The Odd Clauses

by Jay Wexler

  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 l
egacy 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.”

  Here’s another possibility. What if the government decided to create a class of biologically superior citizens by funding and then selectively distributing certain types of genetic services (cloning, organ transplants, “Nobel Prize Sperm Banks,” and who knows what other sci-fi possibilities there might be) to those who could afford to pay enormous sums? Would this have the effect of producing a “noble” class of citizens that would be able to pass down their advantages from generation to generation? Should the title of nobility clauses have anything to say about this?

  Richard Delgado, one of the nation’s most prominent and creative legal scholars, considered this question back in the mid-1980s, and argued that courts might use the clauses to stop such practices. According to Delgado, distribution of certain biological benefits by the government to wealthy individuals might create “a rapid, drastic, and probably irreversible widening of the gap between society’s haves and have nots,” since “[t]he beneficiaries would receive a substantial and much-desired benefit, the effects may be long-lasting, and the recipients could come to be viewed as naturally and deservedly superior.” The equal-protection clause might not be sufficient to stop the practice, because at least thus far, the government is allowed to distinguish among people on the basis of their wealth. Perhaps the title of nobility clauses, following in the footsteps of the equal protection clause’s sudden emergence from nowhere in 1954, would have to step up, grow a neck, become a giraffe, and save us from ourselves. Wouldn’t it be something if one of our Constitution’s odd clauses was the only obstacle standing in the way of an American Brave New World?

  CHAPTER 9

  The Bill of Attainder Clauses

  Liberty

  No Bill of Attainder . . . shall be passed [by Congress].

  Article I, Section 9

  No State shall . . . pass any Bill of Attainder.

  Article I, Section 10

  Consider the following three stories from recent years:

  After the Supreme Court held in 2006 that the Bush administration could not try “enemy combatants” in military tribunals created solely through executive order, Congress passed a statute establishing “military commissions” and providing that the president could try “alien unlawful enemy combatants” in front of them. Under the statute, these commissions have some of the procedural protections of so-called “real” courts, but not all of them. For instance, while the defendant, unlike with Bush’s tribunals, does have the right to attend commission proceedings, the government may introduce “evidence” (here, imagine that I’m making grotesquely exaggerated quote marks with my fingers) like hearsay and statements obtained from the defendant by coercion—that judges generally do not allow in real courts. Guantanamo detainees like Salim Ahmed Hamdan (Bin Laden’s personal driver) and Khalid Sheikh Mohammed brought all sorts of constitutional challenges to the statute in front of both the commissions themselves and real courts. Among other things, these detainee-defendants argued that Congress, by naming a class of people (alien unlawful enemy combatants) and authorizing them to be tried in front of commissions with limited procedural protections, had violated the Constitution’s ban on bills of attainder (“attainder” is an old English word meaning “taintedness”).

  In 2009, following a year in which the insurance giant AIG posted the all-time biggest loss in corporate history and then received $182 billion in government bailout money, the company announced that it was awarding nearly $200 million in bonuses to its traders so they could buy fancy cheese and Jaguars. The country went ballistic. President Obama called the move an “outrage.” Republican senator Chuck Grassley urged the company’s officers to do as the Japanese do in such situations—bow and apologize, and then maybe commit suicide. Shortly after the company’s announcement, the House of Representatives, by a wide margin, passed a law that would have imposed a 90 percent tax on most bonuses issued by companies, like AIG, that had received over $5 billion in government bailouts. Critics of the proposal cited a variety of policy and constitutional objections to the tax. Among other things, these commentators argued that Congress, by authorizing a gigantic tax on a specific group of people, had violated the Constitution’s ban on bills of attainder.

