Nicholas Bayard, the former mayor of New York, to disembowelment because he had written to the King complaining of the colonial governor’s corruption. (A subsequent governor remitted the punishment before steel could be interposed ‘twixt gut and bladder.)
The Framers understood that “constructive treason” was a powerful weapon in the hands of government. At the Philadelphia Convention, Gouverneur Morris warned that if the delegates failed, “The scenes of horror attending civil commotion can not be described, and the conclusion of them will be worse than the term of their continuance. The stronger party will then make traytors of the weaker; and the gallows & halter will finish the work of the sword.”
So the Framers prevented government from “making traitors,” and succeeded better than they knew. When in 1806 Thomas Jefferson had his former Vice President Aaron Burr prosecuted for treason, Chief Justice John Marshall construed the law so narrowly that Burr—who was certainly guilty of preparing to “levy war” against the United States—went free. No leader of the Confederacy (which really did “levy war” against the United States) was tried for treason. One Japanese American who served as an interpreter for Japan during World War II was convicted of treason, but later pardoned. Julius and Ethel Rosenberg were prosecuted and executed for espionage, not for treason. Today, one American, Adam Yahiye Gadahn, a native of Oregon who has become a spokesman for Al Qaeda, is under indictment for treason—the first such indictment in half a century.
What’s the relevance for today? The cry of “traitor” is a particularly corrosive one. Senator Joseph R. McCarthy used to like to throw it around to smear American diplomats who foresaw the defeat of Chiang Kai-Shek. We seem to be descending into a new McCarthy era, where a member of the House, Alan West, feels free to accuse “80 to 90” of his fellow Representatives of being members of the Communist Party. (Does anyone think the CPUSA even has 90 members?)
It is immoral and offensive to use treason as a coded term for “someone who views the Commerce Power more broadly than I do” or “someone who differs with me on optimal monetary policy.” Traitors are to be torn to pieces and killed, not just voted out of office. Its increasing use is part and parcel of the rising tide of vulgarity, flowing mostly from the Right, that is swamping political discourse today. It’s too bad Mitt Romney didn’t know what the Constitution says, and use his appearance in Euclid to calm down his supporters. I think those who claim to live by, even pray to, the Constitution should be aware of its language and watch their own.