The New York Times Caucus blog reports (quoting Prime Minister Gordon Brown) that the Queen of England "has awarded an honorary Knighthood for Sir Edward Kennedy." A couple of people have asked: Does this require Congressional approval, under article I, § 9 of the Constitution, "no Person holding any Office of Profit or Trust under [the United States], 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"?
I'm no expert on the subject (though I'm not sure whether anyone is), but my tentative thinking is that membership in the Senate or the House is not an "Office of Profit or Trust under [the United States]." Three pieces of evidence for this:
Article II, § 1 provides that "no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector." This strongly suggests that "Senator or Representative" and "Person holding an Office of Trust or Profit" are two different things.
Article I, § 6, provides that "no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." This likewise suggests that "Office under the United States" doesn't include membership in Congress.
There's 1790s Senate precedent for the proposition that a Senator is not a "Civil Officer[] of the United States" for purpose of impeachment, though the question is not free of controversy.
Note that the situation with Alcee Hastings, an impeached and removed federal judge who became a Representative, doesn't shed light on the subject. Article I, § 3 does allow the Senate to include "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States" as part of the "Judgment in Cases of Impeachment"; the Hastings situation might thus have tested whether membership in Congress is an "Office of honor, Trust or Profit under the United States" -- but it didn't, because the Senate didn't include such a disqualification within its judgment (a decision that was for the Senate to make).
If any of you have more information on this, please do pass it along, since this post is the result of only a bit of quick research on my part.
And its quaint of you to imagine the rules apply to important people.
But judges can only remain in office "during good behavior." That seems like a different standard than the impeachment standard of high crimes and misdemeanors. Is there any constitutional reason why Congress could not set up some kind of commission that could remove judges for bad behavior?
See: THE "MISSING THIRTEENTH AMENDMENT": CONSTITUTIONAL NONSENSE AND TITLES OF NOBILITY 8 S. Cal. Interdis. L.J. 577
In other news, denying a dying man an honorary title would be petty and vindictive.
While they are about it, perhaps the Irish can honor the Kennedy tradition and give a sinecure to Caroline Kennedy (Ambassadress to Malta?) to give her something to do, at a safe distance from the U.S.
qwerty: No one is getting any "land".
Hmm, perhaps becoming the foremost authority in this field would be a better than my previous plan of being the nation's leading Third Amendment scholar. . . .
Either one won't take so much time as to prevent you from commenting here.
THere's an argument that people can be elected to office and still have a title because the people themselves would be directly involved in choosing the person and would presumably trust him.
I personally share the revulsion of titles and nobility that the founders had. I think having QEII speaking to a joint session of congress had them turning in their graves.
But I'm also repulsed by the mere existence of Teddy Kennedy as a senator, so I don't think my opinion will be very influential to my family in Massachussetts.
The article you cite is interesting, but it doesn't give much beyond assertion -- and that about whether an honorary knighthood is a "title of nobility." I'm not sure whether it is, but I am pretty sure that it is a title.
The press has been treating the Kennedys like royalty since 1960 or so, and they didn't need Congressional approval for that.
Cite?
The nobility clause is there because the writers of the constitution did not want officials beholden to foreign sovereigns, as you wrote. I see no basis for claiming they had anything as strong as "revulsion" for the concept.
and
(This last section is probably someone's overenthusiasm, though, since apparently Edward Kennedy isn't getting a GBE, but only a KBE and theferore does not belong in the list of knights grand cross. Still, I thought I'd include it for reference.
The then prime Minister of Canada revoked Black's (sorry, Lord Black of Crossharbour) citizenship, or something, because of the knighthood and some sort of dual citizenship ensuing therefrom... you lawyers might enjoy learning more about all that.
John Adams at least liked titles and the first senate spent a good bit of time arguing about what title to use to address the president. Adams favored "His Majesty the President" or something similar, but was voted down.
As for the US constitutional question involved, as prof. Volokh already wrote, it is almost impossible to be sure. Those who are more originalist or textualist would probably consider this kind of knighthood a "title". Those who are more interested in the object &purpose of these kinds of constitutional provisions, like myself, would probably feel that it is petty to argue about it, and that in any event the fact that this honours comes with absolutely no strings attached should be enough to declare the nobility clause inapplicable.
