Cramer is the 1945 decision of the United States Supreme Court that set a very high evidentiary standard for treason prosecutions. Mr. Crane's article is of particular interest for legal historians because it offers a critique of an interpretation of the decision that the author attributes to James Willard Hurst, the dean of the postwar American legal historians, who prepared a historical brief for the Solicitor General that became the basis for his landmark book, The Law of Treason in the United States (1971).
"Focusing almost exclusively on whether the majority’s decision was consistent with the historical underpinnings and previous judicial interpretations of the overt act clause," Mr. Crane writes, "Hurst implicitly accepts that it was differing views as to history and precedent that led to the opposing conclusions of Justice Jackson and Justice Douglas." That is, Hurst thought Douglas got the meaning of "overt act" in the Treason Clause right and Jackson got it wrong.
Based on considerable research in the justices' papers, Mr. Crane argues that this explanation "cannot fully account for why the Justices voted and divided as they did." He posits that "the Justices were largely influenced by their attitudes on two issues: first, the degree to which Congress may 'circumvent' the Treason Clause by proscribing conduct covered by treason under a different heading and without the same procedural safeguards; and second, the degree to which the Framers intended treason prosecutions to be exceedingly rare and difficult."
Here is the abstract:
In 1945, the United States Supreme Court decided a case involving a treason conviction for the first time in its history: Cramer v. United States. In that case, the Court explained what it meant to give aid and comfort to the enemy and interpreted the meaning of the overt act requirement under the Constitution's Treason Clause. Since the Court's decision, most observers have argued that Cramer's exacting standards made treason too hard to prove, thereby removing it as a potential charging option for federal prosecutors. Notably, between 1954 and 2006, the United States did not indict a single American for treason - the longest such absence in American history. However, in 2006, the United States indicted Adam Gadahn on charges of treason for his participation in several al-Qaeda videotapes. In light of this landmark indictment, this article reexamines the Court's decision in Cramer and its significance. In so doing, it challenges the conventional wisdom on two fronts. First, this article explores what issues motivated the Justices in Cramer. Specifically, it posits that the Court's decision (and division) can be best explained by the Justices' attitudes on two factors that have each been overlooked in previous scholarship: (1) the degree to which Congress may circumvent the Treason Clause by proscribing conduct covered by treason under a different heading and without the same procedural safeguards and (2) the degree to which the Framers intended treason prosecutions to be exceedingly rare and difficult. Second, this article reassesses the significance of Cramer and, in particular, its contribution to the lack of treason charges after 1954. In particular, it argues that while the Court's decision made treason harder to prove, it certainly did not make treason too hard to prove. Furthermore, it asserts that Cramer's most significant contribution was that it expressly held that Congress could criminalize (and the executive could prosecute) treasonous conduct under a separate statutory heading and without the procedural safeguards required by the Constitution's Treason Clause.