The Odd Clauses (20 page)

It is worth pausing here to remember that, according to the plain language of the Constitution, Congress can consent to an official accepting a title of nobility from abroad. In other words, if Congress agrees that some official can become a Knight of the Round Table or whatever, then the official is free to accept the honor. This is the theory that at least one government employee whom Christopher Hitchens spoke with about Norman Schwarzkopf relied on to defend the general's knighthood. The employee pointed Hitchens to (in Hitchens's words) “a surreptitious little piece of public law, enacted in 1966, that empowers bauble-hungry Americans to accept awards for soldiering ‘subject to the approval of the department, agency, office or other entity in which such person is employed and the concurrence of the Secretary of State.' ”

This quotation must refer to a somewhat antiquated version of the Foreign Gifts and Decorations Act, which expresses Congress's consent for certain government officials to accept a variety of foreign honors and gifts (Article I, Section 9, of the Constitution prohibits officials from accepting gifts as well as titles of nobility). The current version of the law (and the one in effect in 1991) says that an employee can accept, retain, and wear a “decoration tendered in recognition
of active field service in time of combat operations . . . subject to the approval of the employing agency of such employee.” Did this statute bless Schwarzkopf's knighthood? Maybe, maybe not. For one thing, it's not clear that the knighthood conferred upon Schwarzkopf was only a “decoration.” Even if was just a decoration, moreover, it's also not clear whether the Defense Department ever gave Schwarzkopf approval to accept it. If not, then Schwarzkopf had violated the act, possibly subjecting himself to a fine of up to $5,000, unless Congress had consented to the knighthood in some other way, something I have no intention of spending any of my time trying to confirm or deny.

The limits placed on individuals by the title of nobility clauses, then, turn out to be modest. Only officers of the United States are prevented from accepting titles of nobility, and then only if Congress doesn't consent. This limitation was not nearly substantial enough for some of the early leaders of the Republic. The ratifying conventions of six states, in fact, proposed amendments to the Constitution that would have deleted the portion of Article I, Section 9, regarding congressional consent. None of these proposed amendments was adopted, but in 1810, two-thirds of both houses of Congress passed a proposed amendment that would have gone even further than these early proposals. The so-called titles of nobility amendment said this:

If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the
United States, and shall be incapable of holding any office of trust or profit under them, or either of them.

If adopted, this language would have radically expanded the Constitution's prohibition on accepting titles of nobility. Not only would the proposal have eliminated the congressional-consent exception of the original Constitution (for titles of nobility at least, if not for presents and emoluments), but it would also have automatically deprived any recipient (not just officials) of US citizenship and prohibited the individual from becoming an officer of the federal government. Some have speculated that the impetus for the proposal was fear that the French government was going to confer a title upon the American wife of Napoleon Bonaparte's younger brother Jerome, but this theory does not seem to ever have been confirmed.

Fortunately for Norman Schwarzkopf and Jerry Lewis, the proposed thirteenth amendment was never ratified by enough states to become part of the actual Constitution. It came close, though, twice inching within two votes of being ratified by the required three-quarters of the states. In 1810 the Union had seventeen states; eleven of the required thirteen states ratified the amendment. New Hampshire ratified it in 1812, but by then Louisiana's entrance into the nation had raised the number of required ratifying states to fourteen. New Hampshire turned out to be the last state to ratify the proposed amendment, and by the time Rhode Island and South Carolina rejected the proposal in late 1814, it was clear that the titles of nobility amendment wasn't going anywhere.

This is not to say, however, that the amendment is even now completely dead. Consider the history of the Constitution's Twenty-seventh Amendment. This amendment—the most recent addition to the Constitution—was proposed by James Madison (yes,
that
James Madison) to limit the ability of members of Congress to grant themselves pay
raises. The amendment, as passed by both houses of Congress and submitted to the states in 1789, stated that “No law varying the compensation for services of the Senators and Representatives, shall take effect, until an election of the Representatives shall have intervened.” A few states ratified the amendment, but not nearly enough for it to become law, and after about 1792, the amendment laid mostly dormant until it was rediscovered by a student at the University of Texas in the early 1980s (yes,
those
1980s). A movement developed to get the amendment ratified, and over the next decade or so, over thirty states approved it, with Alabama putting the amendment over the top on May 5, 1992, a mere 203 years after the language was submitted to the states.

If the Twenty-seventh Amendment can become law hundreds of years after it was submitted to the states, presumably the original thirteenth amendment could enjoy the same fate. After all, the titles of nobility amendment—like the Twenty-seventh Amendment, but unlike the doomed equal rights amendment of the early 1970s—was unaccompanied by any explicit congressional deadline for its ratification. If you truly hate the idea of American citizens receiving foreign honorary titles, and if you happen to have a whole lot of extra time on your hands, you might consider spearheading a movement to get the forgotten titles of nobility amendment back on the nation's front burner.

Although the titles of nobility amendment was never ratified by a sufficient number of states and therefore never became part of the Constitution, it came close enough to cause some serious confusion over the two hundred years since its proposal. In 1815 the editor of the new version of the
United States Statutes at Large
, which is the official collection of the nation's laws, was unable to figure out if the amendment had in fact been ratified. Noting that the information provided to him by the government was “defective” to show “whether the amendment proposed . . . has, or has not, been adopted
by a sufficient number of the state legislatures to authorize its insertion as part of the constitution,” editor John Colvin decided to publish the amendment as though it had been ratified, although he accompanied the printed amendment with an explanation that he just wasn't sure about its status.

