Monday, March 9, 2009

Sir Teddy and "obscurity"

A bit of debate has ensued over whether a sitting senator, like Ted Kennedy, can accept a foreign honor such as knighthood. Writes Amie Parnes at Politico:

"Is Sir Ted's knighthood unconstitutional? The naysayers point to Article I Section 9 of the Constitution, which says “No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, 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 agree with most of the article, which makes the point that the key words are "consent of Congress" and even the most partisan Republican is unlikely to object to Senator Kennedy being knighted. Since the honor apparently no longer requires consummation by an exhibition of jousting, everybody should be just fine with this.

There is, however, one small objection I have with Parnes's piece. That's her reference to the section of the Constitution in question as "obscure."

In the first place, can any provision in the Constitution honestly be called "obscure"? It's only got seven articles and twenty-seven amendments. Akhil Amar notes that "It's full text, including amendments, runs less than eight thousand words, a half hour's read for the earnest citizen" (America's Constitution: A Biography, 2005, p. xi). My desktop copy of the document , the one published by the Cato Institute, fits in a shirt pocket and has all of the First, Second, and Third Amendments, plus the first sentence of the Fourth, on one page. I don't see a work this brief as capable of hiding an obscure provision in the manner that ponderous statute books can.

Furthermore, while the average man on the street might find certain parts of the Constitution low on the relevance scale, to us who are deeply immersed in the Constitution everything is significant. I cited above from Professor Amar's book. That volume isn't intended just to be read by a handful of scholars; he wrote it for an interested popular audience. Amar spends five pages on some problems that have resulted from the Eleventh Amendment, and I bet there isn't one person in a thousand who could even hint at what's in that provision. But again, if you are serious about the Constitution, neither that amendment nor anything else is "obscure."

But outside of these general reasons, there is a more specific argument that the clause relating to Kennedy's situation is not obscure. First, it's found not just one place in the Constitution, but two. And second, an 1810 proposed amendment that would have put this concern in yet a third place in the Constitution was essentially the Equal Rights Amendment of its time--a provision that easily passed Congress, was sent to the states, and fell short of ratification by one state.

Addressing the first point, while the Politico article cites Article 1, Section 9, which applies to the federal government, Article 1, Section 10 makes the same point regarding state governments. "No state shall..." it asserts "grant any Title of Nobility." So serious were the framers of the dangers of bills of attainder, ex post facto laws, and somebody being made a duke or an earl that they made it crystal clear that neither the federal government nor any state could do this.

Incidentally, this relates to the point that in 1833 John Marshall made in Barron v. Baltimore, holding that the Takings Clause of the Fifth Amendment--and by extension, the entire Bill of Rights--did not apply to the states. The pre-Civil War Constitution said that no titles of nobility could be granted by Congress, or by the states, but it only says that Congress can't infringe on the freedom of speech, so how could you argue that the Constitution prohibits a state from regulating speech? As a result of the Fourteenth Amendment and subsequent decisions, most of the Bill of Rights now does apply to the states, but for where this country was in 1833 Marshall's logic wasn't a stretch.

Now the second point, the early nineteenth century attempt to amend the Constitution to regulate honors or gifts from foreign sovereigns even more tightly. The proposed amendment said this:

"If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either
of them."

Imagine if that had been ratified. Under it, even if Ted Kennedy gave up his seat in the Senate and became a private citizen, if he accepted the knighthood without clearing it through Congress, he would actually lose his citizenship. This might just be the most draconian measure that ever came close to being a part of our Constitution, especially when you consider the "any present" language. Never mind touching his shoulder with a sword, if the Queen of England simply bought Teddy lunch he could forfeit American citizenship by accepting.

And it didn't miss out by much. David Currie points out that the vote in favor of this amendment was 26 to one in the Senate and 87 to three in the House, and that it was ratified by twelve of the seventeen states in existence in 1810 (The Constitution in Congress: The Jeffersonians, 2001, p. 334). A thirteenth state voting yea and there it would sit as our Thirteenth Amendment. (Which, of course, means the actual Thirteenth Amendment, banning slavery would have been the Fourteenth, the Fourteenth would be the Fifteenth, and so on down the line.

Currie also noted that one does not find much information from newspaper accounts, the Annals of Congress or any other source contemporary with the proposal that lets us know today exactly why so many people thought foreign gifts were such a menace that the threat of loss of citizenship had to be held over the heads of the masses. He cites another book that remarks of the speculations by historians that it could have been fears of Napoleon, or an attempt by the Federalists to embarrass President Madison, or a "powerful expression of nativist prejudice" (p. 333).

You know what's funny about this? One of the states that stood in the way of this harsh amendment coming to fruition was the same one that was the first to secede fifty years later. Said the South Carolina House of Representatives when inquired by Congress about their rejection of the proposal:

"(We) are not aware that any evil consequences have resulted from the existing provisions of the constitution, while on the other hand, (we) can but believe that the adoption of such an amendment would operate imperiously on innocent individuals, as well as the community at large". (Currie, p. 334, n. 103).

Well done, Palmetto State.

1 comment:

John Cowan said...

The term "office of trust or profit" refers specifically to the executive branch and does not include members of the legislature, notwithstanding Senators being paid from the public purse. Indeed, the first such act, the Act of Settlement 1701, specifically bars the holders of an "office or place of profit under the King" or a "pension from the Crown" from the House of Commons, making it clear that the former phrase refers to executive-branch appointments.

Additionally, Ted Kennedy is not a subject of the Queen, and as such not entitled to the honorific "Sir". Several presidents (Eisenhower, Reagan, Bush I) hold or have held such "honorary knighthoods".