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.
Article VI of the Articles of Confederation was the source of the Constitution’s prohibition on federal titles of nobility and the so-called Emoluments Clause. The clause sought to shield the republican character of the United States against corrupting foreign influences.
The prohibition on federal titles of nobility—reinforced by the corresponding prohibition on state titles of nobility in Article I, Section 10 and more generally by the republican Guarantee Clause in Article IV, Section 4—was designed to underpin as well the republican character of the American government. In the ample sense James Madison gave the term in The Federalist No. 39, a “republic” was “a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure for a limited period, or during good behavior.”
Republicanism so understood was the ground of the constitutional edifice. The prohibition on titles of nobility buttressed the structure by precluding the possibility of an aristocracy, whether hereditary or personal, whose members would inevitably assert a right to occupy the leading positions in the state.
Further, the prohibition on titles complemented the prohibition in Article III, Section 3, on the “Corruption of Blood” worked by “Attainder[s] of Treason” (i.e., the prohibition on creating a disability in the posterity of an attained person upon claiming an inheritance as his heir, or as heir to his ancestor). Together these prohibitions ruled out the creation of certain caste-specific legal privileges or disabilities arising solely from the accident of birth.
In addition to upholding republicanism in a political sense, the prohibition on titles also pointed to a durable American social ideal. This is the ideal of equality; it is what David Ramsay, the eighteenth-century historian of the American Revolution, called the “life and soul” of republicanism. The particular conception of equality denied a place in American life for hereditary distinctions of caste—slavery being the most glaring exception. At the same time, however, it also allowed free play for the “diversity in the faculties of men,” the protection of which, as Madison insisted in The Federalist No. 10, was “the first object of government.” The republican system established by the Founders, in other words, envisaged a society in which distinctions flowed from the unequal uses that its members made of equal opportunities: a society led by a natural aristocracy based on talent, virtue, and accomplishment, not by an hereditary aristocracy based on birth. “Capacity, Spirit and Zeal in the Cause,” as John Adams said, would “supply the Place of Fortune, Family, and every other Consideration, which used to have Weight with Mankind.” Or as the Jeffersonian St. George Tucker put it in 1803: “A Franklin, or a Washington, need not the pageantry of honours, the glare of titles, nor the pre-eminence of station to distinguish them. . . . Equality of rights . . . precludes not that distinction which superiority in virtue introduces among the citizens of a republic.”
Similarly, the Framers intended the Emoluments Clause to protect the republican character of American political institutions. “One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption,” Alexander Hamilton wrote in The Federalist No. 22. And in The Federalist No. 84, he stated, “This may truly be denominated the cornerstone of republican government; for so long as they are excluded there can never be serious danger that the government will be any other than that of the people.”
The delegates at the Constitutional Convention specifically designed the clause as an antidote to potentially corrupting foreign practices of a kind that the Framers had observed during the period of the Confederation. Louis XVI had the custom of presenting expensive gifts to departing ministers who had signed treaties with France, including American diplomats. In 1780, the King gave Arthur Lee a portrait of the King set in diamonds above a gold snuff box; and in 1785, he gave Benjamin Franklin a similar miniature portrait, also set in diamonds. Likewise, the King of Spain presented John Jay (during negotiations with Spain) with the gift of a horse. All these gifts were reported to Congress, which in each case accorded permission to the recipients to accept them. Wary, however, of the possibility that such gestures might unduly influence American officials in their dealings with foreign states, the Framers institutionalized the practice of requiring the consent of Congress before one could accept “any present, Emolument, Office, or Title, of any kind whatever, from . . . [a] foreign State.”
Like several other provisions of the Constitution, the Emoluments Clause also embodies the memory of the epochal constitutional struggles in seventeenth-century Britain between the forces of Parliament and the Stuart dynasty. St. George Tucker’s explanation of the clause noted that “in the reign of Charles the [S]econd of England, that prince, and almost all his officers of state were either actual pensioners of the court of France, or supposed to be under its influence, directly, or indirectly, from that cause. The reign of that monarch has been, accordingly, proverbially disgraceful to his memory.” As these remarks imply, the clause was directed not merely at American diplomats serving abroad, but more generally at officials throughout the federal government.
