Constitution of the United States/Art. I/Sec. 9/Clause 8 Titles of Nobility and Foreign Emoluments
Article I Legislative Branch
Section 9 Powers Denied Congress
Clause 8 Titles of Nobility and Foreign Emoluments
|No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.|
Overview of Titles of Nobility and Foreign Emoluments Clauses[edit | edit source]
This provision encompasses two distinct commands. The first half, sometimes called the federal "Title of Nobility Clause," limits the power of the United States by prohibiting it from granting any "title of Nobility." The second half, often referred to as the "Foreign Emoluments Clause," limits the actions of certain federal officers by prohibiting them from accepting "any present, Emolument, Office, or Title, of any kind whatever" from a foreign state, without the consent of Congress.
For most of their history, neither the Title of Nobility Clause nor the Foreign Emoluments Clause have been much discussed or substantively examined by the courts. The meaning and scope of the Foreign Emoluments Clause have been examined in opinions from the Department of Justice's Office of Legal Counsel and the Comptroller General of the United States concerning the obligations of federal officers with respect to gifts, salaries, awards, and other potential emoluments from foreign sources. During the administration of President Donald Trump, the lower federal courts for the first time issued substantive--but often conflicting--decisions interpreting the Foreign Emoluments Clause.
Historical Background on Foreign Emoluments Clause[edit | edit source]
The Foreign Emoluments Clause's basic purpose is to prevent corruption and limit foreign influence on federal officers. At the Constitutional Convention, Charles Pinckney of South Carolina introduced the language that became the Foreign Emoluments Clause based on "the necessity of preserving foreign Ministers & other officers of the U.S. independent of external influence." The Convention approved the Clause unanimously without noted debate. During the ratification debates, Edmund Randolph of Virginia, a key figure at the Convention, explained that the Foreign Emoluments Clause was intended to "prevent corruption" by "prohibit[ing] any one in office from receiving or holding any emoluments from foreign states."
The Foreign Emoluments Clause reflected the Framers' experience with the then-customary European practice of giving gifts to foreign diplomats. Following the example of the Dutch Republic, which prohibited its ministers from receiving foreign gifts in 1651, the Articles of Confederation provided: "any person holding any office of profit or trust under the United States, or any of them" shall not "accept of any present, emolument, office, or title of any kind whatever, from any king, prince, or foreign state." The Foreign Emoluments Clause largely tracks this language from the Articles, although there are some differences.
During the Articles period, American diplomats struggled with how to balance their legal obligations and desire to avoid the appearance of corruption, against prevailing European norms and the diplomats' wish to not offend their host country. A well-known example from this period, which appears to have influenced the Framers of the Emoluments Clause, involved the King of France's gift of an opulent snuff box to Benjamin Franklin. Concerned that receipt of this gift would be perceived as corrupting and violate the Articles of Confederation, Franklin sought (and received) congressional approval to keep the gift. Following this precedent, the Foreign Emoluments Clause prohibits federal officers from accepting foreign presents, offices, titles, or emoluments, unless Congress consents.
The Foreign Emoluments Clause thus provides a role for Congress in determining the propriety of foreign emoluments. Under this authority, Congress has in the past provided consent to the receipt of particular presents, emoluments, and decorations through public or private bills, or by enacting general rules governing the receipt of gifts by federal officers from foreign governments. For example, in 1966, Congress enacted the Foreign Gifts and Decorations Act, which provided general congressional consent for foreign gifts of minimal value, as well as conditional authorization for acceptance of gifts on behalf of the United States in some cases.
Several Presidents in the nineteenth century--such as Andrew Jackson, Martin Van Buren, John Tyler, and Benjamin Harrison--notified Congress of foreign presents they received, and either placed the gifts at Congress's disposal or obtained consent for their acceptance. Other nineteenth century Presidents treated presents they received as "gifts to the United States, rather than as personal gifts." Thus, in one instance, President Lincoln accepted a foreign gift on behalf of the United States and then deposited it with the Department of State. In the twentieth century, some Presidents sought the advice of the Department of Justice's Office of Legal Counsel on whether acceptance of particular honors or benefits would violate the Emoluments Clauses.
