I would argue, logically, that when congress exempts itself from laws
and taxes that all other citizens and legal residents of the US are
required to comply with, based solely on their position of authority
in the government this is a defacto title of nobility. . . .
Can a valid arguement be made in court that is in fact a violation of
the Constitutional ban on awarding titles of nobility? Has this ever
been tried before?
No. This is not a valid argument. It would be considered frivolous.
Congress is not a person, and titles of nobility inherently and by definition apply to individuals. The privileges are also not hereditary, which the case law has seen as the defining feature of a title of nobility.
The notion that Congress cannot grant people legal privileges by virtue of a non-hereditary government position is absurd. Almost every government position from notary to judge to attorney-general and President confers legal privileges and rights when acting in an official capacity, and no one has ever claimed that these rights, limited to the duration for which one holds the office and as acting in an official capacity while doing so, amounts to a title of nobility. This idea is too absurd for anyone to have even proposed it.
No precedent has ever held that any act of anyone in the United States government or state government has violated the title of nobility clause.
Legal authority establishing that a title of nobility for constitutional purposes is a heredity grant carrying some legal privilege can be found in a previous Law.SE post discussing what constitutes a title of nobility. Cutting and pasting from my prior answer to that question:
Black's Law Dictionary (5th ed. 1979) defines "Nobility" as follows:
In English law, a division of the people, comprehending dukes,
marquises, 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
patent, i.e. by royal grant of any dignity and degree of peerage; and
they enjoy many privileges, exclusive of their senatorial capacity.
Letters patent still exist in both English and American law and primarily refer to document in the nature of a deed that transfers real estate from the sovereign to a private individual.
The connection is that most (although not all) titles on nobility were personal rights incident to being the feudal owner of a parcel of land (the right to say who inherits land from an individual was originally entirely governed by law without the discretion of the owner to give it to someone else, but this was reformed gradually in the "early modern" period of English history and was fully reformed by the Victorian era except as to the titles of nobility historically associated with the land).
Titles of Nobility are hereditary.
An appointment to a position for life (the moral equivalent of a "Life Lord" in England or a Senator in the Canadian Parliament, or a federal judgeship in the U.S.) is not prohibited.
But, no rights, other than citizenship or a right to an inheritance (in the absence of a will providing otherwise), that is hereditary may be granted.
The Framers of our Constitution lived at a time when the Old World
still tolerated in the shadow of ancient feudal traditions. As
products of the Age of Enlightenment, they set out to establish a
society that recognized no distinctions among white men on account of
their birth. See U.S.Const., Art. I, § 9, cl. 8 ("No Title of Nobility
shall be granted by the United States").
Fullilove v. Klutznick, 100 S.Ct. 2758, 448 U.S. 448, 65 L.Ed.2d 902 (1980) dissenting opinion at Footnote 13 (overruled on other grounds). This case discusses citizenship issues.
Such pure discrimination is most certainly not a "legitimate purpose"
for our Federal Government, which should be especially sensitive to
discrimination on grounds of birth.
Distinctions between citizens solely because of their ancestry are, by
their very nature, odious to a free people whose institutions are
founded upon the doctrine of equality. Hirabayashi v. United States,
320 U.S. 81, 100. From its inception, the Federal Government has been
directed to treat all its citizens as having been "created equal" in
the eyes of the law. The Declaration of Independence states:
"We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty and the pursuit of
And the rationale behind the prohibition against the grant of any
title of nobility by the United States, see U.S.Const., Art. I, § 9,
cl. 8, equally would prohibit the United States from attaching any
badge of ignobility to a citizen at birth.
Mathews v. Lucas, 96 S.Ct. 2755, 427 U.S. 495, 49 L.Ed.2d 651 (1976) dissenting opinion at footnote 3. This case discusses illegitimacy discrimination.
Some state constitutions use the phrase "no title of nobility or hereditary emolument, shall be passed," which emphasizes the hereditary component.
Titles of Nobility confer legal privileges.
Titles of Nobility in U.K. law at the time the U.S. Constitution was adopted in 1789, among other things, conferred immunity to a trial by an ordinary jury and instead gave rise to a jury of one's peers (i.e. other nobles of the same rank or higher) if one was charged with a crime. This was enshrined in the Magna Carta of 1215 CE.
