If you’re looking to nail someone for treason these days, don’t talk to a lawyer. The answer you’ll get will be short and likely disappointing: It’s hard to convict someone of treason and chances are the actions you’re describing won’t qualify for the charge. But if what you’re really trying to express is an emotional response, you’re better off turning to 14th-century Italian literature, not the law.
Legally speaking, treason—at least in the United States—is a narrowly defined crime, and for good reason. Under the British crown, treason could include a wide range of acts, some ambiguous enough to allow questionable or baseless charges. Merely imagining (known as “compassing”) the king’s death, for instance, could be treason. Anne Boleyn, Henry VIII’s second wife, was convicted of treason for adultery (based on pretty flimsy evidence).
And in the American colonies, declaring independence from King George III was itself a treasonous act. Most traitors were punished by being dragged to the gallows, hung, cut down while still alive, their entrails cut out and burned, before finally being decapitated, limbs quartered, and delivered to the king. (Nobility were spared this production and simply beheaded.)
Having escaped this fate themselves, the Founding Fathers wanted to limit the scope of what could be considered treasonous in our new democracy. For that reason, treason is the only crime explicitly defined in the Constitution; it consists “only in levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” Further, conviction for treason requires the testimony of two witnesses or a confession by the accused in open court. In other words, no matter how nefariously you act on behalf of another country against the interests of the United States, you won’t be convicted of treason unless we are at war with that nation and there is adequate proof of the crime.
The moral sin of treason, though, is a different story. And for that, Dante’s Inferno is a useful guide. In Dante’s imagined descent through hell, he reserved the Ninth Circle—the “lowest, blackest, and farthest from Heaven”—for the sin of treachery. The worst sinners, in his underworld, were the traitors—those who betrayed their loved ones, their country, and their God. Betrayal lies at the core of what we label as “treason,” and for Dante, the two concepts would have been synonymous: Dr. Marina Johnston, Associate Director of the Center for Italian Studies at the University of Pennsylvania, says that the origin of the Italian tradire (to betray) is “turning someone over to the enemy, outside the space of trust of one’s family, party, and country, breaking their covenant with God.”
Dante’s punishment for treachery, while less gruesome than the English version, was more fitting for the crime. Traitors in the Ninth Circle lie buried in a lake of ice formed by the tears of Lucifer, the angel who betrayed God. Lucifer’s flapping wings keep the lake frozen solid so the guilty cannot move, and freeze the tears of those who try to weep. In committing treachery, Dante believed, these sinners deliberately broke the bonds of love and human fellowship, and are therefore condemned to an icy landscape that lacks the warmth created by the heart. So cold-blooded are the sinners in this circle that some of their souls are punished in hell even as they remain alive on earth.
Ironically, Dante himself was falsely accused of treason. While serving as a city prior in 1302, Dante was accused of corruption and financial wrongdoing by a rival political party in Florence; his enemies used his presence in Rome at the time as proof that he had absconded the law, confiscating his property and sentencing him to death if he returned. Dante remained in exile for more than 20 years—during which time he wrote the Inferno. His condemnation of traitors to the worst suffering possible no doubt reflects, in part, the psychological pain he experienced after being betrayed by his countrymen. (Better late than never, the city of Florence reversed his sentence in 2008.)
Because treason is something we feel so viscerally, limiting its expression in the law is a good thing. Until the 1970s, for example, several states legally permitted a man to kill the paramour of his wife if he caught them having sex—apparently on the premise that it would be perfectly natural to react violently when betrayed in love. More recently, political leaders have questioned the loyalty and patriotism of those who don’t stand for the national anthem. What constitutes treason lies in the heart of the beholder, and the framers of the Constitution wisely recognized that relying on lawmakers’ hearts isn’t the best way to rule a democratic society.
Even so, it can be disheartening to realize that the law won’t necessarily serve justice on those you perceive as engaging in traitorous acts against the United States. And finding the words to describe your outrage can be difficult. So, as a lawyer, I give you permission to still call it “treason”—as long as you remember that the guilty parties will receive their icy deserts only in the afterlife.