Foreign Emoluments Clause Generally[edit | edit source]
For most of its history, courts have rarely substantively analyzed or interpreted the Foreign Emoluments Clause. During the administration of President Donald Trump, however, a number of private parties, state attorneys general, and Members of Congress sued the President based on alleged violations of both the Foreign Emoluments Clause and the Domestic Emoluments Clause (collectively, the Emoluments Clauses). Three major federal lawsuits concerning the Emoluments Clauses were filed against President Trump. Over nearly four years, these cases progressed through the lower federal courts, resulting in the first significant judicial decisions on the Emoluments Clauses.
In late 2020, the Supreme Court denied review in one of these cases, and--after the end of President Trump's term in January 2021--instructed two federal appellate courts to vacate their judgments and dismiss the other two cases as moot. As a result, most of the lower court decisions on the Emoluments Clauses have been vacated. In the absence of definitive precedent from the Supreme Court, this section reviews these lower court holdings regarding the meaning and scope of the Emoluments Clauses, although they generally retain at most persuasive, and not precedential, value.
In the three cases, plaintiffs alleged that President Trump's retention of certain business and financial interests during his Presidency violated the Emoluments Clauses. For example, because President Trump retained an ownership interest in the Trump International Hotel, plaintiffs alleged he received constitutionally forbidden "emoluments" when foreign or state governments paid for their officials to stay at the Hotel. In a series of rulings, the lower courts addressed three main issues: (1) who has standing to assert Emoluments Clause violations; (2) whether the President and other elected officials are subject to the Foreign Emoluments Clause; and (3) the meaning and scope of the term "emolument."
On the standing-to-sue issue, the U.S. Court of Appeals for the District of Columbia Circuit held that individual Members of Congress lacked standing to sue based on alleged injuries to the legislature as a whole (namely, the deprivation of an opportunity to vote on whether to consent to the acceptance of foreign emoluments). As to the standing of private individuals, the U.S. Court of Appeals for the Second Circuit held that hospitality-industry plaintiffs had standing based on a theory of competitive harm resulting from the allegedly unlawful acceptance of emoluments. However, a number of judges on the Second Circuit dissented from this holding and the Supreme Court subsequently vacated the decision as moot.
On the second issue, commentators have debated whether federal elected officials hold an "Office of Profit or Trust" under the United States are thus subject to the Foreign Emoluments Clause. The Department of Justice's Office of Legal Counsel (OLC), which has developed a body of opinions on the Emoluments Clauses, has opined that the President "surely" holds an office of profit and trust under the Constitution. In litigation, President Trump did not dispute that he was subject to the Foreign Emoluments Clause, and the only lower court to directly reach the issue agreed with the OLC's view. However, that holding was subsequently vacated.
The final litigated issue was the meaning and scope of the term "emolument" as used in the Emoluments Clauses--particularly, whether it includes private, arm's-length market transactions. In the litigation, President Trump argued that "emoluments" included only benefits received by an officeholder in return for official action or through his office or employment. Plaintiffs urged that "emoluments" be defined more broadly to apply to any "profit, gain, or advantage" received by the President from a foreign or domestic government. The two district courts that reached the issue adopted the plaintiffs' broader definition of "emolument," although the appellate courts subsequently vacated those decisions.
Titles of Nobility and the Constitution[edit | edit source]
The Constitution's prohibition on titles of nobility reflects both "the American aversion to aristocracy" and the republican character of the government established by the Constitution. The Clause thus complements other constitutional provisions--most notably the Thirteenth, Fourteenth, and Fifteenth Amendments--that prohibit invidious governmental distinctions between classes of American citizens.
The Articles of Confederation and many Revolutionary-era state constitutions contained prohibitions of titles of nobility and other systems of hereditary privilege. The federal Title of Nobility Clause substantially follows the Articles' prohibition and was not a subject of significant debate at the Constitutional Convention. As James Madison observed in the Federalist No. 44: "The prohibition with respect to titles of nobility is copied from the articles of Confederation and needs no comment." Alexander Hamilton, in the Federalist No. 84, was only slightly more loquacious:
Nothing need be said to illustrate the importance of the prohibition of titles of nobility. This may truly be denominated the corner-stone of republican government; for so long as they are excluded, there can never be serious danger that the government will be any other than that of the people.The Federalist No. 84 (Alexander Hamilton); accord The Federalist No. 39 (James Madison) ("Could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility . . . ").
Very few courts have had occasion to interpret the meaning of the federal Title of Nobility Clause. The Supreme Court has only discussed the Title of Nobility Clause in passing, as when Justices cite the Clause to make a rhetorical point in a concurring or dissenting opinion.