Arguably, the question presented may be governed by the Foreign Gifts and Decorations Act of 1966, codified at 5 U.S.C. sec. 7452, which grants advance congressional consent for federal employees (defined for purposes of this section as including Senators and Representatives) to accept gifts and decorations from foreign governments under certain circumstances, and provides for them otherwise to become government property. It is not clear from the face of the statute whether an "honorary knighthood" would constitute a "gift" or "decoration" as defined therein.
If the British want to call Edward Sir that is their problem.
"Kennedy would need permission ... from the ... Senate Select Committee on Ethics" Hmmmmm
Unless the age old animousity have been put aside in recent times. I don't know, I'm not Irish.
It doesn't make it worthless, it just changes the rules a bit to take into account that the recipient is not a subject of HM.
They don't, that's one of the consequences of this knighthood being honourary. He just gets to put KBE behind his name.
I tried a google but only got a bunch of stuff about riverboat gambling.
Alan Greenspan commented on this issue when he received his honorary knighthood (he was Fed chair at the time).
Arise, Earl of Cloves.
Arise, Duke of Brittingham.
Arise, Baron of Munchausen.
Arise, Essence of Myrrh,
... Milk of Magnesia,
... Quarter of Ten.
There's more to it than that. The common law gave certain privileges to nobles that commoners didn't have. The rejection of titles of nobility was a rejection of those privileges, in essence an equal protection clause.
Per Wikipedia, and law.cornell.edu:
I repeat, is the FedRes chairman's paycheck drawn from the uS Treasury?
Knighthood is just membership in an order conferred by a state: it's a convention of English usage that we say "Sir John Smith" if John Smith is an Englishman with a KBE, but not if he's an Canadian with a CC, but the underlying fact is the same.
Even if this is actually an issue, I can't imagine anyone in Congress opposing it. This sort of thing fits right in with all the other non-serious business of renaming post offices and other such time wasting exercises.
On the other hand, it would keep them away from doing the serious business of spending 1 quadrillion dollars (after some inflation). So maybe we should be knighting people left and right and having them take up all their time on whether it should be allowed.
It's not a title of nobility, as has been pointed out several times on this thread, so the first sentence of art. I, sec. 9, cl. 8, doesn't apply. Clearly there's no constitutional significance in adopting a convention of prenominal "Sir", just as there's no constitutional signifance in the fact that some state governors are traditionally "The Honorable John Doe" and some are traditionally "His Excellency John Doe".
(Practically, of course, a proposal to rename the Presidential Medal of Freedom the "Order of Washington" or somesuch would be a complete non-starter.)
I found this quote kind of strange, as it at least implies that there are many other countries which also grant honorary knighthoods to US citizens. I suppose there may be, but I can't think of any, as mellifluous as Norman Ritter von Schwartzkopf sounds.
http://www.federalreserve.gov/generalinfo/faq/faqbog.htm#3
But more importantly, you do not have to be paid by the U.S. Government to be an officer of the United States. You merely have to have legal authority for substantial executive decision making on behalf of the government.
mg
Whether it should be considered a title for purposes of the Constitution, decades of custom are that "honorary" knighthoods are not.
The theory, as I understand it, is that a "present or Emolument" is banned because it could be thinly-disguised half of bribery, or (more benignly) cause an official to be dependent on the favor of a foreign sovereign. Similarly, an office or "real" title actually has formal obligations (however attenuated in practice) to the foreign sovereign, and accepting such is a clear case of pledging loyalty to a foreign sovereign.
On the other hand, an "honorary" title, carrying no obligations or privileges even in theory, involves no dependence on nor any obligation of loyalty to the foreign sovereign. Accordingly, it lacks the essential shadow of divided loyalty that marks a forbidden "present, Emolument, Office, or Title, of any kind whatsoever".
(My opinion would be yes as regards gifts, no as regards honours of no tangible value. Even Senators have a First Amendment to receive praise.)
But I'm sure in this case it's irrelevant, as the only restriction is approval by the Select Committee on Ethics of the Senate, which I assume occurred or will occur.
