The Federal Title of Nobility Clause

No Title of Nobility shall be granted by the United States. . . .

—Allyson N. Ho, Elizabeth A. Kiernan, & Michael A. Zarian

Introduction

In the English system, hereditary titles of nobility afforded an elite class certain rights, but after the Revolutionary War, Americans broke sharply from that practice. State constitutions and the Articles of Confederation prohibited granting titles of nobility, and the Constitution would prohibit the federal and state governments from granting titles of nobility.

This principle was essential to the American ideal of republicanism. St. George Tucker observed that “[a] Franklin, or a Washington, need not the pageantry of honours, the glare of titles, nor the pre-eminence of station to distinguish them . . . . Equality of rights . . . precludes not that distinction which superiority in virtue introduces among the citizens of a republic.”¹ Justice Joseph Story wrote that “distinctions between citizens, in regard to rank” would “silently subvert the spirit of independence and personal dignity, which are so often proclaimed to be the best security of a republican government.”²

Alexander Hamilton described the Federal Title of Nobility Clause as the “corner-stone of republican government.” This provision did not occasion much debate during either the Constitutional Convention or the ratification debates, with the main criticism being that the provision did not go far enough. Even today, perhaps because of its absolute clarity, the Federal Title of Nobility Clause is rarely litigated.

History Before 1787

By the mid-eighteenth century, English law divided society into two legal groups, the nobility and the commons. There were five ranks of nobility (Duke, Marquess, Earl, Viscount, Baron) in the United Kingdom, separated by precedence but generally enjoying the same legal rights and privileges.³ These titles were granted by the Crown and were inherited from one generation to another. Holders of noble titles could sit in the House of Lords, one of the two constituent houses of Parliament, and therefore held positions of authority in the legislature by virtue of inheritance.⁴ In addition to their seats in the House of Lords, members of the nobility enjoyed legal protections. These included in all criminal cases the right to be tried by the House of Lords, rather than by a jury of commoners. They also received immunity from arrest in civil cases, including immunity from imprisonment for debt.⁵

The legal rights and privileges of the nobility played little role in pre-revolutionary colonial law because, with a small handful of exceptions, there were very few members of the nobility residing in the Thirteen Colonies. Nevertheless, American commentators attacked the system of noble privileges as part of their rhetorical move against the monarchy and its hereditary principle. Thomas Paine argued in his widely read pamphlet Common Sense that “most wise men, in their private sentiments, have ever treated hereditary right with contempt; yet it is one of those evils, which when once established is not easily removed.”⁶ Revolutionary Americans would enact this sentiment against heritable privilege in constitutions throughout the newly formed states.

After independence, the American states quickly rejected the English system of nobility. John Adams explained to Abigail Adams that “Capacity, Spirit and Zeal in the Cause” rather than hereditary titles would “supply the Place of Fortune, Family, and every other Consideration, which used to have Weight with Mankind.”⁷ Many state constitutions prohibited titles of nobility or conditioned the ability to vote or hold office on relinquishing such titles. Massachusetts, for example, prohibited any person from having “any other title” with “exclusive privileges” that were “distinct from those of the community.”⁸ Georgia barred a person who held a title of nobility from voting or serving in government.⁹

The Articles of Confederation forbade “the united states in congress assembled” from “granting any title of nobility.”¹⁰ Indeed, the Articles, which placed very few limits on the power of states, also prohibited the states from granting titles of nobility.¹¹ This provision of the Articles of Confederation, which demonstrated the strength of the Founders’ objections to titles of nobility, “directly regulated states’ internal governance” more than any other.¹²

These prohibitions were put to the test shortly after independence in the debate over the Society of the Cincinnati. The Society was a private organization intended to serve as an honorary distinction for the officers who had served in the Continental Army during the Revolution.¹³ The Society was open only to the former officers and to their direct descendants. Even though the Society was a private organization with no legal privileges, this hereditary element drew widespread and vociferous criticism.¹⁴ John Adams, then serving as ambassador to France, criticized the Society as an “order of Chivalry” that was “against our Confederation and against the Constitutions of several States” and “against the Spirit of our Governments and the Genius of our People.”¹⁵ Opposition to the Society grew so vociferous that George Washington urged it to “[d]iscontinue the hereditary part in all its connexions,” and threatened to resign if it was not reformed.¹⁶ The Society agreed to reform, and the tumult died down, but the public controversy underscored the public opposition to the English system of heritable rights and distinctions.¹⁷

The Constitutional Convention

The Framers of the Constitution adopted the same prohibitions that appeared in the Articles of Confederation. Article I, Section 9 prohibits the federal government from granting titles of nobility, and Article I, Section 10 prohibits the states from granting titles of nobility. There was essentially no debate about these provisions at the Constitutional Convention.