How broadly to understand the Title of Nobility Clause's prohibition thus remains an open, if perhaps academic, question. On a narrow reading, the Clause merely prohibits a federal system of hereditary privilege along the lines of the British aristocratic system. More broadly understood, the Clause could preclude other governmental grants of enduring favor or disfavor to particular classes based on birth or other non-merit-based criteria. Some commentators have suggested, for example, that the Title of Nobility Clause might forbid admission preferences for legacy students at state universities or certain benefits that accompany receipt of the Medal of Honor. After the adoption of the Fourteenth Amendment, challenges to governmental favoritism based on class, race, or other bases have usually relied on the Equal Protection Clause.
- See, e.g., Mark R. Killenbeck, The Physics of Federalism, 51 U. Kan. L. Rev. 1, 7 (2002) (using the term "Title of Nobility Clause" to refer to this provision). More often, the collective terms "Title of Nobility Clauses" or "Nobility Clauses" are used to refer to both this provision and the parallel prohibition on state-granted titles of nobility in the following section. See Art. I, Sec. 10, Clause 1 Proscribed Powers ("No state shall . . . grant any Title of Nobility."); see, e.g., Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 Harv. L. Rev. 26, 131 (2000) (using the term "Title of Nobility Clauses" to refer to these two prohibitions); J.M. Balkin, The Constitution of Status, 106 Yale L.J. 2313, 2349 (1997) (same).
- See, e.g., Deborah Samuel Sills, The Foreign Emoluments Clause: Protecting Our National Security Interests, 26 J.L. & Pol'y 63 (2018); Amandeep S. Grewal, The Foreign Emoluments Clause and the Chief Executive, 102 Minn. L. Rev. 639 (2017); Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U.L. Rev. Colloquy 180 (2013). The usage "Foreign Emoluments Clause" distinguishes Article I, Section 9, Clause 8 from another clause governing the emoluments that the President in particular may receive, sometimes called the "Domestic Emoluments Clause." See Art. II, Sec. 1, Cl. 7: Emoluments Clause and Presidential Compensation.
- See generally Michael A. Foster & Kevin J. Hickey, Cong. Rsch. Serv., R45992, The Emoluments Clauses and the Presidency: Background and Recent Developments 1 (2019) ("For most of their history, the Foreign and Domestic Emoluments Clauses . . . were little discussed and largely unexamined by the courts."); Manley W. Roberts, The Nobility Clauses: Rediscovering the Cornerstone, 1 J. Attenuated Subtleties 20, 21 (1982), reprinted in 9 J.L.: Periodical Lab'y of Leg. Scholarship 102, 103 (2019) ("For two centuries the courts . . . said nothing about the [Title of] Nobility Clauses.").
- See, e.g., Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President's Receipt of the Nobel Peace Prize, 33 Op. O.L.C. 1 (2009); Proposal that the President Accept Honorary Irish Citizenship, 1 Op. O.L.C. Supp. 278 (1963); In re Retired Uniformed Service Members Receiving Compensation from Foreign Governments, 58 Comp. Gen. 487 (1979).
- See Art. I, Sec. 9, Cl. 8: Foreign Emoluments Clause Generally.
- 2 The Records of the Federal Convention of 1787, at 389 (Max Farrand ed., 1911) [hereinafter Farrand's Records] (Madison's notes).
- See 3 Farrand's Records, supra note here, at 327; accord Joseph Story, 3 Commentaries on the Constitution of the United States 215-16 (1st ed. 1833) ("[The Foreign Emoluments Clause] is founded in a just jealousy of foreign influence of every sort.").
- See generally Deborah Samuel Sills, The Foreign Emoluments Clause: Protecting Our National Security Interests, 26 J.L. & Pol'y 63, 69-72 (2018); Robert G. Natelson, The Original Meaning of "Emoluments" in the Constitution, 52 Ga. L. Rev. 1, 37, 43-45 (2017); Zephyr Teachout, Gifts, Offices, and Corruption, 107 Nw. U.L. Rev. Colloquy 30, 33-35 (2012).
- See Zephyr Teachout, Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United 20-21 (2014) (citing 4 John Bassett Moore, A Digest of International Law 579 (1906)).
- Articles of Confederation of 1781, art. VI, ¶ 1.
