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ArtI.S9.C8.4 Titles of Nobility and the Constitution

Article I, Section 9, Clause 8:

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.

The Constitution’s prohibition on titles of nobility reflects both “the American aversion to aristocracy” 1 and the republican character of the government established by the Constitution.2 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.3

The Articles of Confederation4 and many Revolutionary-era state constitutions contained prohibitions of titles of nobility and other systems of hereditary privilege.5 The federal Title of Nobility Clause substantially follows the Articles’ prohibition and was not a subject of significant debate at the Constitutional Convention.6 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.” 7 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.8

Very few courts have had occasion to interpret the meaning of the federal Title of Nobility Clause.9 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.10

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.11 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.12 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.13 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.14

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” ). back
See The Federalist No. 39 (James Madison); The Federalist No. 84 (Alexander Hamilton). back
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” ). back
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.” ). back
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 . . . .” ). back
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.” ). back
The Federalist No. 34 (James Madison). back
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 . . . ” ). back
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 9, at 602–07 (addressing this argument). back
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 6, at 1380–82 (arguing the Title of Nobility Clauses’ scope extends “beyond the narrow meaning of nobility under English law” ). back
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 12, 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 6, 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). back
See Amdt14.S1.8.1.1 Overview of Race-Based Classifications; Amdt14.S1.8.7.1 Overview of Non-Race Based Classifications. back