from: The Stewardship Doctrine:
Intergenerational Justice in the United States Constitution

Footnotes 7: Nobility

234 U.S. CONST., Art. I, § 9 ("No Title of Nobility shall be granted by the United States . . .") and § 10 ("No State shall . . . grant any Title of Nobility.") Titles of nobility had also been prohibited in Article VI of the Articles of Confederation.

235 See 17 ENCYCLOPAEDIA BRITANNICA 538 (9th ed. 1907)(Nobility is "the hereditary handing on from generation to generation of some acknowledged pre-eminence, a pre-eminence founded on hereditary succession, and on nothing else.")

236 Paine, Thomas, COMMON SENSE 12. See also section II-D, infra, as to the founders' belief in each generation's freedom to choose its own government.

237 See, e.g. Maryland Const. (1776), Art. XL ("That no title of nobility, or hereditary honours, ought to be granted in this state"); Maine Const., Art. I, sec 23. ("No title of nobility or hereditary distinction, privilege, honor or emolument, shall ever be granted or confirmed, nor shall any office be created, the appointment to which shall be for a longer time than during good behavior") North Carolina Declaration of Rights (1776), Arts. XXII and XXIII, ("That no hereditary emoluments, privileges or honors ought to be granted or conferred in this State"); Massachussetts Declaration of Rights (1780), Art. VI ("No man, nor corporation . . . have any other title to obtain advantages, or particular and exclusive privileges, . . . than what arises from the consideration of services rendered to the public; . . . this title being in nature neither hereditary, nor transmissible to children . . ."); Alabama Const. Declaration of Rights, sec. 1 (1865)(no one entitled to exclusive separate public emoluments or privileges but in consideration of public services); Kentucky Constitution Bill of Rights (1891) sec 23 ("The general assembly shall not grant any title of nobility or hereditary distinction, nor create any office the appointment of which shall be for longer than a term of years.") See also Virginia's ratification of the Constitution in Bailyn at 557 (recommending a federal bill of rights, including the provision "4th, [that] no office ought to be hereditary.") Compare Puerto Rico Const., Sec 14. ("No titles of nobility or other hereditary honors shall be granted"); Mexico Const., Art. 12 ("No titles of nobility, or hereditary prerogatives or honors shall be granted"); Venezuela Const., Art. 61 ("Titles of nobility or hereditary distinction shall not be recognized"); Argentina Const., Sec 16 ("The Argentine nation admits neither blood nor birth prerogatives, there are neither personal privileges nor titles of nobility").

238 Declaration of Independence (1776). See Delgado, Richard, "Inequality 'From the Top': Applying an Ancient Prohibition to an Emerging Problem of Distributive Justice," 32 UCLA L. Rev.100, 128 (1984) ("the [anti-nobility] clauses' history evidences a thoroughgoing constitutional aversion to government by self-perpetuating elites.")

239 See L. Tribe AMERICAN CONSTITUTIONAL LAW §8-7 (1978) (summarizing the basic premise of 14th Amendment equal protection jurisprudence that where there is no burden imposed, and no suspect class, there is no fundamental right requiring close judicial scrutiny and protection). Compare David Schuman, " , " ( ) (examining the many 'privileges and immunities' clauses in state constitutions, which have been construed to address unequal benefits as well as burdens). Of course, due to its complete lack of political representation, posterity as a whole may well qualify as a 'suspect' class for the purposes of traditional 14th Amendment equal protection analysis, a possibility which is considered more closely in Part .

240 See Delgado, "Inequality 'From the Top . . ." 32 UCLA L. Rev at 101, 133 ("It is time to focus on what equality requires when it is not a taking that is at stake, but a giving. . . .[T]he governmenbt's power to enrich A, while ignoring B, can cause inequality between A and B just as surely as its power to impoverish B directly. . . A[n] immediate . . . threat to equality is posed by governmental actions that centralize wealth, privilege, and power in a small sector of the population, coupled with indifference to those falling outside the inner circle . . . [C]ertain transfers of benefits to a selected few unacceptably impair democratic values. . . [T]he clauses provide a plausible source from which courts could develop doctrines to deal with official giving"); Silversmith, Joel, "The 'Missing Thirteenth Amendment': . . ." 8 SOUTHERN CAL. INTERDISCIPLINARY L.J. 577 (1999) (text accompanying n. 195) ("[T]here 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.")