France often grants Americans membership in its orders (the starting grade of which is usually "chevalier"). They're not commonly called "knighthoods" in English, but again that's just a nominal distinction. I think that in the Second World War, some Americans were inducted in Dutch orders of knighthood.
huh342?: I followed the link and I did not find anything in the text that stipulated that the FedRes' governors are paid from the uS' Treasury. Did I miss something? Could you highlight the relevant text?
I still am not persuaded that the FedRes is an uS government entity. Chartered by the Federal government, yes. But the FedRes is still not government. If it is government is it Executive (art.1) or Legislative (art.2). I am pretty sure that we can agree that it is not judicial (art.3)
Well, some knighthoods come with a seat in the House of Lords. Those are surely not honorary.
As for those who say that any sort of "title" should count, that would seem to have unintended consequences. Wouldn't it prohibit Americans from accepting foreign university degrees (earned or honorary) or foreign professional licenses that entitle one to a title such as "Doctor", "Esquire", or "Engineer"? Note that this issue does not disappear if you limit the restriction to titles conferred by governments since in many countries universities are operated by the government as are professional licensing boards.
In order to exclude such titles, it seems that we must read "title" as meaning "noble title", in which case the issue of whether a title is honorary or real becomes relevant.
Is that so clear? An alternative reason for it being in Article I is that it deals with a power of Congress, namely to permit or prohibit an officer of the US from accepting a title.
Informed a moment later that Jagger had already accepted, Keith thought for a moment, then smiled: 'Sir Brown Nose it is, then!'
I suspect Mr. Richards is not high on the list to join Sir Mick in the annals of royal puffery. Another reason to like Keith all the more, from my perspective.
+800 billion
(did you guys also wonder if Hillary could or couldn't be the SecState since she was a senator who voted to increase pay ...)
Same person who has standing to challenge Pres. Obama's citizenship claim.
No they don't. Some lords are also knights but no knighthood gives a seat in the House of Lords and in fact few peerages do these days. Knighthood has no constitutional significance whatsoever.
What hasn't been touched on is why Kennedy, has been given a knighthood? Even leaving aside drowning various women etc, this is a long time supporter of terrorism even if he did seem to back away a bit from it post 911. It seems to make about as much sense as the US Government giving its top gong to a leading (intellectual rather than hands on) supporter of Al Qaeda.
That depends on which Founder you are talking about. Jefferson: Yes. Hamilton: No. His Rotundity, John Adams: Not.
real knights are entitled to style themselves "Sir" but honorary knights are not. So there is a difference, albeit rather subtle.
As others have noted, I think the word "title" means title of nobility, which an honorary knighthood is not (and even a "regular" knighthood might not be). My unresearched, insomniac assumption would be that the prohibition is intended to cover British-style titles (i.e. the system that was familiar!), i.e. being a member of the hereditary peerage with a seat in the House of Lords (yes, I know there have been more recent changes in the U.K., if I recall eliminating all but a handful of the hereditary peers) and thus a role in Parliament (the government). Prohibiting membership in such a group is like prohibiting someone holding U.S. office from becoming a member of a foreign government, a good idea in most situations.
Until the early part of the 20th century when the House of Commons together with the King forced the House of Lords to limit its own authority (under threat that if it did not so vote, the King would appoint sufficient life lords to pass the measure), the House of Lords was essentially the equal of the House of Commons except with respect to monetary bills.
I think that most titles nowadays are "honorary" in the sense that they carry no political power in a foreign country, and so depending upon one's interpretation might be acceptable. The Holy See grants orders of knighthood, and used to (until sometime in the 20th century, I think pre-Vatican II) also award titles -- I think I read once about Americans receiving such titles, albeit not ones holding office. It certainly doesn't carry any powers, nor do most countries' titles, with the exception (until recently, at least) of the U.K.
I share a distate for Americans using titles, and regardless of politics, I think an honorary knighthood for former President Reagan was disgusting. That's not anything against him or the U.K., just that if there's one American who should definitely not be accepting even "honorary" things like this it's a President or former President! Not to mention Gen. Schwarzkopf, etc. (the Marquis de Lafayette had his title before he was commissioned -- on another note, I also like to use him as an example when someone complains about in e.g. NATO joint military operations, that Americans may be under the command of foreigners...).
