The Odd Clauses

by Jay Wexler

  The original Constitution does not contain any provision requiring that the government treat people equally. The equal-protection clause, which says that the government shall not “deny to any person . . . the equal protection of the laws,” now plays that role, but it didn’t become part of the Constitution until the states ratified the Fourteenth Amendment in 1868. That clause, of course, is one of the Constitution’s superstars, a veritable giraffe among shrews, but it was not always so tall and spotted. For almost a hundred years, it slumbered silently in the Constitution like a tired shrew. Only in 1954, when the Court struck down segregated schools in Brown v. Board of Education, the most important decision of modern times, did the clause start living up to its potential. Since Brown, the Court has used the equal-protection clause to invalidate offensive laws like those prohibiting interracial marriage (Loving v. Virginia) and practices like striking potential jurors from the jury pool solely on account of their race (Batson v. Kentucky). More controversially, the Court has also used the equal-protection clause to strike down a variety of affirmative action programs intended to assist minorities, including race-based college-admission quotas and election districts drawn specifically to maximize the political representation of African Americans.

  Starting in the 1970s, the Court also started using the equal-protection clause to scrutinize gender-based laws. This shift is attributable in large part to the pioneering work of Ruth Bader Ginsburg, who, as a practicing lawyer and the founder of the ACLU’s Women’s Rights Project, devised a successful strategy (often involving litigating cases on behalf of men, like the 3.2 percent beer case I described in chapter 6) to convince the Court to start treating gender-based laws much the same way it treats race-based laws. As a member of the Supreme Court, Justice Ginsburg cemented this approach to gender discrimination when she wrote the majority opinion in United States v. Virginia, which struck down Virginia Military Institute’s male-only admissions policy. The Commonwealth of Virginia had argued that this policy was necessary to the continued viability of the school. Ginsburg disagreed, writing: “There is no reason to believe that the admission of women capable of all the activities required of VMI cadets would destroy the Institute rather than enhance its capacity to serve the ‘more perfect Union.’ ”

  Although the original Constitution fell far short of ensuring any sort of robust equality among citizens of the new republic, a few of its provisions at least aimed in that direction. The original text is at its most egalitarian when setting out qualifications for high public office. As we saw in chapter 5, just about anyone who can win an election can serve, regardless of background, religious conviction, or hereditary privilege. Another set of clauses that promote equality are the three (!) that cast aspersion on titles of nobility.

  During the eighteenth century, the American colonists may have still enjoyed British tea, but they had little use for the complex hierarchical and hereditary social relationships of the English feudal system. A number of the nation’s founders wrote eloquently on the subject. Thomas Paine, in his famous tract Common Sense, noted that monarchy was “the most preposterous invention the Devil ever set on foot for the promotion of idolatry,” and that hereditary privileges were “an insult and an imposition on posterity.” Alexander Hamilton, writing in The Federalist Papers, said that prohibiting American citizens from accepting titles of nobility was “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.” And James Madison said of the same prohibition that it was the “most decisive” proof of the republican nature of America’s new democracy.

  Congress had to face the “titles of nobility” issue head on almost immediately after independence. Trying to draft a response to George Washington’s inaugural address, members of Congress had no idea what to call the country’s new leader. They knew that “King Washington” was out, since Washington had previously rejected a suggestion that he refer to himself that way, but they argued vehemently about what they should call him. Some suggested “His Excellency,” “His Highness, the President of the United States and Protector of their Liberties,” or “His High Mightiness.” These titles were all rejected. After much hand wringing, the Congress finally settled upon the nonnoble-and-boring-sounding “To the President of the United States.”

  The nation’s earliest legal documents similarly demonstrate the colonists’ opposition to titles of honor. Many colonies had adopted antinobility provisions in their own governing documents—the Massachusetts Constitution, for instance, observed that “the idea of a man born a magistrate, lawgiver, or judge, is absurd and unnatural”—and the Articles of Confederation contained one too. Unsurprisingly, the first draft of the new national Constitution included a flat-out ban on national titles of nobility. It read: “The United States shall not grant any title of nobility,” and the final version, which reads much the same way, was approved with almost no discussion at all.

  An early dispute involving a private hereditary organization shows just how much the early Americans detested titles of nobility. A couple of years after the end of the Revolution, a bunch of former officers of the Continental Army came together to form an organization called the Society of the Cincinnati (named after a famous Roman general), for the purpose of promoting the interests of former officers and providing general comradeship for those who had fought in the war. Only officers who had served for a certain amount of time were eligible to become members of the society, although under the organization’s rules, the firstborn son of each member would also become part of the society. Members wore ribbons and medals, and between these sartorial flourishes, which were modeled on those worn by the French and British nobility, and the hereditary nature of the group, the Society of the Cincinnati looked to a lot of people like the creation of a new and dangerous noble class.

  Accordingly, the country freaked out. John Adams said the society was “against the spirits of our governments and the genius of our people.” Thomas Jefferson wrote a letter to George Washington in which he called the society contrary to “the natural equality of man.” Benjamin Franklin said the former officers had created a hereditary knighthood that was “in direct Opposition to the solemnly declared Sense of their Country.” Judges, governors, foreign ministers, historians, and newspaper writers joined in the attack against the society. An anti-society pamphlet written by the chief justice of South Carolina claimed that the society violated the title of nobility clause, even though it was a private organization, because it “usurp[ed] a nobility without gift or grant, in defiance of Congress and the States”; the pamphlet was widely distributed and, according to one commentator, was “enthusiastically embraced across the nation.” When George Washington, who was a member of the society, demanded during the group’s first annual meeting in 1784 that the society abolish its hereditary provisions, the society bowed to pressure and briskly edited its founding document to do away with all mention of hereditary privilege.

