Titles of Nobility Awarded by States

There is a lot of tough news out there these days, so I thought I would try a light-hearted post.  I am an Admiral in the Nebraska Navy.  Folks from Nebraska know what this means, but for the rest of you “admiral” is an honorific awarded by the Governor to folks who make a significant contribution to the state.  (Mine was based on the fact that I wrote an article in the Nebraska Law Review.)  You get a fancy certificate and my Admiralty students find it amusing.

Here’s my question.  Is my title unconstitutional?  The Constitution prohibits states from awarding titles of nobility.  Why does this not apply to Nebraska or to Kentucky, which awards honorary colonel positions?  The answer must be that “Admiral” or “Colonel” is not a title, but why is that?

One thought is that titles in the constitutional sense apply only to the ones awarded in Britain at the Founding.  Thus, Nebraska could not make dukes or barons, but it can make admirals.  Another thought is that a title refers only to something that confers legal benefits.  While those sorts of titles would be invalid, this answer is not sufficient.  If Nebraska awarded knighthoods that were just ceremonial, I think we would still conclude that was unconstitutional.

Accordingly, interpreting “titles of nobility” in the Constitution is partly an originalist task (What was a title in 1787?) and partly a functional one (Is a state doing something that is comparable in spirit to those in a harmful way?).

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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9 Responses

  1. Charles Paul Hoffman says:

    This is off-the-cuff, but I suspect the thing that makes titles of nobility different is that they imply that on is inherently of a higher class, while other titles imply that you have done something meritorious. This applies even when the title is not inheritable, as a) there is no quick way to determine whether someone is a life peer or from an ancient house (ignoring google and obviously new titles) and b) the heritage/baggage of the title comes along with it, so that you treat a new “Sir” the same way—more or less—you treated an old “Sir”. For various reasons, small-R republican ideals would tend against aristocratic/noble titles and in favor of earned titles that cannot be inherited.

    While it’s not a perfect comparison, we can look to Canada here as in so many things. In the early days, prominent Canadians were regularly knighted and occasionally granted heriditary titles (the most prominent of which was probably Charles Tupper, who was made a baronet). But, since the 1920s, Canadian governments have requested that noble titles not be conferred on Canadian citizens on democratic grounds. Instead, Canada and the Canadian provinces developed a series of local orders (esp. the Order of Canada) that are awarded on merit. Membership allows use of aroids postnominal letters (depending on the order and rank), but no one really sees it as analogous to titles of nobility, since you don’t get anything out of it other than prestige.

    (For historical buffs, there’s the weird case of the United Empire Loyalists, the descendants of whom can use the post nominal “U.E.” until the end of time, but, again, they don’t get anything out of that beyond being able to claim a long Canadian ancestry.)

    All of which is to say that I don’t ink your honorary admiralty is terribly problematic, though I’d prefer for various reasons that they use non-military titles.

  2. Joe says:

    I don’t know if saying it is not a “title” is shorthand or not, but as the whole comment makes clear it has to be a “title of nobility.” I do think that would be a functional term. Reading the Wiki page, the title here sounds like something of a joke, at least tongue in cheek (talk of “all officers, seamen, tadpoles and goldfish under your command”) and is not truly ‘nobility.’

    The term is something a term of art that really provides a special position with class based implication. Thus, some suggest legacy scholarships might in some fashion violate the clause. Also, I don’t know if even with all that “admiral” is a title of “nobility.” Take the whole honorary “colonel” bit in “Inherit the Wind.” If someone is actually made an “admiral’ or a “colonel,” that isn’t a class based rank like “lord” or something. It is an honorary title like “Sir” Paul McCartney. But, as you say, there might be a historical issue with that title.

    Anyway, you are in good company — QEII, e.g. http://en.wikipedia.org/wiki/Nebraska_Admiral

  3. Dan Cole says:

    The provision against awarding titles of nobility is yet another obsolete and impractical constitutional rule that needs to be changed, along with most of the rest of the constitution. Imagine how much state and federal budget problems might be relieved by selling titles of nobility. It would be functionally similar to a lottery, but instead of operating like a regressive tax on poor people it would be a progressive tax on the wealthy.

  4. Carlton Larson says:

    I wonder if anyone has written a law review article about that ….


  5. Brett Bellmore says:

    Does the nobility clause actually say anything about the titles having to be offered in a “harmful way” to be barred?

  6. Gerard Magliocca says:

    No, but I was trying to phrase the sentence in such a way as to avoid including purely ceremonial titles that are not part of the British tradition.

  7. mls says:

    The good news is your title is totally constitutional. The bad news is the Nebraska navy is being mobilized and deployed to the Black Sea.

  8. Brett Bellmore says:

    I don’t really see a good reason why we should spare purely ceremonial titles, any more than we should spare purely ceremonial bills of attainder. What’s wrong with just obeying the Constitution, period? Are purely ceremonial titles so important that we actually NEED to be doing something that looks or sounds like what the Constitution prohibits?

    And I could easily see “purely ceremonial” titles evolving into something real, by tiny increments which would not arouse the judiciary’s ire, and then being protected as established practice.

    No, I think that the duty of officeholders to not violate the Constitution implies that they shouldn’t skirt as close to violating it as they can, or look for ways to almost but not quite violate it. They should treat it respectfully, and avoid even the questionable cases.

  9. Gerard Magliocca says:

    So is Admiral a title of nobility under your thinking?