III. Titles of Nobility

At this point, one might ask: So, why does it matter that the extremist fringe puts forward false claims about TONA? "To the unschooled, it can all sound real." One should pause and remember that the vast majority of the American public knows very little about the Constitution. If even law professors and Supreme Court Justices cannot be relied upon to write about the amendment accurately, why should the public or the media be expected to know what to believe? Furthermore, the little attention the legal press has has given to TONA proponents has tended to treat them as lovable rogues, rather than recognizing that they have close ties to extremists groups and are advocates of violence. TONA proponents are part of a movement that threatens civil liberties and civil rights, using constitutional nonsense as a weapon.

In some cases, their constitutional nonsense is based on misuse of conventional legal premises in an attempt to deceive the layman as well as the inattentive professional. For example, an opinion frequently cited by TONA proponents is that of Judge Saffold in Hurst v. Moses. In that case, state law authorized the Mobile Charitable Association to operate various gambling games on behalf of the common school fund of Mobile County. Saffold wrote that by granting the Association this privilege, denied to all others in the state, the legislature had violated Article I, Section 32 of the State constitution:

 

"To confer a title of nobility, is to nominate to an order of persons to whom privileges are granted at the expense of the rest of the people. It is not necessarily hereditary, and the objection to it arises more from the privileges supposed to be attached, than to the otherwise empty title or order... [The purpose of the prohibition on titles of nobility is the state constitution] is to preserve the equality of citizens in respect to their public and private rights."

TONA proponents fail to mention quite a few relevant pieces of information about Saffold's opinion, however, First, after remand, the state supreme court affirmed that the law was invalid on other grounds. Second, the opinion refers to the definition of "title of nobility" in the state constitution; similar phrases in state constitutions and the Federal Constitution do not necessarily receive like interpretations. Third, the opinions in Horst v were delivered seriatim: Saffold's opinion, which was not even the lead opinion, was of limited precedential value even in Alabama. Fourth, the opinion has never been cited on point (nor at all more than sixty years); it almost certainly would have been forgotten if it had not been cited in a modern law review article on titles of nobility. Fifth, the subject matter of the case was whether a group of individuals could be authorized by the state to conduct what was in effect a lottery even while a  criminal statute prohibiting lotteries remained in place for all other individuals. If TONA were to employ the same principle, any professional granted a privilege to practice by a state (e.g. lawyers, doctors, barbers, cosmetologists) denied to the public at large would hold a title of nobility, be stripped of their citizenship, and be ineligible to hold office.

But claims that embrace such nonsensical propositions are put forward by extremists. TONA proponents claim that the amendment would prohibit lawyers from serving in public office because lawyers are often referred to by the term "esquire". But in the United States, the use of the term is nothing more than custom. The Constitution prohibits the federal government and states from granting titles of nobility. The one American experiment with excluding citizens holding titles of nobility from public office did not affect lawyers; the Georgia Constitution of 1777 did not prohibit lawyers from serving in the House of Assembly. Further, as a matter of English history, titles of nobility may only be conferred by the monarch, not self-identification.Black's Law Dictionary, for example, defines "nobility" as such:

"In English law, a division of the people, comprehending dukes, marquies, earls, viscounts and barons. These had anciently duties annexed to their respective honors. They are created either by writ, i.e., by royal summons to attend the house of peers, or by letters patend, i.e., by royal grant of any dignity and decree of peerage; and then enjoy many privileges, exclusive of their senatorial capacity."

Black's also similarly provides the following definition of "honor":

"In old English law, a seignior of several manors held under one baron or lord paramount. Also those dignities or privileges, decrees of nobility, knighthood, and other titles, which flow from the crown, as the fountain of honor."

Black's also establishes that the term "esquire," as used in the United States, is not equivalent to its usage in English law. In addition, when the term is used to denote status, it is not a title of nobility or honor, and it has other uses also:

"In English law, a title of dignity next above gentleman, and below knight. Also a title of office given to sheriffs, serjeants and barristers at law, justices of the peace, and others. In United States, title commonly appended after name of attorney; e.g. John J. Jones, Esquire."

The Oxford English Dictionary likewise notes that the term "esquire" has been extended to English usage to apply to individuals not of noble birth to whom an equivalent degree of rank or rank or courtesy is attributed, and notes its separate usage in the United States for lawyers and public officers. Indeed, some experts on the English language conclude that the evolving use of the term has stripped it of all meaning, save a general term of address for men: "[T]he impossibility of knowing who is an esquire and who is not, combined with a reluctance to draw invidious distinction, has deprived esquire of all significance." The few courts that have directly considered the meaning of "esquire" concur. This was true even in the early nineteenth century; "[E]squire" was "a title applied by courtesy to officers of almost every description, to members of the bar, and others. No one is entitled to it by law and, therefore, it confers no distinction in law"

