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Does Senator Kennedy Need Congressional Permission for His Knighthood?

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:

  1. 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.

  2. 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.

  3. 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.

A. Nonymous (mail):
It is honorary, therefore there is no problem. Reagan, Bush I, and others have be so "knighted" in an honorary fashion and there has been no problem.
3.4.2009 1:11pm
Alice Smyth (mail):
I'll say this, just to get it out of the way. The senate is an office of profit, but not an office of trust.

And its quaint of you to imagine the rules apply to important people.
3.4.2009 1:13pm
qwerty (mail):
Honorary as opposed to what? I don't think vast tracts of land would come with the title if it weren't "honorary."
3.4.2009 1:15pm
DG:
Honorary knighthoods are a regular occurrence for US citizens. Its a civil decoration, not an office or title. For this reason, honorary knights are not allowed to use the title "sir".
3.4.2009 1:19pm
Ak Mike (mail):
Not entirely on topic, but also not entirely off topic: Why is it that federal judges can only be removed by impeachment? There's nothing about that in Article III. Article I just says that all "civil officers" as well as the President and Vice President can be removed by the impeachment process for "treason, bribery, or other high crimes and misdemeanors." (And this would tend to imply the President and Vice President are not civil officers).

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?
3.4.2009 1:19pm
Dave N (mail):
Honorary as opposed to actually being given the title--though Gordon Brown himself seemed to blur the distinction by refering to the the Massachusetts Senator as "Sir Edward Kennedy."
3.4.2009 1:20pm
Eugene Volokh (www):
A. Nonymous: An honorary title might not be an "Emolument" or an "Office," but is sure seems like a "Title" to me. So if a sitting President or another executive or judicial official got it, that would require Congressional approval, I think. But Reagan got his honorary knighthood after the end of his term, as did George H.W. Bush (I don't have a URL for that, but I checked it on Nexis).
3.4.2009 1:21pm
Angus:
Honorary as opposed to what? I don't think vast tracts of land would come with the title if it weren't "honorary."
I presume honorary in the same way that someone getting an "honorary degree" from a law or medical school does not actually make them a lawyer or a physician.
3.4.2009 1:22pm
DanG:
The phrase "of any kind whatever" seems absolute enough to cover honorary titles.
3.4.2009 1:23pm
krs:
I can only hope that this is an exceedingly polite request by the Queen for Lord Chappaquiddick to retire at once.
3.4.2009 1:26pm
A. Nonymous (mail):
"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, 168 or it is of "minimal value" and its acceptance consented to by Congress by statute if it is received as a mark of courtesy."

See: THE "MISSING THIRTEENTH AMENDMENT": CONSTITUTIONAL NONSENSE AND TITLES OF NOBILITY 8 S. Cal. Interdis. L.J. 577
3.4.2009 1:32pm
Angus:
A. Nonymous: An honorary title might not be an "Emolument" or an "Office," but is sure seems like a "Title" to me.
Wouldn't this be a place for originialism? What did the authors of that section consider to be a title, and why did they oppose it? As far as I can tell, at the time of the Constitution all such grants were "official" rather than "honorary," and acceptance of them created formal and legal obligations of loyalty to the foreign King or Queen. In an honorary knighthood, no such obligations are created.

In other news, denying a dying man an honorary title would be petty and vindictive.
3.4.2009 1:33pm
RogerCoke (mail):
First things first - Kennedy will NOT become "Sir Edward Kennedy". Only a British, Commonwealth or Irish citizen can use that title. Or will Ted suddenly assume Irish citizenship?

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.
3.4.2009 1:35pm
A. Nonymous (mail):
Eugene: It is not a title, it is an honorary title.
qwerty: No one is getting any "land".
3.4.2009 1:37pm
Joseph Slater (mail):
I'm no expert on the subject (though I'm not sure whether anyone is)

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. . . .
3.4.2009 1:39pm
Joseph Slater (mail):
be better
3.4.2009 1:40pm
Richard Aubrey (mail):
I don't care how much I achieved in support of HMG. If Teddy is a knight, I wouldn't take the offer.
3.4.2009 1:46pm
Dave N (mail):
Joseph Slater,

Either one won't take so much time as to prevent you from commenting here.
3.4.2009 1:46pm
Skyler (mail) (www):
Well, the fear of monarchy was very real back then and for good reason. We no longer fear monarchies per se, but the intent was clear. They did not want people in our government to be beholden to foreign governments.

