united-states constitutional-law
Does congress exempting themselves violate Article 1 Section 9(8) of the Constitution?
<p>Article 1 section 9 part 8 says:</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>I would argue, logically, that when congress exempts itself from laws and taxes that all other citizens and legal residents of the US are required to comply with, based solely on their position of authority in the government this is a defacto title of nobility.</p>

<p>The problem that the founders sought to counter with the prohibition on granting titles of nobility was not the honorific, but rather the special rights and benefits that would be conferred to those people that set them apart from, and make them above the laws that every one else is required to follow.</p>

<p>Can a valid arguement be made in court that is in fact a violation of the Constitutional ban on awarding titles of nobility?  Has this ever been tried before?</p>

<p>Art. 1 Sec. 9(8) says two different things. The first says that "No Title of Nobility shall be granted by the United States". That means that the US cannot grant a title (hereditary or otherwise) like "Duke of Detroit", "Prince of Princeton". It does not prohibit the practice of speaking of POTUS as "His Highness, the President of the United States", likewise "His Elective Majesty" or "His Excellency", but early discussions in the Senate put paid to even calling a president this, and instead he is just called "Mr. President" (just as judges are called "your honor"). An appellation such as "Chief Justice" is not a title of nobility, it is a job description. We don't have titles of nobility granted by the government. There is a constitutional amendment, the <a href="https://en.wikipedia.org/wiki/Titles_of_Nobility_Amendment" rel="noreferrer">Titles of Nobility Amendment</a>, which was considered but not ratified, which is stricter on the anti-nobility statce.</p>

<p>Then there is second thing, that prohibits officials from "accept[ing] of any present, emolument, office, or title, of any kind whatever, <em>from any king, prince, or foreign state</em>", without Congressional approval. Accordingly, the president, sec'y of state or a congressman cannot accept a gift, such as a car, from a foreign power, unless it is approved by Congress. Every congressional "exception" was approved by Congress; moreover, such benefits are not from a foreign power. The Speech or Debate Clause Art. I, Sec.6(1) in fact gives congressmen a privilege (immunity from arrest) which ordinary citizens do not have. So there is no connection between titles of nobility and free bean soup or whatever legal exemptions Congress may give itself.</p>

<blockquote>
  <p>I would argue, logically, that when congress exempts itself from laws
  and taxes that all other citizens and legal residents of the US are
  required to comply with, based solely on their position of authority
  in the government this is a defacto title of nobility. . . . </p>
  
  <p>Can a valid arguement be made in court that is in fact a violation of
  the Constitutional ban on awarding titles of nobility? Has this ever
  been tried before?</p>
</blockquote>

<p>No. This is not a valid argument. It would be considered frivolous.</p>

<p>Congress is not a person, and titles of nobility inherently and by definition apply to individuals. The privileges are also not hereditary, which the case law has seen as the defining feature of a title of nobility.</p>

<p>The notion that Congress cannot grant people legal privileges by virtue of a non-hereditary government position is absurd. Almost every government position from notary to judge to attorney-general and President confers legal privileges and rights when acting in an official capacity, and no one has ever claimed that these rights, limited to the duration for which one holds the office and as acting in an official capacity while doing so, amounts to a title of nobility. This idea is too absurd for anyone to have even proposed it.</p>

<p>No precedent has ever held that any act of anyone in the United States government or state government has violated the title of nobility clause.</p>

<p>Legal authority establishing that a title of nobility for constitutional purposes is a heredity grant carrying some legal privilege can be found in a <a href="https://law.stackexchange.com/questions/8714/what-exactly-is-a-title-of-nobility-under-the-us-constitution">previous Law.SE post</a> discussing what constitutes a title of nobility. Cutting and pasting from my prior answer to that question:</p>

<p>Black's Law Dictionary (5th ed. 1979) defines "Nobility" as follows:</p>

<blockquote>
  <p>In English law, a division of the people, comprehending dukes,
  marquises, earls, viscounts, and barons. These had anciently duties
  annexed to their respective honors. They are created either by writ,
  i.e. by royal summons to attend the house of peers, or by letters
  patent, i.e. by royal grant of any dignity and degree of peerage; and
  they enjoy many privileges, exclusive of their senatorial capacity.</p>
</blockquote>