The Emoluments Clause has rarely been litigated. The D.C. Circuit Court in U.S. ex rel. New v. Rumsfeld (2006) dismissed a claim by a U.S. soldier who alleged that the required wearing of a United Nations’ patch and cap violated the clause. The appeals court upheld the District Court’s decision in 2004 that Congress had exercised its power of “Consent” under the clause by enacting the Foreign Gifts and Decorations Act, which authorizes federal employees to accept foreign governmental benefits of various kinds in specific circumstances.
The Emoluments Clause has been interpreted and enforced through a long series of opinions of the Attorneys General and by less frequent opinions of the Comptrollers General. A recent debate has emerged regarding the applicability of the clause to the Nobel Peace Prize, which is awarded by a committee elected by the Storting (the Norwegian Parliament). Three sitting Presidents have been awarded the prize: Theodore Roosevelt, Woodrow Wilson, and Barack Obama. President Roosevelt waited until he left office to accept the prize and even then submitted the monetary prize to Congress for consent. However, after President Obama was awarded the Nobel Prize in 2009, the Office of Legal Counsel argued that the Emoluments Clause was not a bar to acceptance of the prize because it was not awarded by a “foreign state.” The Office argued that the Nobel Committee had grown politically independent from the Parliament over time. Additionally, the Office contended that historically all federal officeholders awarded the prize received it without congressional consent. President Obama accepted the award in 2009 and donated the monetary prize to various charities without seeking congressional consent.
It is also argued that the Emoluments Clause is implicated when U.S. officials take teaching or speaking positions at foreign universities. During the Clinton Administration, the Office of Legal Counsel reasoned that the clause was not violated when two scientists at NASA were employed at a foreign public university but the university made employment decisions independent of the foreign government (citing a similar 1986 opinion by then Deputy Assistant Attorney General Samuel Alito).
The Emoluments Clause has also been applied to private citizens who serve on federal advisory committees. The Office of Legal Counsel wrote in 1993 that professors serving on the Administrative Conference of the United States could not accept any payment from a foreign government or university. The Office subsequently wrote opinions that retreated from this expansive view, arguing that many federal committee members do not occupy “Offices of Profit or Trust.”
It is also questioned whether the clause applies to Members of Congress. In 2009, Senator Edward Kennedy received an honorary knighthood from Queen Elizabeth II, and although there is no indication that he sought consent from Congress, he received a standing ovation from lawmakers when the announcement of his award was made.
Applicability of Emoluments Clause to Employment of Government Employees by Foreign Public Universities, 18 Op. Off. Legal Counsel 13 (1994)
Applicability of the Emoluments Clause to Non-Government Members of ACUS, 17 Op. Off. Legal Counsel 114 (1993)
Gifts from Foreign Prince, 24 Op. Att'y Gen. 116 (1902)
Memorandum for the Counsel to the President, from David Barron, Assistant Attorney General, Office of Legal Counsel of the Department of Justice, Applicability of the Emoluments Clause and the Foreign Gifts and Decorations Act to the President's Receipt of the Nobel Peace Prize (Dec. 7, 2009), http://www.justice.gov/olc/2009/emoluments-nobel-peace.pdf
Gary J. Edles, Service on Federal Advisory Committees: A Case Study of OLC's Little-Known Emoluments Clause Jurisprudence, 58 Admin. L. Rev. 1 (2006)
President Reagan's Ability to Receive Retirement Benefits from the State of California, 5 Op. Off. Legal Counsel 187 (1981)
2 Ronald D. Rotunda & John F. Nowak, Treatise on Constitutional Law: Substance and Procedure §9.18 (5th ed. 2012)
Zephyr Teachout, Gifts, Offices, and Corruption, 107 Nw. U. L. Rev. Colloquy 30 (2012)
Eugene Volokh, Does Senator Kennedy Need Congressional Permission for His Knighthood?, The Volokh Conspiracy (Blog) (Mar. 4, 2009 1:07 PM), at http://www.volokh.com/2009/03/04/does-senator-kennedy-need-congressional-permission-forhis-knighthood
Jay Wexler, The Odd Clauses (2011)
U.S. ex rel. New v. Rumsfeld, 448 F.3d 403 (D.C. Cir. 2006)