Intergenerational Justice in the United States Constitution,
The Stewardship Doctrine:
III. Constitutional Text

B Prohibitions of Nobility

If the founders were truly concerned that later generations not be wrongfully prejudiced by earlier generations, we would expect that concern to be evidenced in additional constitutional provisions, supplemental to the Preamble. We would expect the framers to have anticipated some of the most likely occasions for generational over-reaching and to have drafted appropriate stipulations to protect posterity's interests. These expectations are satisfied by provisions such as those prohibiting "titles of nobility." f234

The framers included these prohibitions in Article I, sections 9 and 10 because they recognized that nobility, as an institution of hereditary privilege,f235 posed conspicuous issues of generational sovereignty. In Common Sense, Thomas Paine had identified the hereditary transmission of the English monarchy as "an insult and an imposition on posterity."f236 Many early state constitutional provisions conjoined bans on nobility with wider bans on hereditary privilege. f237

The framers understood that grants of nobility, along with other perpetual or hereditary privileges, do worse than limit later generations' right to govern themselves as they see fit. They also threaten later generations' right to inhabit an egalitarian society. This is because perpetual or hereditary grants necessarily favor certain individuals and families of the distant future while comparatively disadvantaging others. Such awards violate the egalitarianism which rests at the core of the nation's founding: the conviction that "all men are created equal." f238 Each perpetual privilege bestowed deprives future citizens of their right to be born onto a level social playing field, where public benefits and resources are distributed impartially, according to demonstrated merit or need.

The anti-nobility provisions represent an interesting and unusual approach to the problem of inequality. While most of the federal constitutional doctrine which has been developed to address disparate treatment by government has concentrated on uneven distributions of dis-advantages, f239 the anti-nobility provisions focus on the unequal award of privileges and advantages ("titles"). The ramifications of a constitutional provision which concerns itself primarily with benefits, as opposed to burdens, are potentially enormous. f240

Considering the potential scope of these ramifications, the scarcity of legal scholarship and jurisprudence dealing with the anti-nobility provisions is striking.f241 An overwhelming majority of legal scholars and judges seem to have assumed that the provisions are no more than quaint historic relics. Granted, the assumption is not difficult to understand. Modern public officials do not go by honorifics such as 'Prince,' 'Baron,' or 'Duke,' and there is no apparent demand for such designations in the near future.

However, whether or not the ancient labels of nobility have fallen into disuse or not is not really the relevant question. It seems unlikely that the framers' intent in including the provisions was simply to eradicate a set of labels. We would disrespect the framers by assuming that they were obsessed with forms and labels, and indifferent to substance. Consider: if Congress were to create an hereditary executive with the rights and prerogatives of a king and to employ the identifier "president" in the place of "king," would anyone imagine that such a scheme avoided constitutional censure? Of course not.

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