Article 1, sections 9 & 10 of the US constitution prohibit granting titles of nobility by the federal government or the states. What exactly is a title of nobility for these purposes? Why is (say) the title of "Kentucky Colonel" not considered a title of nobility as opposed to some theoretical knighthood that could be granted by the state of Kentucky?
Generally speaking the Titles of Nobility clauses in Article I, Sections 9 and 10 of the U.S. Constitution, were aimed at barring hereditary grants of special privileges which is what it means by "Titles of Nobility". In particular, it was mostly aimed at preventing a monarchy from arising in the U.S.
This said, there is extremely little case law directly interpreting the the Titles of Nobility clauses, mostly because neither the federal government in the United States, nor any state, has shown much inclination to grant titles of nobility. Most cases discuss the Titles of Nobility clauses in order to interpret other clauses of the constitution (usually in dissenting opinions as part of a parade of evils).
A Titles of Nobility amendment to the U.S. Constitution was also proposed in 1810, but never adopted, although many conspiracy theories claim that it was adopted and is in force. This would have automatically revoked the citizenship of anyone awarded a title of nobility. As Wikipedia explains:
It has been claimed that the Titles of Nobility Amendment became part of the Constitution. It was erroneously referred to as the Thirteenth Amendment in some early 19th century printings of the Constitution.2 Between 1819 and 1867 the statutory law code of Virginia included it as well. The term "Thirteenthers" has sometimes been used in recent years to refer to those who mistakenly believe this amendment was ratified in the 1810s, and also for those who today wish to see this amendment adopted.2 This misconception has become significant because it is yoked with another misconception—that a lawyer's use of the word or abbreviation of "Esquire" after his name is a title of nobility acquired from a foreign power—and so some litigants and others have tried to assert that lawyers have lost their citizenship or are disqualified from public office.
Consistent with the discussion below, the title "Esquire" for lawyers as used in the United States, is not a title of nobility because it cannot be passed on to the children of the people who hold it (in either English or American usage) and because it does not, in U.S. usage, at least, confer legal privileges on a hereditary basis. (In 19th century English usage, certain sons of nobles who do not have a noble title themselves were properly addressed "Esquire" and some minor privileges may go with that title, so in that context it may have historically been a Title of Nobility even though this has never been part of the American use of the term "Esquire.")
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 of 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 Happiness."
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 legal property."
- The primary concern was that the United States not become a monarchy.
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.
Since a Kentucky Colonel, or a Prom King, or an Apple Butter Queen or what have you, are merely honorary without conferring legal rights and privileges, and are not hereditary, they do not constitute true Titles of Nobility in the constitutional sense.
This is so even though a Kentucky Colonel is appointed by Letters Patent in a manner that apes the process by which Titles of Nobility were awarded in English law at the time that the Titles of Noblity Clause was enacted.
IMHO it may not be certain exactly what the writers of the constitution considered to be titles of nobility.
A noble is defined as a person with a higher and separate legal and social status than a non noble.
But England/Great Britain/The UK was exceptional in restricting legal noble status to the holders of nobility titles who had seats in the House of Lords in the Parliament. In most European countries the vast majority of the nobility were untitled.
Almost all European noble titles had forms based on political offices in previous eras. The Latin words Comes (count) and dux (duke) were originally the titles of later Roman officials and officers. In the early medieval Frankish kingdoms, counts were the royal governors of small areas based on the Roman city states, while dukes were the royal governors of larger areas containing several counties. The rich and powerful Frankish families were considered nobles but didn't have any hereditary titles.
Over time, powerful families made governor ships hereditary, so that countships and dukedoms were passed on from father to son. In the Middle ages a title of Duke or X or Count of Y meant that the person was the hereditary governor of the province of X or Y with broad political powers in his fiefdom which he held as a vassal of a feudal superior.
As late as 1806 the fursten or "princes" of the Holy Roman Empire included landgraves, margraves, counts palatine, dukes, and rulers with the title of furst or prince, all ruling various states of the Empire with powers vaguely similar to states in the United States or cantons in Switzerland.
In the Middle Ages it became common to grant titles of nobility without any political powers. Someone could then be made Count of A without being granted any political authority over the region of A.
For example Karl I (1569-1627) was granted the title of Prince of Lichtenstein in 1608 but did not gain any political powers. The title was named after Lichtenstein Castle in lower Austria that was the first seat of his family but which they had not owned for almost 400 years. His heirs bought the Lordship of Schellenburg in 1699 and the County of Vaduz in 1712, and in 1719 Emperor Charles VI united them into a principality that was named Lichtenstein to agree with the preexisting title.
If a noble title does not come with any political power over the named territory the noble does not have to live in the titular region. For example, the Duke of Norfolk does not have to live in or visit Norfolk and his main residences are Arundel castle in Sussex and Carlton Towers in North Yorkshire.
It is possible for a noble title to name a place outside of the realm that grants the title. For example, Lord Nelson was made Baron of the Nile, and after his death his brother was made Earl Nelson of Trafalgar and of Merton in the County of Surrey. Napoleon made Marshal Ney Prince de la Moskowa".
And it is possible to grant a noble title without mentioning a place in it. For example, King Charles IV of the Spanish kingdoms granted Manuel Godoy y Alvarez de Faria the title of Principle de la Paz ("Prince of the Peace") for negotiating the Peace of Basel in 1795.
Thus it would be possible to posthumously grant Shakespeare the title of "Duke of Hamlet, Marquess of MacBeth, Earl of Elsinore, Baron of Birnam Wood, etc." or Charles Darwin the title of "Duke of Darwinism and Earl of Evolution".
I believe that various provisions for equal rights under the law (often violated for persons of "inferior races") make it unconstitutional to grant anyone noble rights or privileges. Thus the provision against granting titles of nobility must prohibit granting titles of nobility in the form of Baron of A, Viscount of B, Margrave of C, Prince of D, Duke of E, etc.
However, I think that it would still be constitutional for the Federal government or state governments to grant titles of ROYALTY – such as subking, underking, little king, king, high king, king of kings, or higher ranks – without any political powers or privileges attached.
The short lived Kingdom of Thessalonica in the Latin Empire was conquered by the "Byzantines" in 1224. King Demitrius willed his title and claim to Frederick II, Emperor of the Romans, in 1230. Frederick granted it to Margrave Boniface II of Montferrat, the closest relative of Demitrius, in 1239. the claim was eventually passed in 1284 to Emperor Andronicus II, the actual ruler of Thessalonica.
But exiled Emperor Baldwin II sold the kingdom of Thessalonica to Duke Hugh IV of Burgundy in 1266. In 1274 his son titular Emperor Philip granted the kingdom of Thessalonica to Philip of Sicily, making three claimants without any actual power in the former kingdom.
And in India it was common for the Mughal Padishah and the British raj to grant titles of honor without territories to rule. For example, Ramanath Tagore was made a raja (king) in 1874 and a maharaja (great king) in 1877 despite not ruling a kingdom. The Mughals and possibly the British granted titles as high as mahrajadhiraja bahadur (which was one step above great king of kings).
It means making a person a noble:
Nobility is a social class, normally ranked immediately under royalty, that possesses more acknowledged privileges or eminence than most other classes in a society, membership thereof typically being hereditary.
Kentucky colonel is not a title of nobility because it does not give the recipient any privileges or eminence than they already possess. In that respect it is no different from other medals or honors like the National medal of Science or the Congressional Gold Medal.