Recently, certain people who seem to dislike lawyers even more than most people dislike lawyers have started latching onto the titles of nobility amendment in a frivolous but sort of frightening way. These individuals have tried to argue, in print and even before courts, that the term “esquire” as it is used by lawyers is in fact a title of nobility and that all lawyers have therefore been deprived of their citizenship by the titles of nobility amendment, the actual ratification of which has been purposely covered up by, well, lawyers. One of the leading proponents of this view is a guy who, according to one account, will demand full-blown trials on behalf of defendants accused of things like speeding or illegal fishing, and then put forward as a defense the unconstitutionality of the entire legal system. Luckily, claims like these haven't worked so well, since it's absolutely clear both that “esquire” is not a title of nobility and that the titles of nobility amendment was never ratified. As one judge put it in response to a defendant's claim that neither the judge nor the prosecutor (nor even members of Congress, for that matter) were US citizens authorized to administer anything having anything to do with the American legal system, “these arguments may be amusing to some but are meritless and must be rejected.”

The “esquire” argument may be frivolous, but it does raise an interesting and important question, which is, What actually counts as a title of nobility, anyway? What exactly are states and the federal government prohibited from granting? It's clear that the government can't make someone a king or a
duke or an earl, but is there anything short of these classic titles that should be considered a “title of nobility” for constitutional purposes? Are there practices out there, real or potential, that might violate the same equality principles that animated the framers to enact the constitutional ban on titles of nobility, and if so, what are they?

You might think that the courts would have addressed this issue, but they haven't. The judicial opinions that exist mostly consist of not much more than cursory rejections of clearly frivolous arguments. One court, for instance, rejected out of hand a defendant's contention that the military rank system was a title of nobility (he had been convicted for refusing to report for duty). Another dismissed without much discussion the argument that the title of “magistrate” was a noble one. And the Supreme Court of Nebraska in 1988 got so sick of hearing title of nobility claims from people convicted of driving without a license that it dedicated an entire paragraph to explaining why driver's licenses are not titles of nobility. “A driver's license has no connection with social rank,” the court explained, and “bestows nothing more than the authority to operate a motor vehicle.”

Perhaps the only recorded judicial decision in the history of the Republic to rely on the title of nobility clauses in any way to forbid someone from doing something is a case called
In re Jama,
which is also one of the strangest opinions I've ever read in my life. A guy named Robert Paul Jama, who alleged that “somewhere, sometime, in the past his deceased father told him that the family name was originally von Jama but that the von part had been dropped,” applied back in 1966 to a civil court in New York to change his name to Robert von Jama. He wanted to “Germanize his patronymic” (all the quotes here are directly from the opinion) because he wanted a “German genealogy” and because “his friends and acquaintances [were] all of Germanic stock.” The judge rejected Jama's application, relying on a combination of anti-Germanic
prejudice and jingoism, with a splash of the title of nobility clauses thrown in for good measure. I can't help myself from quoting the bizarre opinion at length:

The moral guilt of the Germanic peoples in adopting the philosophies of a monstrosity and his cohorts has not yet been fully eradicated or been forgotten . . . The court does not intend by these observations to condemn an entire nation nor its people but cannot reconcile petitioner's desire to affiliate himself with such close affinity with the von. . . . If a man is going to be an American at all, he should be so without any qualifying adjectives. . . . An American should measure himself by the American standard, and paraphrasing the bold Romans of old, proudly proclaim himself Civis Americanus Sum. . . . Article I, section 9, clause 8, United States Constitution prohibits the grant of any title of nobility by the United States. . . . It would be presumptuous if not unlawful for this court to take a position or do an act contrary to the spirit and intent, if not the letter, of our Federal Constitution. . . . Reflection should indicate to the applicant that his reasons for a change are puerile, if not pathetic.

All this silly stuff about the driver's licenses and the “von” and so on are ridiculous, but some serious questions do exist about what kinds of things beyond the obvious titles like duke or earl are prohibited by the clauses. Legal scholars over the years have proposed some possibilities for what kinds of practices—both current and future hypothetical—might be prohibited by the Constitution's prohibition on official noble titles.

For instance, what about the practice, engaged in by probably every state university in the country, of granting legacy preferences to children and grandchildren of alumni?
According to one source, top universities have a double, triple, or even quadruple acceptance rate for legacies than for ordinary applicants. It's no secret why universities do this—it's a great way to encourage alumni to contribute money and, in some cases, libraries, science centers, or stadiums. But it surely doesn't seem fair to those of us whose parents didn't happen to go to the school we would like to attend. Why should the son or granddaughter of a University of Virginia graduate have a better chance of admission than anyone else? The practice is particularly troublesome since it benefits white students to the detriment of minorities, whose parents and grandparents are far less likely to have attended a top school than William “Skip” Preston Westinghouse III. Although legacy preferences harm minorities, they cannot be reached by the equal-protection clause, because the Court has interpreted that provision to prohibit only intentional discrimination, rather than practices that merely have the
effect
of harming minorities.

Recently, however, a scholar at the University of California at Davis, Carlton F. W. Larson, has argued that the title of nobility clauses should prohibit state universities from granting legacy preferences. Conceding the novelty of his suggestion—Larson writes early on in his article: “Titles of nobility? Surely only cranks and misfits invoke the Nobility Clauses in constitutional argument”—Larson argues that the nobility clauses should be read broadly to prohibit “hereditary privileges with respect to the institutions of the state,” and that legacy preferences “fail miserably” under this restriction. Larson's article was so intriguing that it had the rare distinction of being picked up by the nation's most important newspaper. Writing in the
New York Times,
Adam Liptak called Larson's argument “fascinating and provocative,” although he ultimately seemed dubious. “It still seems a bit of a leap,” Liptak wrote, “to move from prohibiting the government from naming me a duke to barring public universities
from giving the children of alumni an admissions advantage.”