  Each of the three clauses relating to titles of nobility does something different. Article I, Section 10, prohibits the states from granting titles of nobility, and Article I, Section 9, prohibits the federal government from doing the same thing. The only restriction on receiving titles of nobility, as opposed to granting them, is the one contained at the end of Article I, Section 9, prohibiting officers of the United States from accepting titles of nobility granted by any king, prince, or foreign state without the consent of Congress. Interestingly, nothing in the Constitution prevents private individuals from receiving titles of nobility from foreign countries, which explains why Jerry Lewis could be made a commander in the French Legion of Honor (but doesn’t explain why the French always found him so funny). Although private citizens don’t violate the Constitution by accepting a foreign knighthood, it is worth nothing that US immigration law does require that any applicant for US citizenship who “has borne any hereditary title or has been of any of the orders of n
obility in any foreign state” must renounce his or her title before becoming a citizen. Agency regulations even dictate the precise oath that such a foreign noble must utter. According to Title 8, Section 1337.1(d) of the Code of Federal Regulations, the applicant must say: “I further renounce the title of [give title or titles] which I have heretofore held” or (in the case of actual nobles), “I further renounce the order of nobility [give the order of nobility] to which I have heretofore belonged.” As I am always telling my students, the Code of Federal Regulations, which contains all of the officially adopted regulations of the US government, is filled with this type of bizarre and fascinating stuff, like this definition of canned green beans from Volume 21, Section 955.120(a): “Canned green beans and canned wax beans are the foods prepared from the succulent pods of fresh green bean or wax bean plants conforming to the characteristics of phaseolus vulgaris L. and phaseolus coccineus L. The optimal color and varietal types and styles of the bean ingredient are set forth in paragraph (a)(2) of this section.”

  In law school, we professors like to use hypothetical examples to review the material we’ve just gone over. Oftentimes, the idea is to come up with the most ridiculous hypothetical imaginable, if for no other reason than to keep the class awake. In that spirit, consider the following. Back in 1972, a lieutenant in the elite Norwegian King’s Guard, touring the Edinburgh Zoo in Scotland during an annual visit to a Scottish military music festival, picked out a particularly attractive and charismatic king penguin which he named Nils Olav and appointed as the Guard’s official mascot in Edinburgh. Olav served as the honorary regimental sergeant major of the Guard from 1972 to 2005 and honorary colonel-in-chief from 2005 to mid-2008. In August of that year, the Guard decided a promotion was in order, and it conferred a knighthood upon the penguin (well, actually not the same exact penguin, but another penguin who had the same name and by all accounts looked kind of similar). Following a ceremony that featured speeches and apparently a review of the troops by the soon-to-be-anointed penguin, British Major General Euan Loudon, acting on behalf of Norway’s King Harald V. Loudon, tapped the king’s sword on both sides of the penguin’s head, thus anointing the black-and-white waddler as an official, honest-to-goodness Knight of the Crown.

  I am actually not that good at coming up with hypothetical examples, so I usually use a real-world problem instead, even if it’s not exactly the best story to illustrate the legal point. And indeed this story about the penguin(s) is both true and also probably not the best story to illustrate the legal point. In any event, the question for our purposes is whether such a knighthood ceremony could happen in the United States. Although at first glance, the whole person-penguin distinction thing would seem to be an important issue, it really isn’t. The title of nobility clauses directly restrict government entities; the clauses prohibit any government entity (whether federal or state) from granting a noble title. Apparently, then, a knighthood cannot be conferred by either the federal government or a state government, regardless of whether the intended conferee is a person, a potato, or a penguin. On the other hand, if it were the Norwegian government granting the knighthood, then anyone or anything could be the recipient, so long as the soon-to-be-knight were not already an officer of the United States (which presumably the penguin would not be). Of course, if Olav were ever to seek US citizenship, he would have to renounce his Norwegian title first. Anyway, the point is that only government officers are prohibited by the Constitution from holding titles of nobility from foreign countries. But what counts as an officer? We don’t know exactly, because no court has ever been called upon to consider the issue. There are a couple of executive branch decisions, however, in which the attorney general or the OLC has opined on the question.

  Back in 1911, for instance, a member of the House of Representatives named James McKinney wrote the secretary of state, asking whether a certain Professor J. A. Udden, the inventor of the Udden grade scale used to classify sedimentary rocks and at the time a special assistant to the US Geological Survey, could accept an offer from the king of Sweden to make him a “Knight of the North Star.” The secretary forwarded McKinney’s letter to Attorney General George W. Wickersham, who responded that because Udden’s employment was intermittent and occasional rather than continuous, and because the geologist was paid by the day when actually employed ($5) rather than kept on salary, Udden was not an officer of the United States. “I have the honor,” Wickersham wrote, “to advise you that there is nothing in the Constitution . . . to prevent the acceptance by Professor Udden of the order conferred upon him by the king of Sweden.” Beyond this opinion, however, and a few others going back and forth on the question of whether members of advisory boards count as officers (right now the answer is that they don’t), nobody has much considered the question of who precisely cannot accept a foreign title of nobility.

  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 Constitut
ion (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.