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.
3.4.2009 1:57pm
Skyler (mail) (www):
As for the wisdom of Kennedy being given this title by the Brits, Mary Joe Kopechne had no comment.
3.4.2009 1:59pm
qwerty (mail):
these knighthoods aren't what they used to be. didn't bono recently get one? and if you can't call yourself sir, what's the point?
3.4.2009 2:01pm
Eugene Volokh (www):
A. Nonymous: Titles -- as opposed to presents, offices, rights, duties, and so on -- are simply expressions of something, and often expressions of honor. So an honorary title is a title, albeit one with nothing tangible attached to it (which is entirely consistent with its being just a title).

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.
3.4.2009 2:01pm
Houston Lawyer:
If the Queen wants to grant him a Knighthood, who has standing to challenge that grant. If I were a judge and someone brought that suit, I would beat the plaintiff severely with a gavel.

The press has been treating the Kennedys like royalty since 1960 or so, and they didn't need Congressional approval for that.
3.4.2009 2:02pm
martinned (mail) (www):

I personally share the revulsion of titles and nobility that the founders had.

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.
3.4.2009 2:02pm
martinned (mail) (www):
From wikipedia:


Only the two highest ranks entail admission into knighthood, an honour allowing the recipient to use the title "Sir" (male) or "Dame" (female) before their first name. Honorary knighthoods, given to individuals who are not nationals of a realm where Queen Elizabeth II is Head of State, permit usage of the honour as a post-nominal but not as a title before their name. These recipients are classified as honorary members of the Order they receive, and do not contribute to the numbers restricted to that Order as full members do.


and


Current Knights and Dames Grand Cross:
(...)
Honorary
Faisal Alhegelan, GBE (1987)
Taher al-Masri, GBE (1988)
George J. Mitchell, GBE (1999)
Edward M. Kennedy, KBE (2008)

(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.
3.4.2009 2:07pm
martinned (mail) (www):
Another wikipedia page:


Honorary awards
Citizens of countries which do not have the Queen as their head of state sometimes have honours conferred upon them, in which case the awards are "honorary". In the case of knighthoods, the holders are entitled to place initials behind their name but not style themselves "Sir".[3] Examples of foreigners with honorary knighthoods are Billy Graham, Riley Bechtel, Bill Gates, Bob Geldof, Bono, Rudolph Giuliani, and Ted Kennedy, while Arsène Wenger and Gérard Houllier are honorary OBEs. Honorary knighthoods arise from Orders of Chivalry rather than as Knights Bachelor as the latter confers no postnominal letters.

Recipients of honorary awards who later become subjects of Her Majesty may apply to convert their awards to substantive ones. Examples of this are Marjorie Scardino, American CEO of Pearson PLC, and Yehudi Menuhin, the American-born violinist and conductor. They were granted an honorary damehood and knighthood respectively while still American citizens, and converted them to substantive awards after they assumed British citizenship, becoming Dame Marjorie and Sir Yehudi. Menuhin later accepted a life peerage with the title Lord Menuhin.

Tony O'Reilly, who holds both British and Irish nationality [4], uses the style "Sir", but has also gained approval from the Irish Government to accept the award as is necessary under the Irish Constitution[5]. Elisabeth Schwarzkopf, the German soprano, became entitled to be known as "Dame Elisabeth" when she took British nationality. Irish-born Sir Terry Wogan was initially awarded an honorary knighthood, but by the time he collected the accolade from the Queen in December 2005, he had obtained dual nationality [4] and the award was upgraded to a substantive knighthood.