The Ratification Debates

During the ratification debates, the Federalists praised the prohibition of titles of nobility. In Federalist No. 44, Madison wrote that the provision “is copied from the articles of confederation and needs no comment.” In Federalist No. 84, Hamilton explained that the prohibition of titles of nobility was designed to affirm and protect the republican character of the new American government. He denominated this prohibition as “the corner-stone of republican government; so long as [these titles] are excluded, there can never be serious danger that the government will be any other than that of the people.” And Madison observed in Federalist No. 39 that the “absolute prohibition of titles of nobility” is the “most decisive” proof that the Constitution conforms in “the most rigid sense” to a republican form of government. The republican government established by the Founders was animated by the ideal of a civil society where advancement is fueled by talent, virtue, and accomplishment—not predetermined by a hereditary aristocracy based on birth. David Ramsay, an eighteenth-century historian, wrote that “Equality” is the “life and soul of commonwealth,”¹⁸ and Madison wrote that protecting “diversity in the faculties of men” is “the first object of government.”¹⁹

The primary criticism of the clause was that it did not go far enough. Massachusetts and New York proposed that the Federal Title of Nobility Clause be amended to prevent Congress from consenting to the grant of foreign titles of nobility as well.²⁰ Anti-Federalists contended that so much power would reside in the federal government that its officeholders would inevitably become a de facto aristocracy. Old Whig, for example, warned that even if the President could not confer titles of nobility, he would “have the power of making all the great men, which comes to the same thing.”²¹ Federal Farmer argued that if the federal government had only enumerated powers, then it would lack the power to issue titles of nobility. The fact that the Constitution expressly barred granting such titles suggests that the federal government has broad powers.²²

Early Practice

After ratification, Congress acted promptly to banish titles of nobility from American life. In 1795, Congress forbade naturalization to titled foreigners unless they formally renounced their titles.²³ In 1810, concerns spread that Great Britain and Napoleonic France would subvert the nascent Republic by capturing the allegiance of politicians with titles of nobility and emoluments. In response to these threats, Congress went further. It voted overwhelmingly to pass an amendment to the Constitution that would have revoked the citizenship of any person who accepted or retained a foreign title or emolument.²⁴ The amendment fell short of the three-fourths of states required to approve it so was not ratified.²⁵ Yet this provision was nonetheless mistakenly listed as “The Thirteenth Amendment” in the United States Statutes at Large for several years until the error was corrected after a House resolution and presidential investigation.²⁶

Judicial Precedent

As noted above, the Federal Title of Nobility Clause has rarely been litigated. Chief Justice John Marshall described the prohibition of titles of nobility as “complete and total,” a constitutional rule from which there is “no exception.”²⁷ Justice Henry Baldwin described the clause’s reference to nobility as “a term which defines itself,” with a meaning “as plain and definite as its language” such that “any comment is useless.”²⁸ In modern times, the Supreme Court has mentioned the clause only in passing references.²⁹

1. Charles T. Cullen, St. George Tucker and Law in Virginia, 1772–1804, at 124 (1987). ↩︎
2. 3 Story’s Commentaries § 1351. ↩︎
3. 1 Blackstone 396–399. ↩︎
4. Id. ↩︎
5. Id. at 386. ↩︎
6. Thomas Paine, Common Sense 76 (Isaac Kramnick ed., 1986) (1776). ↩︎
7. Letter from John Adams to Abigail Adams (July 10, 1776), https://perma.cc/6SDT-YL2P. ↩︎
8. Mass. Const. of 1780, Part I, art. VI. ↩︎
9. Ga. Const. of 1777, art. XI. ↩︎
10. Articles of Confederation, art. VI, § 1. ↩︎
11. Id. ↩︎
12. Akhil Reed Amar, America’s Constitution: A Biography 125 (2005). ↩︎
13. Carlton F.W. Larson, Titles of Nobility, Hereditary Privilege, and the Unconstitutionality of Legacy Preferences in Public School Admissions, 84 Wash. Univ. L. Rev. 1375, 1387 (2006). ↩︎
14. Minor Myers, Liberty Without Anarchy: A History of the Society of the Cincinnati 49 (1983). ↩︎
15. Letter from John Adams to the Marquis de LaFayette (Mar. 28, 1784), https://perma.cc/294C-88NA. ↩︎
16. George Washington, Observations on the Institution of the Society (c. 4 May 1784), https://perma.cc/JC55-2LTH; Larson, supra at 1398. ↩︎
17. Larson, supra at 1399. ↩︎
18. David Ramsay, Oration on the Advantages of American Independence (July 4, 1778), https://perma.cc/8MHV-F822. ↩︎
19. The Federalist No. 10 (Madison). ↩︎
20. Reports of Committee of Twenty-Five (Feb. 3, 1788), ConSource, https://perma.cc/SNA5-NMNT; Amendments Proposed by the New Hampshire Convention (June 21, 1788), ConSource, https://perma.cc/E7FH-PTFF. ↩︎
21. Storing 3.3.31. ↩︎
22. Storing 2.8.198. ↩︎
23. Act of Jan. 29, 1975, ch. 20, § 1, 1 Stat. 414 (1795). ↩︎
24. Resolution Proposing an Amendment to the Constitution of the United States, 11 Res. No. 2, 2 Stat. 613 (1810); 20 Annals of Cong. 530, 549, 572–73, 635, 671–72 (1810); 21 Annals. of Cong. 2050–51 (1810). ↩︎
25. Jol A. Silversmith, The “Missing Thirteenth Amendment”: Constitutional Nonsense and Titles of Nobility, 8 S. Cal. Interdisc. L.J. 577, 585 (1999) (citing 2 Documentary History of the Constitution of the United States of America 454–515 (1894)). ↩︎
26. Id. at 586–89; 1 Laws of the United States of America, 1789–1815, at 74 (1815); 31 Annals of Cong. 530–31 (1817). ↩︎
27. Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 335 (1827) (Marshall, C.J., dissenting). ↩︎
28. Briscoe v. Bank of Commonwealth of Ky., 36 U.S. (11 Pet.) 257, 327 (1837) (Baldwin, J., concurring). ↩︎
29. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring in part and concurring in the judgment); Fullilove v. Klutznick, 448 U.S. 448, 533 (1980) (Stevens, J., dissenting). ↩︎