  In the closing years of the last century, executives at the Association of Community Organizations for Reform Now, better known as ACORN, covered up the fact that the brother of the group’s founder had embezzled almost a million dollars from the organization. When this became public the odd clauses knowledge in 2008, it was only the beginning of ACORN’s troubles. Allegations surfaced that ACORN, which received about 10 percent of its operating funds from the federal government, had engaged in voter fraud, tax law violations, and other dastardly activities. The group hit rock bottom in 2009, when hidden-camera videos showed ACORN employees in Baltimore supposedly explaining to a prostitute and her pimp how they could set up their business to evade IRS scrutiny. Not cool. Congress responded to ACORN’s difficulties by providing that no federal agency could give any money to “ACORN, or any of its affiliates, subsidiaries, or allied organizations.” ACORN then sued the government, claiming that by singling out the organization for special negative treatment under its appropriation laws, Congress had violated the Constitution’s ban on bills of attainder.

  According to the Supreme Court, “legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.” In which of the three just-described scenarios, if any, did Congress enact a forbidden bill of attainder?

  The Constitution, as it reads today, is downright lousy with protections for individual liberty. You can hardly swing a cat around the document without hitting one. The Constitution protects our freedom to speak freely, to practice the religion of our choice, and to associate with whomever we want. It keeps the police from searching us unreasonably and requires the government to provide all sorts of procedural protections—the right to a lawyer, for instance, and to confront hostile witnesses—before it can convict us of a crime. It says that before the state takes away our property or liberty, we must be given notice and some kind of a hearing, aka “due process of law.” Hell, the Constitution might even protect our God-given right to fire off a few rounds of an automatic machine-gun.

  If you look closely, however, you will see that almost all of these procedural protections are located in the Bill of Rights—the first ten amendments to the Constitution, added as a group in 1791. The original Constitution contains very few provisions that explicitly protect individual freedoms. Many federalists, the Constitution’s original supporters, saw no need for such provisions, figuring that the document’s many structural provisions (separating the branches, separating federal power from state power) were already adequate to protect individual liberties. The federalists also apparently thought that the Constitution’s limited grant of power to the federal government made it unlikely that individual freedoms would be in danger. After all, these supporters argued, nothing in the Constitution affirmatively gives Congress or the president the power to infringe anyone’s liberty, so what’s to worry? Fortunately, when it became clear that the Constitution’s early success was going to turn on the support of a sufficient number of anti-federalists, most of whom supported a bill of rights, the skeptical framers gave in and agreed to put together a nice little package of individual liberties to tack on to the original document.


  The original Constitution does, however, contain a couple of important, if quirky, liberty-protecting clauses. There are the “ex post facto clauses” of Article I, for example, which make it unconstitutional for either the federal or state governments to inflict retroactive punishment. In other words, if you do something today that’s not currently illegal—say, texting while riding a motorcycle—the government cannot pass a law tomorrow outlawing motorcycle texting and then punish you for having broken it yesterday. You need to be on notice that you can be punished for something before the government can punish you for it. That’s a handy protection to have in the Constitution, and it says something about the propensity of eighteenth-century legislatures to inflict retroactive punishment that the framers singled it out as one of the very few liberty-depriving practices that they forbade in the original Constitution.

  Of course, as with all constitutional clauses (remember the discussion of the seemingly simple “you have to be thirty-five years old to be president” clause from chapter 5), the ex post facto clauses raise some difficult interpretive questions. For example, what exactly counts as “punishment”? Putting someone in prison to exact retribution for a terrible crime is clearly punishment, but what about putting someone deemed irrevocably dangerous into some kind of civil confinement situation after they are released from prison as a way of protecting potential victims? Many states have laws that do this sort of thing to sex offenders, and even though those laws were passed, in some cases, after the offenders had been convicted for their sex offenses, the Supreme Court has held that they do not inflict punishment in violation of the ex post facto clauses. I happen to think that’s crazy, and not just because this was the position I was assigned to take in my law school moot court competition fifteen years ago, a tournament that stressed me out so much I had to gulp down a shot of vodka before a particularly nerve-wracking round, but that’s the Supreme Court for you. (I’ll spare you the story of how one judge during the competition, on a 1–10 scale, gave me a 5 for “appearance.”)