Bob Geldof is often erroneously referred to in the tabloid press as "Sir Bob", though he does not have British nationality and does not appear in the British Knightage. His late wife, Paula Yates, regularly styled herself "Lady Geldof", though this may have been a ruse to enjoy preferential treatment when booking restaurants.

There is no law in the UK preventing foreigners from holding a peerage, though only Commonwealth and Irish citizens may sit in the House of Lords. This has yet to be tested under the new arrangements. However, some other countries such as the United States have laws restricting the acceptances of awards by foreign powers, and all such honors must be approved by Congress; in Canada, where the Canadian House of Commons has opposed the granting of titular honours with its Nickle Resolution, then Prime Minister Jean Chrétien advised the Queen not to grant Conrad Black a titular honour while he remained a Canadian citizen[6].
3.4.2009 2:11pm
Jim Ison (mail):
You might Google... I don't care to... "Lord" Conrad Black's name and see what a kerfuffle his knighthood caused in Canada (before his trial and subsequent imprisonment on unrelated business).

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.
3.4.2009 2:17pm
pete (mail) (www):

I see no basis for claiming they had anything as strong as "revulsion" for the concept.


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.
3.4.2009 2:17pm
Jim Ison (mail):
Oops! A much more cogent note arrived just before mine...
3.4.2009 2:19pm
qwerty (mail):
Martinned: this is useful in understanding the differences btw. an "honorary" and "substantive" title, as such terms appear to be understood in Britain. But it doesn't address the question whether an "honorary" title is still a title for purposes of the US Constitution.
3.4.2009 2:21pm
martinned (mail) (www):
BTW, the elder Bush also received his knighthood after the end of his term, in 1993. Here's the full wiki-list of honourary knights and dames.
3.4.2009 2:23pm
martinned (mail) (www):
@Qwerty: There seemed to be some confusion about the use of the term "honourary" in this context. It is certainly an honour, and even an honours, to receive a knighthood, but the term "honourary knighthood" refers to a specific kind of knighthood, with slightly different rules attached. I just wanted to make that clear.

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.
3.4.2009 2:28pm
Ira Brad Matetsky:
Even if the senator's acceptance of the honorary knighthood were deemed to fall within the scope of the Foreign Emoluments Clause provision, it is not clear what the consequence would be, as the provision is not self-executing. (Matters would be otherwise if the proposed Thirteenth Amendment of 1810 had been ratified.)

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.
3.4.2009 2:32pm
Soronel Haetir (mail):
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.
3.4.2009 2:38pm
martinned (mail) (www):
@Ira Brad Matetsky: Thanks for the pointer, although the section is 5 USC 7342. Here's the definition of a decoration in that act: "“decoration” means an order, device, medal, badge, insignia, emblem, or award tendered by, or received from, a foreign government; " I don't see how a KBE wouldn't be a decoration under this definition. It even comes with a nice medal &ribbon. Based on this Act, it looks to me like Kennedy would need permission not from the whole Congress, but only from the Senate Select Committee on Ethics.
3.4.2009 2:39pm
qwerty (mail):
Aren't gifts and decorations objects rather than concepts? Ted may get to keep whatever trinket his title came with, but what about the title itself?
3.4.2009 2:40pm
Lucas:
martinned: Perhaps it demonstrates merely a distaste for titles of nobility rather than a "revulsion" for them, but the Constitution prohibits both states (Art. I, Sec. 10) and the federal government (Art. I, Sec. 9) from granting such titles, in addition to barring the acceptance of foreign titles (also Sec. 9). If the only fear were foreign influence, only the last of these provisions would be necessary; the ban on domestic titles of nobility suggests a more fundamental aversion to the (anti-republican) practice.
3.4.2009 2:41pm
martinned (mail) (www):
@Lucas: True. [Bearing in mind that a knighthood is not a title of nobility, except maybe for these two hereditary knighthoods, which are freaks of history.]
3.4.2009 2:50pm
Jam:
If the "honorary" modifier makes the grant of title worthless (of no value) then why grant it, or why accept it?

If the British want to call Edward Sir that is their problem.