- Two differences are notable. First, unlike the corresponding provision in the Articles, the Foreign Emoluments Clause expressly provides that Congress may consent to a federal official's receipt of emoluments. See Art. I, Sec. 9, Clause 8 Titles of Nobility and Foreign Emoluments. Second, the Articles expressly reached state officeholders as well as federal ones, while the Foreign Emoluments Clause does not. Articles of Confederation of 1781, art. VI, ¶ 1; see also Natelson, supra note here, at 37-38 (discussing these differences); Seth Barrett Tillman, Citizens United and the Scope of Professor Teachout's Anti-Corruption Principle, 107 Nw. U.L. Rev. Colloquy 1, 5 (2012) (same).
- See generally Teachout, supra note here, at 20-26; Natelson, supra note here, at 43-45.
- As Edmund Randolph recounted to the Virginia ratifying convention:An accident which actually happened, operated in producing the [Foreign Emoluments Clause]. A box was presented to our ambassador by the king of [France]. It was thought proper, in order to exclude corruption and foreign influence, to prohibit any one in office from receiving or holding any emoluments from foreign states. . . . [I]f at that moment, when we were in harmony with the king of France, we had supposed that he was corrupting our ambassador, it might have disturbed that confidence . . . .3 Farrand's Records, supra note here, at 327. It is unclear whether Randolph was referring to the snuff box gifted to Franklin, or a similar gift made to Arthur Lee, an American envoy to France during this same period. See Teachout, supra note here, at 35.
- See Teachout, supra note here, at 25-26.
- See id.; Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. O.L.C. 13, 16 n.4 (1994).
- Art. I, Sec. 9, Clause 8 Titles of Nobility and Foreign Emoluments.
- See generally S. Rep. No. 89-1160, at 1-2 (1966) ("In the past, the approval of Congress, as required by [the Foreign Emoluments Clause], has taken the form of public or private bills, authorizing an individual or group of individuals to accept decorations or gifts.").
- See, e.g., Act of Jan. 31, 1881, ch. 32, § 3, 21 Stat. 603, 603-04 (1881) (authorizing certain named persons to accept presents from foreign governments, and requiring that "hereafter, any presents, decoration, or other thing, which shall be conferred or presented by any foreign government to any officer of the United States . . . shall be tendered through the Department of State").
- See Pub. L. No. 89-673, 80 Stat. 952 (1966) (codified as amended at 5 U.S.C. § 7342).
- A Compilation of the Messages and Papers of the Presidents 1789-1902, at 466-67 (James Richardson, ed., 1907) (January 19, 1830 letter from President Jackson to the Senate and House of Representatives stating that the Constitution prohibited his acceptance of a medal from Simon Bolivar, and therefore placing the medal "at disposal of Congress").
- S.J. Res. 4, 26th Cong., 5 Stat. 409 (1840) (joint resolution of Congress authorizing President Van Buren to dispose of presents given to him by the Imam of Muscat and deposit the proceeds in the Treasury).
- S. Journal, 28th Cong. 254 (1844) (authorizing sale of two horses presented to the United States by the Imam of Muscat); see also Teachout, supra note here, at 42 (discussing the Van Buren and Tyler precedents); Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U.L. Rev. Colloquy 180, 190 (2013) (same).
- Pub. Res. 54-39, 29 Stat. 759 (1896) (congressional resolution authorizing delivery of Brazilian and Spanish medals to former President Benjamin Harrison).
- See Proposal that the President Accept Honorary Irish Citizenship, 1 Op. O.L.C. Supp. 278, 281 (1963).
- See Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President's Receipt of the Nobel Peace Prize, 33 Op. O.L.C. 1, 4, 7-9 (2009) (concluding that acceptance of the Nobel Peace Prize does not violate the Foreign Emoluments Clause because it is awarded by a private organization, not a foreign government); President Reagan's Ability to Receive Retirement Benefits from the State of California, Op. O.L.C. 187, 189-92 (1981) (concluding that retirement benefits are not "emoluments" under the Domestic Emoluments Clause because they "are neither gifts nor compensation for services" and would not subject the President to improper influence); Honorary Irish Citizenship, 1 Op. O.L.C. Supp. at 278 (concluding that President's acceptance of even "honorary" Irish citizenship would violate "the spirit, if not the letter" of the Foreign Emoluments Clause).