241 See 16 Am. Jur. 2d, Const. Law 283 n.25 (1997) (indicating that the clauses have not provided the controlling authority in any "significant" litigation). But see Delgado id.; Silversmith id. at n. 176 and accompanying text (noting that the modern role of the anti-nobility clauses "is a subject that merits attention"); Comment, Titles of Nobility and the Preferential Treatment of Federally Employed Military Veterans, 19 WAYNE L. REV. 1169 (1973); Note, Asexual Reproduction and Genetic Engineering: A Constitutional Assessment of the technology of Cloning, 47 S. CAL. L. REV. 476 (1974).

242 OXFORD ENGLISH DICTIONARY (Compact Ed.: 1988).

243 Coke, ON LITT, I-345-b (emphasis supplied). See also the use of 'title' in Massachussetts Declaration of Rights Art. VI (1780) ("No man, nor corporation . . . have any other title to obtain advantages, or particular and exclusive privileges, . . . than what arises from the consideration of services rendered to the public; . . . this title being in nature neither hereditary, nor transmissible to children . . .")(emphasis supplied).

244 See Horst v. Moses, 48 Ala. 129, 142-44 (1872), writ dismissed, 82 U.S. (15 Wall.) 387 (1872)(interpreting state anti-nobility clause: "The objection . . . arises more from the privileges supposed to be attached, than to the otherwise empty title or order"); Delgado, at 115 ("Constitutional history indicates the Framers intended the clauses to forbid the award of actual titles of nobility, as well as governmental creation of elite classes with unique material advantages and privileged political access); Silversmith, "The 'Missing Thirteenth Amendment' . . .," n. 200 and acc. text (citing Gordon S. Wood, The Radicalism of the American Revolution 11-24 (1991)) ("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.")

245 See Peters, "Tilting at Windmills," Wash. Monthly, Oct. 1983, at 4, 6-7 (Noting that Debrett's, which publishes the directory of Britain's nobility, had recently announced its intention to publish Debrett's Texas Peerage which would be the first of ten volumes devoted to "the untitled aristocracy" in the United States.)

246 T. Wallbank, A. Taylor & G. Carson, CIVILIZATION 36 (5th Ed. 1965) (by the close of the seventeenth century, "Politics in England were . . . controlled by an oligarchy of great landed nobles and country squires plus wealthy commercial and banking families often related to the nobility.") The tradition of landed nobility also had a brief life on this continent. See J. Bassett, A SHORT HISTORY OF THE UNITED STATES 76 (2d ed 1924) (describing how, in early colonial history, "[t]he English monarchs considered land in America to be crown property and granted fiefdoms to favored nobles.")

247 See Part II-B, infra; Jefferson to James Madison (October 28, 1785), Boyd VIII: 682 (confirming that "[t]he earth is given as a common stock for man to labour and live on," and declaring it a "fundamental right" of the unemployed to labour the earth.) See also, George, Henry, PROGRESS AND POVERTY 338-340 (1879) (Robert Schalkenbach Foundation: 1948) (reiterating the Jeffersonian view: "[W]e are all here . . . with an equal right to the use of all that nature so impartially offers. This is a right which is natural and inalienable; it is a right which vests in every human being as he enters the world . . . There is in nature no such thing as a fee simple in land. There is on earth no power which can rightfully make a grant of exclusive ownership in land. If all existing men were to unite to grant away their equal rights, they could not grant away the right of those who follow them. For what are we but tenants for a day?")

248 See Jefferson to James Madison (October 28, 1785), Boyd VIII: 682 (suggesting that when concentration of land ownership combines with selfish or short-sighted land management to thwart society's long-term best interests, the laws of property have been so far extended as to violate natural right). In order to discourage such over-concentration of land ownership, Jefferson recommended both the abolition of primogeniture, and a graduated property tax which would tax "higher portions of property in geometrical progression as they rise." See also T. Jefferson, Autobiography 1743-1790, in 1 THE WRITINGS OF THOMAS JEFFERSON 1, 49 (P. Ford ed. 1892) (warning that to allow families to pass property "from generation to generation in the same name" would create a "Patrician order," devoted to royal interests.)