"Kennedy would need permission ... from the ... Senate Select Committee on Ethics" Hmmmmm
3.4.2009 2:53pm
Randy R. (mail):
I would think that as a loyal Irishman (or at least, an Irish-American), he would bend no knee before an English monarch.

Unless the age old animousity have been put aside in recent times. I don't know, I'm not Irish.
3.4.2009 2:54pm
martinned (mail) (www):

If the "honorary" modifier makes the grant of title worthless (of no value) then why grant it, or why accept it?

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.


If the British want to call Edward Sir that is their problem.

They don't, that's one of the consequences of this knighthood being honourary. He just gets to put KBE behind his name.
3.4.2009 2:56pm
Happyshooter:
Is my memory correct that a member of congress accepted the queenship of an african tribe while sitting in congress? Maybe the mid-90s?

I tried a google but only got a bunch of stuff about riverboat gambling.
3.4.2009 3:02pm
alkali (mail):
Matetsky + martinned have it right.

Alan Greenspan commented on this issue when he received his honorary knighthood (he was Fed chair at the time).
3.4.2009 3:07pm
Virginian:
Arise, Sir Loin of Beef.

Arise, Earl of Cloves.

Arise, Duke of Brittingham.

Arise, Baron of Munchausen.

Arise, Essence of Myrrh,

... Milk of Magnesia,

... Quarter of Ten.
3.4.2009 3:15pm
Jam:
Fed. Chairman is not an office of these uS. Was Greenspan paycheck drawn from the uS Treasury?
3.4.2009 3:29pm
MarkField (mail):

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.


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.
3.4.2009 3:31pm
alkali (mail):
Fed. Chairman is not an office of these US.

Per Wikipedia, and law.cornell.edu:
The Chairman is the "active executive officer" (see 12 U.S.C. § 242) of the Board of Governors of the Federal Reserve, which is an independent agency of the federal government created by statute (see 12 U.S.C. § 241), as part of the Federal Reserve System.
3.4.2009 3:41pm
Jam:
I read the text of your links and, call me dense, but I still do not see where the FedRes is Federal government. Can you highlight relevant text other than the FedRes is a monster, a creature, of the Federal government?

I repeat, is the FedRes chairman's paycheck drawn from the uS Treasury?
3.4.2009 3:49pm
Alix Cavanaugh (mail) (www):
I think the plain language of the statute covers it. 5 USC 7342 (a)(4) states that "'decoration' means an order, device, medal, badge, insignia, emblem, or award tendered by, or received from, a foreign government" (emphasis added).

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.
3.4.2009 3:57pm
Ariel:
Soronel Haetir,

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.
3.4.2009 4:06pm
Alix Cavanaugh (mail) (www):
In fact, it occurs to me that there's no legal reason that the United States couldn't give out knighthoods if it wanted.

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.)
3.4.2009 4:10pm
PeterWimsey (mail):
"Since World War II, more than sixty American citizens have been granted honorary knighthoods by the United Kingdom alone.


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.
3.4.2009 4:11pm
huh342?:
@jam: Yes, the federal reserve chairman's salary is set by congress and drawn from the treasury:

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
3.4.2009 4:16pm
D.R.M.:
Eugene Volokh —

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".
3.4.2009 4:17pm
Alix Cavanaugh (mail) (www):
By the way, for what it's worth, I do think that Eugene is right that a Member of Congress is not an "Officer of the United States". So an interesting question is whether the constitutionality of the restrictions in 5 USC 7342, as applied to Members of Congress, can be defended on some other ground.

(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.
3.4.2009 4:18pm
Alix Cavanaugh (mail) (www):
Peter Wimsey:

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.
3.4.2009 4:23pm
glangston (mail):
I would appoint Bill Clinton to investigate and parse this burning question of "to be, or not to be."
3.4.2009 4:35pm
Alix Cavanaugh (mail):
By the way, I would be very interested if anyone knows of actual authority on the question of whether there is a difference in English law between "honorary" and "non-honorary" knighthoods. (Although I doubt it's the sort of thing that ever gets litigated.)
3.4.2009 4:37pm
mls (www):
The Senate Ethics Manual states that the constitutional provision does apply to Members of Congress, and the Foreign Gifts and Decorations Act constitutes the means of getting congressional consent. I am not quite sure how one reconciles this conclusion with the fact that Members are prohibited from holding "any office under the United States" by Article I, Section 6, clause 2.
3.4.2009 4:38pm
Stephen C. Carlson (www):
Italy also grants Americans membership in its orders of knighthood.
3.4.2009 4:38pm
Jam:
Sigh.