- See Michael A. Foster & Kevin J. Hickey, Cong. Rsch. Serv., R45992, The Emoluments Clauses and the Presidency: Background and Recent Developments 1 (2019). Like the Title of Nobility Clause, the Foreign Emoluments Clause is occasionally cited by the Supreme Court in passing to make a rhetorical point. See, e.g., Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 424 n.51 (2010) (Stevens, J., concurring in part and dissenting in part) (citing Foreign Emoluments Clause to argue that the "notion that Congress might lack the authority to distinguish foreigners from citizens in the regulation of electioneering would certainly have surprised the Framers"); Roe v. Wade, 410 U.S. 113, 157 (1973) (noting that the Emoluments Clause, along with a number of other constitutional provisions, uses the term "Person" without "pre-natal application").
- See Art. II, Sec. 1, Cl. 7: Emoluments Clause and Presidential Compensation.
- See Complaint, Citizens for Resp. & Ethics in Washington (CREW) v. Trump, No. 1:17-cv-00458-RA (S.D.N.Y. Jan. 23, 2017); Complaint, Blumenthal v. Trump, No. 1:17-cv-01154-EGS (D.D.C. June 14, 2017); Complaint, District of Columbia v. Trump, No. 8:17-cv-01596-PJM (D. Md. June 12, 2017).
- Blumenthal v. Trump, 949 F.3d 14 (D.C. Cir. 2020), cert. denied, 141 S. Ct. 553 (U.S. 2020).
- See CREW v. Trump, 953 F.3d 178 (2d Cir. 2019), vacated, No. 20-330, 2021 WL 231541 (U.S. Jan. 25, 2021); In re Trump, 958 F.3d 274 (4th Cir. 2020) (en banc), vacated sub nom., Trump v. District of Columbia, No. 20-331, 2021 WL 231542 (U.S. Jan. 25, 2021).
- An exception is the District of Columbia Circuit's opinion on legislative standing, which remains good law. See Blumenthal, 949 F.3d 14.
- See Persuasive Authority, Black's Law Dictionary (11th ed. 2019) ("Authority that carries some weight but is not binding on a court . . . .").
- See, e.g., CREW v. Trump, 276 F. Supp. 3d 174, 182 (S.D.N.Y. 2017) (reviewing plaintiffs' allegations), vacated and remanded, 953 F.3d 178 (2d Cir. 2019), judgment vacated, No. 20-330, 2021 WL 231541 (U.S. Jan. 25, 2021).
- For a fuller examination of these decisions, see Foster & Hickey, supra note here, at 5-18.
- Blumenthal, 949 F.3d at 19-20.
- CREW v. Trump, 953 F.3d 178, 189-200 (2d Cir. 2019), cert. granted, judgment vacated, No. 20-330, 2021 WL 231541 (U.S. Jan. 25, 2021). A district court in Maryland adopted a similar view of competitor standing with respect to state-government plaintiffs. See District of Columbia v. Trump, 291 F. Supp. 3d 725, 740-49 (D. Md. 2018), vacated, 838 F. App'x 789, 790 (4th Cir. 2021).
- See CREW v. Trump, 971 F.3d 102, 102 (2d Cir. 2020) (noted dissents from five judges from the denial of rehearing en banc).
- CREW v. Trump, No. 20-330, 2021 WL 231541 (U.S. Jan. 25, 2021).
- Compare Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U.L. Rev. Colloquy 180, 185-95 (2013) (arguing that the Foreign Emoluments Clause does not apply to elected federal officials), with Zephyr Teachout, Gifts, Offices, and Corruption, 107 Nw. U.L. Rev. Colloquy 30, 39-48 (2012) (disputing this view).
- Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President's Receipt of the Nobel Peace Prize, 33 Op. O.L.C. 1, 4 (2009); see also Proposal that the President Accept Honorary Irish Citizenship, 1 Op. O.L.C. Supp. 278, 278 (1963) (assuming that the Foreign Emoluments Clause applies to the President).
- See, e.g., Blumenthal v. Trump, 373 F. Supp. 3d 191, 196 n.3 (D.D.C. 2019) ("The parties do not dispute that the [Foreign Emoluments] Clause applies to the President."), rev'd on other grounds, Blumenthal v. Trump, 949 F.3d 14 (D.C. Cir. 2020).
