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

B Prohibitions of Nobility - continued

Much of the modern confusion on this point probably stems from the multiple senses of the word 'title.' While 'title,' during the framers' day, could refer to 'an appellation attaching to an individual or family in virtue of rank,' it could also refer to 'an appellation attaching to an individual or family in virtue of . . . association with certain lands,' or to the 'legal right to the possession of property (esp. real property),' or to any other 'alleged or recognized right.' f242 As Lord Coke explained, "Every right is a title." f243 To ban the 'titles' of nobility, then, was to ban both the honorific labels of nobility and, more importantly, the arrangements of right and privilege which normally accompanied those labels. f244 In order to determine whether the prohibitions on nobility might have any present application to modern America, we must identify those attributes and arrangements of nobility which the framers recognized as harmful, understand why they were considered harmful, and determine whether social or legal arrangements raising similar concerns exist today. f245

We have already noted the single most problematic element of nobility: the perpetual or hereditary nature of the conveyed privileges. We should next look at the specific types of privileges which were conveyed and held in this fashion.

Traditionally, the privilege most intimately linked with nobility was the ownership and control of landed estates. f246 When made perpetual, such ownership and control raised (and continues to raise) special concerns. As noted above, Jefferson, Paine, and many of their fellows had rejected perpetual land titles as inconsistent with their conception of the earth as an intergenerational commons. f247

The founders also recognized that institutions which resulted in the concentration of land ownership over time (land monopoly) threatened posterity's individual freedoms and liberties. f248

When the law permits a few people to own most of a nation's land, and to include or exclude other citizens from that land at their discretion, the few citizens then effectively control the many non-owning citizens. f249 This is because the unfettered right to exclude others from one's land logically includes the lesser right to impose conditions upon the permission to enter, work or dwell upon that land. Since every person must inhabit, work and dwell upon some physical space, they must therefore do whatever is demanded in exchange for their presence upon that space. f250 As Henry George would later suggest, "It was not nobility that gave land, but the possession of land that gave nobility." f251

These same concerns apply to the ownership of any essential natural resource, including water, air, and sunlight. Monopolized ownership of such resources undermines the foundations of democratic government to the extent that it makes the many dependent for their lives and livelihood upon the few. It is clear that one of the framers' intentions in creating the anti-nobility clauses was to protect the democratic republic from gross inequalities in power. When such inequalities are allowed to become perpetual or hereditary, they raise generational sovereignty concerns and become issues of intergenerational equity.

Aside from the ownership of land and other natural resources, nobility also entailed explicitly disproportional political influence. Lords were granted an institutional voice in the shaping of public policy, whereas untitled freemen traditionally had little or no voice. This disproportionate political representation served the important function of protecting the noble classes' other hereditary privileges. We may assume that another motivation of the anti-nobility amendments was to insure a more democratic control over public policy. f252

<< previous   Stewardship contents  next -Part III-2-4 >>


©Constitutional Law Foundation, 50 West 36th Street, Eugene, Oregon 97405
Phone: 541-683-4500, Fax: 541-683-4492,
web site design: