Title of Nobility Clause - History

History

The Framers' intentions for this clause were twofold: to prevent a society of nobility from being established in the United States, and to protect the republican forms of government from being influenced by other governments. In Federalist No. 22, Alexander Hamilton stated, "One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption." Therefore, to counter this "foreign corruption" the delegates at the Constitutional Convention worded the clause in such a way as to act as a catch-all for any attempts by foreign governments to influence state or municipal policies through gifts or titles.

The Title of Nobility Clause is constitutionally unique in other respects. First, it is a "negative" clause — a restriction prohibiting the passage of legislation for a particular purpose. Such restrictions are unusual in that the Constitution has been historically interpreted to reflect specific (i.e., "positive") sources of power, relinquished by the States in their otherwise sovereign capacities. Moreover, it is a negative clause without a positive converse. A common example of this is how the Commerce Clause represents the positive converse to the restrictions imposed by the Dormant (or "Negative") Commerce Clause. However, neither an express nor implied positive grant of authority exists as a balance against the restrictions imposed by the Title of Nobility Clause. For this reason, the clause was cited by Anti-Federalists who supported the adoption of a Bill of Rights. Richard Henry Lee warned that such distinctions were inherently dangerous under accepted principles of statutory construction, which would inevitably "give many general undefined powers to congress" if left unchecked.

Why then by a negative clause, restrain congress from doing what it would have no power to do? This clause, then, must have no meaning, or imply, that were it omitted, congress would have the power in question, either upon the principle that some general words in the constitution may be so construed as to give it, or on the principle that congress possesses the powers not expressly reserved. But this clause was in the confederation, and is said to be introduced into the constitution from very great caution. Even a cautionary provision implies a doubt, at least, that it is necessary; and if so in this case, clearly it is also alike necessary in all similar ones.

According to Lee, the true purpose of the clause was merely to protect popular tradition: "The fact appears to be, that the people in forming the confederation, and the convention . . . acted naturally; they did not leave the point to be settled by general principles and logical inferences; but they settle the point in a few words, and all who read them at once understand them. It was argued, therefore, that a Bill of Rights was needed to safeguard against the expansion of federal power beyond such limited purpose(s).