- See District of Columbia v. Trump, 315 F. Supp. 3d 875, 882-86 (D. Md. 2018), vacated, 838 F. App'x 789, 790 (4th Cir. 2021).
- District of Columbia v. Trump., 838 F. App'x 789, 790 (4th Cir. 2021).
- See, e.g., Blumenthal, 373 F. Supp. 3d at 196-98.
- See, e.g., id. at 197-98.
- See id. at 199-208; D.C. v. Trump, 315 F. Supp. 3d at 886-904.
- District of Columbia v. Trump, 838 F. App'x 789, 790 (4th Cir. 2021); Blumenthal v. Trump, 949 F.3d 14, 21 (D.C. Cir. 2020), cert. denied, 141 S. Ct. 553 (2020).
- Zobel v. Williams, 457 U.S. 55, 70 n.3 (1982) (Brennan, J., concurring); see also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring) (characterizing Title of Nobility Clauses as reflecting the Constitution's "rejection of dispositions . . . based on blood").
- See The Federalist No. 39 (James Madison); The Federalist No. 84 (Alexander Hamilton).
- See Fullilove v. Klutznick, 448 U.S. 448, 533-55 (1980) (Stevens, J., dissenting) (discussing Title of Nobility Clauses as "one aspect of our commitment to the proposition that the sovereign has a fundamental duty to govern impartially"); J. M. Balkin, The Constitution of Status, 106 Yale L.J. 2313, 2349-52 (1997) (characterizing the Title of Nobility Clauses as among "status-dismantling" constitutional provisions intended "to ensure that nothing like a hereditary monarchy or a hereditary nobility would ever rise up in the United States").
- Articles of Confederation of 1781, art. VI, ¶ 1 ("[N]or shall the United States in Congress assembled, or any of them, grant any title of nobility.").
- See, e.g., Md. Const. of 1776, art. XL ("[N]o title of nobility, or hereditary honours, ought to be granted in this State."); N.C. Const. of 1776, art. XXII ("[N]o hereditary emoluments, privileges or honors ought to be granted or conferred in this State."); Ga. Const. of 1777, art. XI ("[N]or shall any person who holds any title of nobility be entitled to a vote, or be capable of serving as a representative, or hold any post of honor, profit, or trust in this State, whilst such person claims his title of nobility."); Mass. Const. of 1780, art. VI ("No man, or corporation, or association of men, have any other title to obtain advantages, or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public . . . ."); Pa. Const. of 1790, art. IX, § 24 ("[T]he legislature shall not grant any title of nobility or hereditary distinction . . . .").
- See Carlton F.W. Larson, Titles of Nobility, Hereditary Privilege, and the Unconstitutionality of Legacy Preferences in Public School Admissions, 84 Wash. U.L. Rev. 1375, 1401-02 (2006) ("The Nobility Clauses occasioned little debate in the Constitutional Convention itself; indeed, as carry-overs from the Articles of Confederation they were unlikely to be the subject of much comment."); Eugenic Artificial Insemination: A Cure for Mediocrity?, 94 Harv. L. Rev. 1850, 1859 (1981) ("Taken from the Articles of Confederation, the titles of nobility clause was enacted virtually without debate in the Constitutional Convention.").
- The Federalist No. 34 (James Madison).
- There are only a handful of lower court decisions that can be characterized as substantive interpretations of the Clause. See, e.g., State v. Larson, 419 N.W.2d 897, 898 (N.D. 1988) (holding that state issuance of driver's licenses did not confer a title of nobility); United States v. Thomason, 444 F.2d 1094, 1095 (9th Cir. 1971) (holding that military rank system does not constitute a title of nobility); In re Jama, 272 N.Y.S.2d 677, 678 (N.Y. Civ. Ct. 1966) (rejecting application for surname change to "von Jama" based on "spirit and intent" of federal Title of Nobility Clause); see generally Jol A. Silversmith, The "Missing Thirteenth Amendment": Constitutional Nonsense and Titles of Nobility, 8 S. Cal. Interdisc. L.J. 577, 606 n.178 (1999) (collecting cases). A substantial number of these lower-court cases raise the oft-rejected claim that attorneys' or public officials' use of the term "Esquire" violates the Title of Nobility Clause. See, e.g., State v. Casteel, 634 N.W.2d 338, 343 n.6 (Wis. Ct. App. 2001); Williams v. Florida., No. 218CV389FTM29UAM, 2019 WL 858024, at *2 (M.D. Fla. Feb. 22, 2019); Bassoff v. Treanor, Pope & Hughes P.A., No. CV RDB-14-3753, 2015 WL 8757651, at *4 (D. Md. Dec. 15, 2015); see generally Silversmith, supra note here, at 602-07 (addressing this argument).