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)
3.4.2009 4:41pm
Dave N (mail):
Italy also grants Americans membership in its orders of knighthood.
Which is particularly cool since Italy is no longer a monarchy.
3.4.2009 4:52pm
ROBERT RUDZKI (mail):
Perhaps Mary Jo Kopechne can be made "Lady of the Lake"...
3.4.2009 4:54pm
Bill Poser (mail) (www):

Honorary as opposed to what? I don't think vast tracts of land would come with the title if it weren't "honorary."


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.
3.4.2009 5:02pm
DanG:
The placement of the provision in Article I, which deals with Congress, weighs in favor of a conclusion that the prohibition on foreign titles applies to members of Congress.
3.4.2009 5:06pm
Soronel Haetir (mail):
I find the ban on state titles even more interesting in light of practices such as Kentucky awarding more-or-less honorary offices of Colonel. Other states too, I'm not sure?
3.4.2009 5:09pm
Bill Poser (mail) (www):

The placement of the provision in Article I, which deals with Congress, weighs in favor of a conclusion that the prohibition on foreign titles applies to members of Congress.


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.
3.4.2009 5:16pm
Prawo Jazdy:
Rudzki wins the thread. What a bloody sick world.
3.4.2009 5:28pm
ArthurKirkland:
I hope Senator Kennedy turns it down, in line with a (perhaps apocryphal) story concerning Keith Richards' reaction when told a title had been offered to Mick Jagger. 'There's a royal miscalculation,' Keith is said to have responded dismissively, even before the other person had finished speaking. 'As if a Rolling Stone, one-time enemies of the empire and tax exiles, would have anything to do with such a paltry honor from the Establishment [expletives deleted].'

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.
3.4.2009 5:56pm
Eugene Volokh (www):
D.R.M.: Could you point me to the incidents that form the decades of custom that honorary knighthoods aren't considered titles for constitutional purposes? I'm open to the argument, but I just don't know of such a custom.
3.4.2009 6:43pm
BladeDoc (mail):

Rudzki wins the thread. What a bloody sick world.


+800 billion
3.4.2009 7:00pm
Stephen C. Carlson (www):
For Italy: Italian Orders of Merit (Wikipedia)
3.4.2009 9:02pm
mls (www):
I vote for Rudzki too.
3.4.2009 10:00pm
GatoRat:
I mistrust anyone who takes honorary titles and degrees seriously.
3.4.2009 10:07pm
Sagar:
While Rudzki was funny, Alice Smyth (2nd comment) said all that needed to be.

(did you guys also wonder if Hillary could or couldn't be the SecState since she was a senator who voted to increase pay ...)
3.4.2009 10:30pm
ll (mail):

If the Queen wants to grant him a Knighthood, who has standing to challenge that grant.


Same person who has standing to challenge Pres. Obama's citizenship claim.
3.4.2009 11:48pm
iolanthe (mail):
"Well, some knighthoods come with a seat in the House of Lords. Those are surely not honorary."

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.
3.4.2009 11:53pm
Perseus (mail):
I think having QEII speaking to a joint session of congress had them [the Founders] turning in their graves.