249 George, PROGRESS AND POVERTY at 341, 347 ("If one man can command the land upon which others must labor, he can appropriate the produce of their labor as the price of his permission to labor. . . .The one receives without producing; the others produce without receiving. The one is unjustly enriched; the others are robbed . . . If chattel slavery be unjust, then is private property in land unjust. For let the circumstances be what they may - the ownership of land will always give the ownership of men, to a degree measured by the necessity (real or artificial) for the use of land. This is but a statement in different form of the law of rent. And when that necessity is absolute - when starvation is the alternative to the use of land, then does the ownership of men involved in the ownership of land become absolute"). See also Susan George, HOW THE OTHER HALF DIES, ("The most pressing cause of the abject poverty which millions of people in this world endure is that a mere 2.5% of landowners with more than 100 hectares control nearly three quarters of all the land in the world - with the top 0.23% controlling half.")

250 See Kurt Vonnegut, .

251 Id. at 351. Viewed in this light, the continued presence of feudal language in American real property law ("landlords," "land titles," etc.) can be understood as something more than a linguistic carryover from the past, it is an indicator of the longstanding reluctance in our country to fully abandon the rights and titles of nobility. , .

252 See The Federalist, No. 84, at 577-78 (Alexander Hamilton) (J. Cooke ed., 1961) ("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.)

253 COMPACT EDITION OF THE OXFORD ENGLISH DICTIONARY (Oxford University Press, 1988). See Magna Carta, par 21 (1215) ("Earls and barons shall not be amerced except by their peers, and only in accordance with the degree of the offence.")

254 Such concerns were not wholly unfounded. As regards early entanglement of European nobility with American politics, see Earle, W. H., "The Phantom Amendment and the Duchess of Baltimore," American History Illustrated 33-39 (Nov. 1987); Ames, Herman V., "The Proposed Amendments to the Constitution of the United States During the First Century of Its History," H. Doc. 353, 54th Cong, Sess. 2 (1897) 187-188; Conklin, Curt E., The Case of the Phantom Thirteenth Amendment: A Historical and Bibliographical Nightmare," Law Library Journal 121-127 (Winter 1996).

255 Compare Delgado at 115-116 (proposing an anti-nobility analysis under which "a court will find state action unconstitutional if it:
1. Confers an actual title of nobility, or
2. Confers all or many of the following indices of nobility:
(A) significant and enduring advantages of wealth and political influence
(B) significant and enduring advantages with respect to the exercise of basic human faculties, especially those concerned with speech and thought;
(C) perception by others as special or superior;
(D) membership in a "closed" class, i.e., one that will resist entry by outsiders regardless of merit.")
Delgado notes that his analysis (similar in many respects to the analysis I have proffered above) represents a symmetrical complement to existing 14th Amendment equal protection analysis. Whereas equal protection analysis addresses unfavorable treatment of discrete, insular minorities, his anti-nobility analysis addresses favorable treatment. Whereas equal protection analysis prevents government from stigmatizing, his analysis prevents government from ennobling. And whereas equal protection focuses on the political disenfranchisements of groups, his analysis focuses on the creation of excessive political powers in other groups. Both analyses attach high significance to the insularity and permanence of the favored or disfavored groups.






261 See also John Locke, Second Treatise at 216 (explaining that government dissolves itself and releases the people from its authority to the extent that it surrenders sovereignty to foreign powers).

262 See Thomas Paine, DISSERTATION ON GOVERNMENT 186 (warning that grants of perpetual corporate charters would constitute illegitimate infringements upon the sovereignty of later generations). Compare Morey v. Doud, 354 U.S. 457 (1957), overruled, City of New Orleans v. Dukes, 427 U.S. 297, 306 (1976) (per curiam). In Doud, the court struck down an Illinois statute which exempted the American Express corporation, by name, from a requirement that firms selling money orders obtain a license and submit to regulation. The Court objected to the statute's creation of a "closed class" which was granted a perpetual and unreviewable advantage. Contrast Delgado, at 126 n.177, 178 and accompanying text. Delgado reviews the Doud case and concludes that "American Express is a corporation, not a natural person . . . Antinobility analysis would not, therefore, have saved Doud from overruling. . . . An ennobled corporation seems alien to the framers' intention and ordinary intuitions. . . . The scheme is upheld only by virtue of American Express' corporate status and the absence of any political advantage conferred by the gift."
The preferential treatment which Delgado affords corporations in his anti-nobility analysis appears counter-intuitive and logically unsupportable.