<p>Letters patent still exist in both English and American law and primarily refer to document in the nature of a deed that transfers real estate from the sovereign to a private individual.</p>

<p>The connection is that most (although not all) titles on nobility were personal rights incident to being the feudal owner of a parcel of land (the right to say who inherits land from an individual was originally entirely governed by law without the discretion of the owner to give it to someone else, but this was reformed gradually in the "early modern" period of English history and was fully reformed by the Victorian era except as to the titles of nobility historically associated with the land).</p>

<p><strong>Titles of Nobility are hereditary.</strong></p>

<p>An appointment to a position for life (the moral equivalent of a "Life Lord" in England or a Senator in the Canadian Parliament, or a federal judgeship in the U.S.) is not prohibited.</p>

<p>But, no rights, other than citizenship or a right to an inheritance (in the absence of a will providing otherwise), that is hereditary may be granted.</p>

<blockquote>
  <p>The Framers of our Constitution lived at a time when the Old World
  still tolerated in the shadow of ancient feudal traditions. As
  products of the Age of Enlightenment, they set out to establish a
  society that recognized no distinctions among white men on account of
  their birth. See U.S.Const., Art. I, § 9, cl. 8 ("No Title of Nobility
  shall be granted by the United States").</p>
</blockquote>

<p><em>Fullilove v. Klutznick</em>, 100 S.Ct. 2758, 448 U.S. 448, 65 L.Ed.2d 902 (1980) dissenting opinion at Footnote 13 (overruled on other grounds). This case discusses citizenship issues.</p>

<p>And similarly:</p>

<blockquote>
  <p>Such pure discrimination is most certainly not a "legitimate purpose"
  for our Federal Government, which should be especially sensitive to
  discrimination on grounds of birth.</p>
  
  <p>Distinctions between citizens solely because of their ancestry are, by
  their very nature, odious to a free people whose institutions are
  founded upon the doctrine of equality. Hirabayashi v. United States,
  320 U.S. 81, 100. From its inception, the Federal Government has been
  directed to treat all its citizens as having been "created equal" in
  the eyes of the law. The Declaration of Independence states:</p>
  
  <p>"We hold these truths to be self-evident, that all men are created
  equal, that they are endowed by their Creator with certain unalienable
  Rights, that among these are Life, Liberty and the pursuit of
  Happiness."</p>
  
  <p>And the rationale behind the prohibition against the grant of any
  title of nobility by the United States, see U.S.Const., Art. I, § 9,
  cl. 8, equally would prohibit the United States from attaching any
  badge of ignobility to a citizen at birth.</p>
</blockquote>

<p><em>Mathews v. Lucas</em>, 96 S.Ct. 2755, 427 U.S. 495, 49 L.Ed.2d 651 (1976) dissenting opinion at footnote 3. This case discusses illegitimacy discrimination.</p>

<p>Some state constitutions use the phrase "no title of nobility or hereditary emolument, shall be passed," which emphasizes the hereditary component.</p>

<p><strong>Titles of Nobility confer legal privileges.</strong></p>

<p>Titles of Nobility in U.K. law at the time the U.S. Constitution was adopted in 1789, among other things, conferred immunity to a trial by an ordinary jury and instead gave rise to a jury of one's peers (i.e. other nobles of the same rank or higher) if one was charged with a crime. This was enshrined in the Magna Carta of 1215 CE.</p>

<p>This logic is still retained on a residual basis in U.S. courts-martial where a court martial proceeding of an officer can only be tried by other officers (who must be of equal or greater rank, if possible). 10 U.S.C. § 825.</p>

<p>The historical link between the two concepts is that the British aristocracy derives mostly from grants of feudal rights to members of the conquering Norman army in 1066 CE proportionate to military rank and in accord with military hierarchy with modest modifications over time.</p>

<p>The goal of the prohibition of Titles of Nobility was to prohibit titles of nobility that gave someone an unequal status in law in this fashion. So, a mere honorary recognition would be distinguished from a title that gave someone rank and privilege (on a hereditary basis).</p>