Even if ratified, TONA would be unlikely to have a significant effect on American society. Since World War II, more than sixty American citizens have been granted honorary knighthoods by the United Kingdom alone. But the American public has expressed little if any concern - perhaps because such awards are symptoms of divisions in society, not their cause. Further, TONA would not apply to such commendations. Knighthoods, which for Americans carry no obligations or privileges, are not titles of nobility. When General Norman Schwarzkopf accepted a honorary knighthood, he was still a serving officer, but no constitutional violation occurred. Apparently, a honorary knighthood does not violate the federal nobility clause, which sweeps more broadly than TONA, or it is of "minimal value" and its acceptance consented to by Congress by statute if it is received as a mark of courtesy. Further, although once accepted, honorary knighthoods cannot be renounced, they can be revoked. Therefore, under TONA, few American citizens, unless possessed of an actual title of nobility or unable or unwilling to extricate themselves from a foreign commendation, necessarily would be stripped of their citizenship and right to participate in civil society - a fact which would be a relief for leading politicians, businessmen and celebrities. The remaining provisions -dealing with presents, pensions, offices and emoluments -simply can be bypassed by an act of Congress.

In contrast, the modern role of the clauses of the Constitution that prohibit the federal government and states from granting titles of nobility is a subject that merits attention. The Constitution's nobility clauses on occasion have been invoked by courts, although most suits filed claiming a violation of the clauses are meritless. Although we should not allow ourselves to be deceived and distracted by TONA proponents, we should attempt to address the root causes of their alienation. At least a few commentators believe that the nobility clauses can play a role in dealing with divisions in modern society; our contemporary concerns about divisions are hardly unprecedented. The practice of handing out ambassadorships to campaign contributors has been described as a form of "title worship," although not unconstitutional. Indeed, even though "esquire" as used by American lawyers is not a title, some lawyers feel that the term is divisive and pretentious, and should be banished. It is a term exclusively for men in a day and age when almost half of law school graduates are female; "[w]e should exile this odious pretension as we have horsehair wigs and gold collar buttons."

Three Supreme Court decisions have invoked the nobility clauses of the Constitution in concurring or dissenting opinions. In Fullilove v. Klutzmick, the Court upheld a minority set-aside provision of the Public Works Employment Act. Justice Stewart,, dissenting, cited the federal clause when he declared that "[t]he Framers... lived at a time when the Old World still operated in the shadow of ancient feudal traditions.... [T]hey set out to establish a society that recognized no distinction among white men on account of their birth." In Mathews v. Lucas, which concerned illegitimate children's rights to receive survivors' insurance benefits, a dissenting opinion urged that the federal clause forbids economic distinctions based on birth. In Zobel v. Williams, four concurring Justices invoked the clauses to disapprove of a fiscal giveaway by Alaska. In a footnote, Justices Brennan, Marshall, Blackman, and Powell charged that the state's degrees-of-citizenship approach established a latter-day nobility in violation of the federal clause, noting that "[t]he American aversion to aristocracy developed long before the Fourteenth Amendment and is ...reflected... in the Constitution."

Two modern lower courts opinions also have cited the nobility clauses. In Eskra v. Morton, an American Indian sought review of a Board of Indian Affairs ruling that her illegitimacy would prevent her from inheriting her mother's property. The Seventh Circuit reversed, holding that attachment of an official stigma at birth would constitute a badge of ignobility. In In re Jama, a citizen applied to a New York court to change his name to "Von Jama," the family name before immigrating to the United States. The court rejected his request partly on nobility grounds. "True Americanism", it declared, prohibited any political divisions resting on race, religion or pigmentation of skin: " 'Von'... is a prefix occurring in many German and Austrian names, especially nobility. The court cannot think of the greater nobility than be an American... This is the law of the land and declaratory for our own public policy."

In In re Jama;s court's description of Jama's arguments as "puerile, if not pathetic" perhaps is itself an example of the elitism with which we should be concerned.But the court's decision does underlie the notion that, as some commentators suggest, the nobility clauses could be sources of equality-protecting doctrine. Until recently, the greatest danger of equality in America, Delgado argues, was attitude and practices that ruthlessly subjugated Blacks, Hispanics, Indians, women, and the poor. But now there is a new evil, the enrichment of those at the top of the social ladder coupled with indifference to the rest, that the nobility clauses are well adapted to address. Further, assigning an explicit role to the nobility clauses would lesson the likelihood that courts will sporadically and unpredictably invalidate legislation because it offends unstated preferences.

There are of course, also arguments against reinvigorating the nobility clauses. Although Delgado finds them unpersuasive, he notes that one could argue that antinobility analysis could be used to strike down practically every governmental action or program; that it would require affirmative obligations on behalf of the poor; and that it could not be effectuated by courts or any other branch of government. But again, no serious debate can be had on the subject of waiting in the wings are the TONA proponents who would strip anyone of any privilege of their citizenship and bar them from civil society. The alienation of such extremists should be taken as a sign that something is wrong in modern American society. We should remember that the nobility clauses were adopted because the founders were concerned not only about the bestowal of titles but also about an entire social system of superiority and inferiority, of habits of deference and condescension of social rank, and political, cultural and economic privilege - a system of inequity that some commentators argue is reemerging. But any privilege is not to grant a title of nobility: "Merely dingling out an individual for a special benefit is a far cry from creating or attempting to create a new Brahmin-style caste or a new social elite."

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