Robert J. Delahunty Associate Professor of Law at the University of St. Thomas School of Law writes for the Heritage Foundation:
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 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 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 Ramsey, 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 of 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." The Federalist No.
22 (Alexander Hamilton). 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 apparently never been litigated,
but it has been interpreted and enforced through a long series of opinions of
the Attorneys General and by less-frequent opinions of the Comptrollers
General. Congress has also 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.
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