- See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring) (observing that the Title of Nobility Clause reflects the Constitution's "rejection of dispositions . . . based on blood"); Zobel v. Williams, 457 U.S. 55, 70 n.3 (1982) (Brennan, J., concurring) (noting that both the Title of Nobility Clause and the Fourteenth Amendment forbid "degrees of citizenship"); Fullilove v. Klutznick, 448 U.S. 448, 533-55 (1980) (Stevens, J., dissenting) (discussing the Title of Nobility Clauses as "one aspect of our commitment to the proposition that the sovereign has a fundamental duty to govern impartially"); Mathews v. Lucas, 427 U.S. 495, 521 n.3 (1976) (Stevens, J., dissenting) (arguing that the Title of Nobility Clause "would prohibit the United States from attaching any badge of ignobility to a citizen at birth").As in the Federalist Papers, early mentions of the Clause in Supreme Court opinions treat its meaning as self-explanatory. See, e.g., Briscoe v. Bank of Commonwealth of Kentucky, 36 U.S. 257, 350 (1837) (noting that "title of nobility" is "a term which defines itself"); Sturges v. Crowninshield, 17 U.S. 122, 153 (1819) (characterizing the state Title of Nobility Clause as a "plain prohibition" that is "clearly understood"); accord 3 Joseph Story, Commentaries on the Constitution of the United States 215 (1833) ("[The Title of Nobility] clause seems scarcely to require even a passing notice. As a perfect equality is the basis of all our institutions, state and national, the prohibition against the creation of any titles of nobility seems proper, if not indispensable . . . .").
- See, e.g., Nobility, Black's Law Dictionary (11th ed. 2019) (defining "nobility" with respect to the English peerage system of "dukes, marquises, earls, viscounts, and barons, and their female counterparts," usually associated with land grants and hereditary descent of title and privilege); but see Larson, supra note here, at 1380-82 (arguing the Title of Nobility Clauses' scope extends "beyond the narrow meaning of nobility under English law").
- See Mathews, 427 U.S. at 521 n.3 (Stevens, J., dissenting) (arguing the Title of Nobility Clause would prohibit "any badge of ignobility" imposed by the government to "a citizen at birth"); Richard Delgado, Inequality "From the Top": Applying an Ancient Prohibition to an Emerging Problem of Distributive Justice, 32 UCLA L. Rev. 100, 115-17 (1984) (arguing the Title of Nobility Clauses prohibit state action that confers the "indices of nobility," such an enduring grant of advantage or wealth to a closed class of individuals).This broader reading of the Title of Nobility Clause is in tension, as a matter of original meaning, with the system of chattel slavery prevailing in the American South when the Constitution was ratified. See Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 Harv. L. Rev. 26, 62 (2000) ("In the antebellum South, there were indeed lords and serfs notwithstanding the Nobility Clauses."). This discord between the Constitution's literal textual guarantees and the reality of American slavery at the Founding is not unique to the Title of Nobility Clause. See Amar, supra note here, at 60-63 (examining this issue and noting "[s]lavery seemed to contradict a huge part of the Constitution if read blithely"); Frederick Douglass, The Constitution of the United States: Is it Pro-Slavery or Anti-Slavery? (1860), in Frederick Douglass: Selected Speeches and Writings 338 (Philip S. Foner & Yuval Taylor eds., 2000) ("The Constitution forbids the passing of a bill of attainder . . . a law entailing upon the child the disabilities and hardships imposed upon the parent. Every slave law in America might be repealed on this very ground. The slave is made a slave because his mother is a slave.").
- See, e.g., Larson, supra note here, at 1375, 1425; Manley W. Roberts, The Nobility Clauses: Rediscovering the Cornerstone, 1 J. Attenuated Subtleties 20, 22-23 (1982), reprinted in 9 J.L.: Periodical Lab'y of Leg. Scholarship 102, 104-05 (2019).
- See Fourteenth Amend., Sec. 1: Overview of Race-Based Classifications; Fourteenth Amend., Sec. 1: Overview of Non-Race Based Classifications.