This logic is still retained on a residual basis in U.S. courts-martial where a court martial proceeding of an officer can only be tried by other officers (who must be of equal or greater rank, if possible). 10 U.S.C. § 825.
The historical link between the two concepts is that the British aristocracy derives mostly from grants of feudal rights to members of the conquering Norman army in 1066 CE proportionate to military rank and in accord with military hierarchy with modest modifications over time.
The goal of the prohibition of Titles of Nobility was to prohibit titles of nobility that gave someone an unequal status in law in this fashion. So, a mere honorary recognition would be distinguished from a title that gave someone rank and privilege (on a hereditary basis).
A dissent in the famous Dred Scott case, to which the birthright citizenship clause of the 14th Amendment enacted less than a decade later was a response, illustrates the concern:
It is, in effect, whether the Constitution has empowered Congress to
create privileged classes within the States, who alone can be entitled
to the franchises and powers of citizenship of the United States. If
it be admitted that the Constitution has enabled Congress to declare
what free persons, born within the several States, shall be citizens
of the United States, it must at the same time be admitted that it is
an unlimited power. If this subject is within the control of Congress,
it must depend wholly on its discretion. For, certainly, no limits of
that discretion can be found in the Constitution, which is wholly
silent concerning it; and the necessary consequence is, that the
Federal Government may select classes of persons within the several
States who alone can be entitled to the political privileges of
citizenship of the United States. If this power exists, what persons
born within the States may be President or Vice President
60 U.S. 578
of the United States, or members of either House of Congress, or hold
any office or enjoy any privilege whereof citizenship of the United
States is a necessary qualification, must depend solely on the will of
Congress. By virtue of it, though Congress can grant no title of
nobility, they may create an oligarchy, in whose hands would be
concentrated the entire power of the Federal Government.
Dred Scott v. Sandford, 15 L.Ed. 691, 60 U.S. 393, 577-578 (1857) dissenting opinion (majority opinion subsequently overruled and superseded by constitutional amendment). In this infamous case:
The United States Supreme Court decided 7–2 against Scott, finding
that neither he nor any other person of African ancestry could claim
citizenship in the United States, and therefore Scott could not bring
suit in federal court under diversity of citizenship rules. Moreover,
Scott's temporary residence outside Missouri did not bring about his
emancipation under the Missouri Compromise, which the court ruled
unconstitutional as it would "improperly deprive Scott's owner of his
The primary concern behind the clause was that the United States not become a monarchy.
The problem that the founders sought to counter with the prohibition
on granting titles of nobility was not the honorific, but rather the
special rights and benefits that would be conferred to those people
that set them apart from, and make them above the laws that every one
else is required to follow.
But, the legislative history from the constitutional convention does not bear this out.
In the debates of the Federal Convention Benjamin Franklin discusses his "apprehension" that the government of the States may "end in a Monarchy" and describes this possibility as "Catastrophe." See JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787 REPORTED BY JAMES MADISON 32 (Adrienne Koch ed., 1966) (1927) at 53. John Dickenson, although noting the merits of limited monarchy, stated: "A limited Monarchy however was out of the question. The spirit of the times-the state of our affairs, forbade the experiment, if it were desireable." Id. at 56-57. Edmund Randolph noted that the "permanent temper of the people was adverse to the very semblance of Monarchy," id. at 58, and argued against a single executive, regarding it "as the foetus of monarchy." Id. at 46.
Indeed, sovereign immunity was part of the original plan of the constitution as Justice Anthony Kennedy explained in Alden v. Maine, 527 U.S. 706 (1999), in the course of explaining the 11th Amendment which codified a small subset of sovereign immunities but is not the source of those immunities:
[S]overeign immunity derives not from the Eleventh Amendment but from
the structure of the original Constitution itself. ... Nor can we
conclude that the specific Article I powers delegated to Congress
necessarily include, by virtue of the Necessary and Proper Clause or
otherwise, the incidental authority to subject the States to private
suits as a means of achieving objectives otherwise within the scope of
the enumerated powers.
Thus, rather than being unconstitutional, the decision of Congress to exempt itself from generally applicable laws is actually part of the design of the original constitution.