Supreme
Court recently ruled, “the First Amendment protects against the Government; it does not leave us
at the mercy of noblesse oblige.” United States v. Stevens, 559 U.S., 130 S.Ct. 1577, 1591
(2010). As Chief Justice Roberts observed: “The Government’s assurance that it will apply [a
statutory provision] more restrictively than its language provides is pertinent only as an implicit
acknowledgment of the potential constitutional problems with a more natural reading.” Id


In Federalist No. 43, James Madison explained that the Treason Clause was one of the
enumerated powers of the federal government.
21
By defining treason in the Constitution and
placing it in Article III, the founders intended the power to be checked by the judiciary, ruling
out trial by military commission. As Madison noted, the Treason Clause also was designed to
limit the power of the federal government to punish its citizens for “adhering to [the United
States’s] enemies, giving them aid and comfort.” In such cases, Madison warned:
[N]ew-fangled and artificial treasons have been the great engines
by which violent factions, the natural offspring of free
government, have usually wreaked their alternate malignity on
each other. [Id. (emphasis added).]
Therefore, Madison concluded, the Constitutional Convention:
with great judgment, opposed a barrier to this peculiar danger, by
inserting a constitutional definition of the crime, fixing the proof
necessary for conviction of it, and restraining the congress, even in
punishing it, from extending the consequences of guilt beyond the
person of its author. [Id. (emphasis added).]

As Joseph Story observed, there is very good
reason that treason’s “true nature and limits should be exactly ascertained:”
[A] charge of this nature, made against an individual, is deemed so
opprobrious, that, whether just or unjust, it subjects him to
suspicion and hatred; and, in the times of high political
excitement, acts of a very subordinate nature are often, by popular
prejudices ... magnified into this ruinous importance. [2 J. Story,
Commentaries on the Constitution, § 1797, p. 577 (5
th
ed., Little,
Brown: 1891) (emphasis added).]