That depends on which Founder you are talking about. Jefferson: Yes. Hamilton: No. His Rotundity, John Adams: Not.
3.4.2009 11:54pm
Visitor Again:
Knighthoods, honorary or not, are not conferred on the deceased, and I suppose the Prime Minister believes Kennedy may well die while still in office. And it is the Prime Minister who decides who gets knighthoods, not the Queen. The Queen merely confers them at the direction of the Prime Minister. The Queen's disapproval of a particular proposed recipient might get some weight, however. And the Queen might submit names to the Prime Minister, who, barring political objections, will approve them.
3.5.2009 12:26am
Bill Poser (mail) (www):
According to Wikipedia,
real knights are entitled to style themselves "Sir" but honorary knights are not. So there is a difference, albeit rather subtle.
3.5.2009 2:44am
epeeist:
Some scattered thoughts (interesting post!)...

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...).
3.5.2009 4:08am
iolanthe (mail):
"I share a distate for Americans using titles ..."

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.
3.5.2009 5:55am
Bob from Ohio (mail):

The senate is an office of profit, but not an office of trust.


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.
3.5.2009 6:03am
SamW:
So what if Adams was trying to figure out a way to refer to the President, which had never been done before. Almost no one worked harder to liberate America, certainly not Jefferson.
3.5.2009 10:04am
DennisN (mail):
@ Bill Poser:


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.


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


it seems that we must read "title" as meaning "noble title",


makes a lot of snse in this context.
3.5.2009 10:36am
DanG:

The placement of the provision in Article I, which deals with Congress, weighs in favor of a conclusion that the prohibition on foreign titles applies to members of Congress.



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.


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.
3.5.2009 11:41am
elscorcho (mail):

I presume honorary in the same way that someone getting an "honorary degree" from a law or medical school does not actually make them a lawyer or a physician.


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?
3.5.2009 11:44am
wfjag:
There's still the matter of protocol -- what should be worn at the event. As both Sen. Ted and his father in law, Judge Reggie, have convictions, I believe the proper attire is orange jump-suits.
3.5.2009 11:47am
pluribus:
pete:

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.

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."
3.5.2009 12:03pm
Jam:
Are lawyers are officers of the court, are they not?
3.5.2009 12:04pm
elscorcho (mail):
I don't know why people debate constitutional questions anymore. Its not like you can apply logic and reason to its words. It only means what the SC says it means. For example:

* 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.
3.5.2009 12:04pm
Gary McGath (www):
Whether it's legal or not, it's just wrong in so many ways.
3.5.2009 12:21pm
pluribus:
elscorcho:

I don't know why people debate constitutional questions anymore.

I don't think anyone's twisting your arm.

Its not like you can apply logic and reason to its words.

Maybe not you, but other people can.

It only means what the SC says it means.

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.

Although I might like the outcome of some of the decisions made, I cannot honestly say they make any sense.

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.
3.5.2009 1:14pm
elscorcho (mail):
Pluribus,

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.



It only means what the SC says it means.


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.

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.
3.5.2009 2:06pm
pluribus:
Well, elschoro, you said you didn't "know why people debate constitutional questions anymore." I tried to explain why. I suppose there is always "a right side and a wrong side" to a constitutional question, even when reasonable minds don't have differing opinions, though it might be hard to determine which is side is which. That's part of the reason the debate still goes on. (BTW, if you aren't interested in debate on constitutional questions, why do you visit VC?)
3.5.2009 3:17pm
pluribus:
elscorcho:

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.
3.5.2009 3:43pm
elscorcho (mail):
Pluribus,

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.
3.5.2009 3:47pm
ohwilleke:
The legally important difference between an honorary knighthood and a real one mostly involved the nature of the ceremony by which it is conferred.

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.
3.5.2009 8:10pm
Alix Cavanaugh (mail) (www):
ohwilleke --

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.)
3.6.2009 2:25pm
Alix Cavanaugh (mail) (www):
(4) I do not believe that knights (whether British or foreign subjects, "real" or honorary) currently take an oath of allegiance as any part of their ceremony. I could be wrong about that, but in any case, under Afroyim v. Rusk, the only way a native-born American citizen can lose his citizenship is by deliberately giving it up.

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 write
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.
You 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.
3.6.2009 2:55pm
dearieme:
"Queen of England" is a post that was abolished in 1707, news that has not yet reached the New York Times, apparently.
3.7.2009 12:07am

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