May the President Accept a Foreign Title of Nobility?

Over at The Originalism Blog, Professor Seth Barrett Tillman cites a new piece of evidence for his position that the President does not hold an office “under” the United States within the meaning of the Constitution. (For prior discussions of Professor Tillman’s views on this see here, here and here), Specifically, he points to the fact that President Washington “accepted a framed full-length portrait of Louis XVI from the French ambassador.”

This acceptance, Tillman suggests, would have been unconstitutional if Washington had been an officer under the United States at the time because Article I, section 9, clause 8 provides:

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.

Because the portrait was evidently a “present” from the French government, it could not be accepted by any officer under the United States without the consent of Congress. Tillman contends that no such consent was sought or given; thus, Washington must either have (a) violated the Foreign Emoluments Clause or (b) believed that it was inapplicable to the president because his office was not “under the United States.”

Note that if the latter were true, it would mean that Washington not only believed the Clause inapplicable to the office of the president, but he thought this conclusion so inescapable and non-controversial that it was unnecessary to seek any formal opinion or make any record of his decision. It would also suggest he was unconcerned with the implication that the president could accept an office or title of nobility from a foreign government.

These assumptions are hard to indulge. As far as I know, there is no direct evidence that either Washington or any of his contemporaries interpreted the phrase “office under the United States” to exclude the presidency. This is not a natural or self-evident reading of the constitutional text, as illustrated by the fact that the conventional wisdom has long been to the contrary. Thus, we would have to believe that Washington acted on the basis of an original public meaning that was crystal clear to him, yet somehow vanished without a trace.

Even if we assume, for argument’s sake, that Washington could have read the text in the way Tillman proposes, it would still seem unlikely that he would have accepted the Louis XVI painting on that basis. Surely Washington would have been as concerned about violating the spirit as the letter of the Constitution. Article II expressly bars the president from receiving, during his term, “any other Emolument from the United States, or any of them.” Would not Washington have hesitated before interpreting the Foreign Emoluments Clause to permit the receipt of emoluments from a foreign government?

Even more importantly, it is hard to believe that Washington would have interpreted the Foreign Emoluments Clause to allow the president to receive an office or a title of nobility from a foreign government. The Constitution explicitly prohibits both federal and state governments from granting titles of nobility to anyone. Although it does not prohibit private citizens from receiving titles of nobility from foreign governments, this should not be taken as condoning the practice. William Rawle notes that “[a] salutary amendment, extending the prohibition to all citizens of the United States, and disenfranchising those who infringe it, has been adopted by some of the states; but not yet by a sufficient number.” W. Rawles, A View of the Constitution 120 (2d ed. 1829). It does not strike me as likely that Washington’s sensibilities were much different, or that he would have lightly interpreted the Foreign Emoluments Clause in the manner Tillman suggests.

For these reasons I would look for another explanation for Washington’s acceptance of the painting from the French ambassador. Perhaps he believed that he did have congressional consent for receiving such an item. Perhaps he did not believe, at the time he accepted the painting, that it was a personal gift (though he later took it to Mount Vernon). I would be reluctant to conclude that President Washington intentionally or negligently violated the Constitution, but even this seems more likely than the suggested alternative.