Is it not the case in the US that whatever public office you've had you keep the title for life? So it's Senator this, Secretary, Governor, Mr Ambassador, Mr President etc regardless of whether you are in the job, have just left or gave it up decades ago. This phenomenon is unknown elsewhere in the English speaking world and I've often wondered whether it's some sort of attempt to compensate for a lack of other titles.
Perfect comment.
Interesting distinction between the two types of office, strange to me that "profit" could be a separate type. I guess it is a reference to an office where you were paid a portion of customs or taxes you collected.
I have to stick up for John Adams against some comments here. He maybe got a bit vain later but he was as hot a republican as Jefferson.
This position is weakend by the fact that, at the time the Constitution was written, those titles were not issued by government entities, and many are not, to this day. The title of Doctor certainly existed then, but it was given by the Medical Society which was private.
But going back to the FF, did they consider a title such as Doctor to be a "title" with reference to the prohibition. Would they have chosen to bar an individual who held a doctorate from a foreign, government owned institution?
Would They have barred an individual for whom the Queen had sung, "For he's a jolly good fellow," which is about the sole import of an hnorary knighthood today?
I think your summation that
makes a lot of snse in this context.
Bill: yes, it is clear that it "weighs in favor" of a conclusion that it applies to members of Congress. It is not clear that this is the correct conclusion (because other things weigh against that conclusion).
Also, the fact that this provision deals with congressional power to consent to a foreign title is not necessarily why the Framers put it in Article I. Lots of constitutional provisions that deal with powers of Congress appear in Article II, III, and IV, e.g., power to create inferior federal courts, the power to determine time of elections, and the power to regulate federal territories. So the placement of this particular provision in Article I suggests it is more closely tied to the legislative branch.
But I can still perform honorary surgeries with my honorary medical degree, yes?
For jousting purposes, are honorary knights in the same league as actual knights? Could we see a match up say between Sir Roger Moore and "Lord Chappaquiddick" anytime soon?
I think this was a form of address rather than a title. Judges and mayors are typically addressed as "Your Honor" or "His Honor," but they are not "Honors." Bishops are frequently addressed as "Your Grace" or "His Grace," but they are not "Graces." Princes of the Catholic Church are typically addressed as "Your Eminence" or "His Eminence," but they are not "Eminences." They are cardinals. I am addressed as "Mr.," but I am not a "Mr."
* After the first hundred years or so have gone by, the Commerce clause is found to be a catch all clause to cover anything the feds wants to do; unless it offends a SC Justice at the time.
* Right to abortion found under mysterious privacy rights that don't also cover drug use or other actions one does in private.
* Anything to do with the 2nd Amendment.
* Incorporation of rights under 14th - some but not all and only part of some of them. We'll drag our feet on this to keep some drama going.
Although I might like the outcome of some of the decisions made, I cannot honestly say they make any sense.
I don't think anyone's twisting your arm.
Maybe not you, but other people can.
The Constitution is not as simple as a coloring book for kids. The shades and hues have always required interpretation, from before the time of Marbury. If you can't handle subtlety, and issues on which reasonable minds may have different opinions, it's going to be rough for you.
Yet the decisions you refer to are ones you don't like. This is outcome-based constitutionalism. If you like a decision, it "makes sense." If you don't, it doesn't. Meanwhile, the rest of us will continue to debate difficult constitutional questions--just as Jefferson and Marshall and Hamilton and Madison did a couple of centuries ago.
I didn't say that I didn't like the outcome of any of those decisions, I just said I couldn't understand the reasoning, and those were the ones I was most familiar with. I can see how you would infer what you did, but you are putting words in my mouth there.
You are most certainly right on most of what you said about me. I'm not very smart in the ways of the law. I have a very immature understanding of constitutional jurisprudence; any jurisprudence for that matter. But don't try to tell me that interpretation of subtle hues is the reason that the commerce clause can now be used to cover any conceivable application. The court saw where it needed to go and got there at any cost.