<p>A dissent in the famous Dred Scott case, to which the birthright citizenship clause of the 14th Amendment enacted less than a decade later was a response, illustrates the concern:</p>

<blockquote>
  <p>It is, in effect, whether the Constitution has empowered Congress to
  create privileged classes within the States, who alone can be entitled
  to the franchises and powers of citizenship of the United States. If
  it be admitted that the Constitution has enabled Congress to declare
  what free persons, born within the several States, shall be citizens
  of the United States, it must at the same time be admitted that it is
  an unlimited power. If this subject is within the control of Congress,
  it must depend wholly on its discretion. For, certainly, no limits of
  that discretion can be found in the Constitution, which is wholly
  silent concerning it; and the necessary consequence is, that the
  Federal Government may select classes of persons within the several
  States who alone can be entitled to the political privileges of
  citizenship of the United States. If this power exists, what persons
  born within the States may be President or Vice President</p>
  
  <p>60 U.S. 578</p>
  
  <p>of the United States, or members of either House of Congress, or hold
  any office or enjoy any privilege whereof citizenship of the United
  States is a necessary qualification, must depend solely on the will of
  Congress. By virtue of it, though Congress can grant no title of
  nobility, they may create an oligarchy, in whose hands would be
  concentrated the entire power of the Federal Government.</p>
</blockquote>

<p><em>Dred Scott v. Sandford</em>, 15 L.Ed. 691, 60 U.S. 393, 577-578 (1857) dissenting opinion (majority opinion subsequently overruled and superseded by constitutional amendment). In this infamous case:</p>

<blockquote>
  <p>The United States Supreme Court decided 7–2 against Scott, finding
  that neither he nor any other person of African ancestry could claim
  citizenship in the United States, and therefore Scott could not bring
  suit in federal court under diversity of citizenship rules. Moreover,
  Scott's temporary residence outside Missouri did not bring about his
  emancipation under the Missouri Compromise, which the court ruled
  unconstitutional as it would "improperly deprive Scott's owner of his
  legal property."</p>
</blockquote>

<p><strong>The primary concern behind the clause was that the United States not become a monarchy.</strong></p>

<p>You state:</p>

<blockquote>
  <p>The problem that the founders sought to counter with the prohibition
  on granting titles of nobility was not the honorific, but rather the
  special rights and benefits that would be conferred to those people
  that set them apart from, and make them above the laws that every one
  else is required to follow.</p>
</blockquote>

<p>But, the legislative history from the constitutional convention does not bear this out.</p>

<p>In the debates of the Federal Convention Benjamin Franklin discusses his "apprehension" that the government of the States may "end in a Monarchy" and describes this possibility as "Catastrophe." See JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787 REPORTED BY JAMES MADISON 32 (Adrienne Koch ed., 1966) (1927) at 53. John Dickenson, although noting the merits of limited monarchy, stated: "A limited Monarchy however was out of the question. The spirit of the times-the state of our affairs, forbade the experiment, if it were desireable." Id. at 56-57. Edmund Randolph noted that the "permanent temper of the people was adverse to the very semblance of Monarchy," id. at 58, and argued against a single executive, regarding it "as the foetus of monarchy." Id. at 46.</p>

<p>Indeed, sovereign immunity was part of the original plan of the constitution as Justice Anthony Kennedy explained in <em>Alden v. Maine</em>, 527 U.S. 706 (1999), in the course of explaining the 11th Amendment which codified a small subset of sovereign immunities but is not the source of those immunities:</p>

<blockquote>
  <p>[S]overeign immunity derives not from the Eleventh Amendment but from
  the structure of the original Constitution itself. ... Nor can we
  conclude that the specific Article I powers delegated to Congress
  necessarily include, by virtue of the Necessary and Proper Clause or
  otherwise, the incidental authority to subject the States to private
  suits as a means of achieving objectives otherwise within the scope of
  the enumerated powers.</p>
</blockquote>

<p>Thus, rather than being unconstitutional, the decision of Congress to exempt itself from generally applicable laws is actually part of the design of the original constitution.</p>