Even when reasonable minds may have differing opinions, there can be a right side and a wrong side. We do not have to accord every opinion the same weight; especially when some of those opinions are intellectually dishonest. You are right however that many constitutional interpetations have been rough on me as well as my countrymen.
May I assume that your country is the U.S, and that your "countrymen" are Americans? If so, many constitutional interpretations have been cheered by your "countrymen." If decisions have strengthened your rights, struck down laws that oppressed you--then you have cheered. Can you point to any decisions that weakened your rights, upheld laws that oppressed you? If so, please cite them. I would suggest again that you just don't like the outcome.
You are right. My statement did not in fact reflect my true feelings on the matter. I should have just said something about living under a judicial fiat and left it at that. My original was not an appropriate post for this discussion. It was just a quick rant voicing my frustration with trying to understand the subtleties of constitutional interpretation. I will avoid posting inappropriately in the future. Hell, I'll probably avoid posting in VC at all in the future, since I don't really add any substantitive value to the discussion.
A real knighthood involved a ceremony in which the would be knight personal and in the presence of the feudal superior swears a voluntary solemn oath of loyalty and allegiance to a feudal superior, in this case the Queen, which would contradict the oath of allegiance to the United States sworn by all public officials, including legislative ones.
Generally, a knighthood would also carry with it some actual duty, however trivial, to symbolize this loyalty obligation. There is a cottage industry within the British equivalent of the Library of Congress cataloging all of the personal obligations that various people with titles owe.
Such an oath of loyalty is grounds for revocation of U.S. citizenship under U.S. immigration and naturalization laws, even for natural born citizens.
In contrast, it isn't obvious to me that an honorary knighthood requires any affirmative act of acceptance, let alone an expression of loyalty, from the beneficiary.
Similar considerations were involved in the largely spent Indians not taxed language in the U.S. Constitution, and in the constitutionally protected right to affirm rather than swear to uphold the constitution. The Founders really cared a lot about oaths, even though these days we tend to find the concept a bit silly.
Also, the "present, emolument" clause is given a great deal of practical enforcement in the federal bureaucracy. The current practice, which is authorized as required by Congress, is that presents from foreign sovereigns must be reported in excruciating detail by all federal employees receiving htem along with their expense reports, and surrendered to the United States to become federal property. Warehouse loads of such gifts are received every year, and some of them are quite pricey. The Washington Post recently did a story on all of the fine jewelry that Condi Rice had to itemize and surrender from Middle Eastern monarchs.
I also think it would stretch the constitutional meaning of "title" too far to include mere honorifics of any kind. For example, I don't think it would be unconstitutional for a high government official from the United States to be called sensai in Japanese, even though that is an honorific not reserved for everyone.
States are forbidden from granting titles of nobility, and the federal government can't grant them either. I've wondered from time to time if the customary practice of using the word "Esquire" to identify lawyers doesn't violate this -- notably this does involve a voluntary oath to both of state and the federal government, carries with it duties and privileges, and makes one an "officer of the court" a post which has some real life consequences.
Another way to read the no titles clause is to focus on it in connnection with the common law (but not express constitutional) concept of a jury on one's peers. Hence, no one may be exempted from being tried by inferiors, which was one of the traditional perks of a title of nobility at the time the constitution was written. This poses the interesting question of whether there are constitutional problems with the right to be tried by ones peers (and hence, in the case of officers not by enlisted soldiers) in courts-martial, and more generally, with the immunities that soldiers have from civilian justice systems domestically in some cases.
I don't want to sound harsh (and I apologize if it seems that I'm picking on you), but in your post you say a large number of things that are quite simply factually wrong, and I think someone should correct them.
(1) A knighthood is not a title of nobility (although it is a title of honour).
As for "esquire", that is not a title at all. At one time it was a fairly clearly delimited social designation, but by the seventeenth century it had become extremely vague in application (essentially "gentleman-plus"), and by the late eighteenth it was primarily used as a style rather than a social designation. (Albeit a style with marked class connotations: you would usually address a letter to a banker to "John Doe, Esq.", but a letter to a tradesman would go to "Mr John Doe" -- unless you owed him money.)
This is still the use in Britain to this day, although it now connotes archaism rather more than snobbism. At some point in the mid-20th century Americans acquired the absurd idea that all and only attorneys-at-law should be addressed as "Esq."
(2) As for "jury of one's peers", you are confusing three things.
First, there is the explicit Constitutional provision that criminal trials shall be by jury. This explicitly does not apply to courts-martial.
Second, there is the implicit Constitutional norm that a trial jury should be representative of the entire (political) community -- although the extent to which this has been applied has been different at different times in American history. (See Akhil Amar's work for more on the connections among jury, militia, and electorate.)
Third, the privilege (which lasted until the mid-twentieth century) of British peers to be tried by the House of Lords. This might be called a "judgment of their peers", but not a jury: when the House of Lords tried a peer, all those present heard and debated on the evidence and law, and reached decision by majority. (The Lord Chancellor presided, as he has always done in the House, as the organizer of debate, not as someone with a special power to issue binding rulings.) (When the House of Lords was out of session, the Lord High Steward would summon peers -- originally, peers of his choice -- and then would stand to them in a judge/jury relationship, making rulings on law, but that was an exception.) Moreover, this privilege applied only in serious civilian criminal cases. In civil litigation, peers were tried by a jury of commoners just like anyone else. (Some sources state that at one time peers could demand that two of the jurors be knights, but if I remember correctly, historians now think that this was apocryphal.) And a peer of the realm in the British Army or Navy could be court-martialed by a tribunal of commoners.
(Technically, the members of a court martial simply are not a "jury" in the sense of common law or the Sixth Amendment, but it's usual to term them jurors.)
(3) Nowhere, at all, ever, in the United States are soldiers ever "immune from civilian justice systems". A soldier can be sued and tried for crimes in civilian courts. Many offences against state or federal law will also be crimes under the UCMJ for which a soldier can be court-martialed, so if a soldier off-base robs someone, he may wind up being tried in a court-martial instead of a civilian court, but that has to do with convenience, not immunity.
(In fact, a soldier can even be tried twice for the same offence--in a court-martial and in a state court--just as a civilian can be tried twice, once in federal civilian court and once in state civilian court, for the same offence.)
For official actions performed in good faith, soldiers have limited criminal and civil immunity, as do most government officials. But this in no way turns on the fact of their being soldiers. (Additionally, under a doctrine announced in Feres v. United States, one soldier cannot sue another in a civil case for damages related to official duty. But that is an intra-military immunity.)
Making an oath of allegiance to a foreign sovereign is not itself grounds for revocation of citizenship, unless it's done with the specific intent of renouncing citizenship. If the oath includes words such as "I renounce all previous sovereigns", it might be strong evidence of such an intent, but it is does not itself effect a loss of citizenship.
There are, I believe, still some statutes which say that naturalization in a foreign state, service in a foreign army, or the like, constitute grounds for loss of citizenship. They are unconstitutional and unenforced. (In any case, a ceremony with an oath of loyalty that does not purport to alter the nationality of the oath-taker would not even fall under those statutes.)
(5) You writeYou are thinking of feudal obligations such as homage.
But such services had to do not with titles, but with feudal tenure.
Originally the word "knight" primarily denoted a status associated with a particular feudal tenure, so one could hold a feif (a piece of land) by knight's service (which obligated one to fight for one's feudal lord under certain conditions, etc., etc.) but this is entirely different from being a "knight" in the sense of being a member of modern state order (almost all of which are post-feudal in origin).
In any case, all the special service-related tenures for real property were abolished in the seventeenth century, having long been ignored. (They might still have a nominal, although unenforceable, existence in Scotland, although I'm not sure.
But in any case there is no "cottage industry within the British equivalent of the Library of Congress cataloging all of the personal obligations that various people with titles owe".
Some peers with hereditary titles still possess the original estate that was granted with the title, and know any peculiarities of service associated with the grant ("hold two cups at the coronation", that sort of thing), but those have not been legal obligations (not even legally unenforceable ones) for centuries, and in any case, they were bound to the estate, not the title. For centuries, grants of hereditary titles have had no connection to the arcana of feudal land law.
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