Stop privileges for government officials: Column

Glenn Harlan Reynolds | USATODAY

All over America, government officials enjoy privileges that ordinary citizens don't. Sometimes it involves bearing arms, with special rules favoring police, politicians and even retired government employees. Sometimes it involves freedom from traffic and parking tickets, like the special non-traceable license plates enjoyed by tens of thousands of California state employees or similar immunities for Colorado legislators. Often it involves immunity from legal challenges, like the "qualified" immunity to lawsuits enjoyed by most government officials, or the even-better "absolute immunity" enjoyed by judges and prosecutors. (Both immunities -- including, suspiciously, the one for judges -- are creations of judicial action, not legislation).

Lately it seems as if these kinds of special privileges are proliferating. And it also seems to me that special privileges for "public servants" that have the effect of making them look more like, well, "public masters," are kind of un-American. Even more, I'm beginning to wonder if they might actually be unconstitutional. Surely the creation of two classes of citizens, one more equal than the others, isn't the sort of thing the Framers intended. Why didn't they put something in the Constitution to prevent it?

Well, actually, they did. Article I, Section 9 of the Constitution prohibits the federal government from granting "titles of nobility," and Article I, Section 10 extends this prohibition to the states -- one of the few provisions in the original Constitution to impose limits directly on states. Surely the Framers must have considered this prohibition pretty important.

Well, yes. But since then we've read it rather narrowly: Basically, so long as people aren't granted titles like Baron, Duke, or Sir, nobody even considers the question of titles of nobility. And, of course, the kinds of privileges I describe aren't hereditary (and though the growth of political dynasties like the Bushes and the Clintons should give people pause, it doesn't rise to the level of titles of nobility -- does it?). But in England they have Life Peerages as Barons that aren't hereditary, and the titles of nobility clause also forbids American officials from accepting knighthoods, which aren't hereditary, from foreign nations without consent of Congress. So the ban on titles of nobility can't just be a matter of word-games, or descent.

There hasn't been much judicial action on the titles of nobility clause -- they are, as described in Prof. Jay Wexler's book of the same name, among the Constitution's "odd clauses." But since we always hear that the Constitution is a "living, breathing document" that must change to adapt to the times, perhaps in this era of big government and accumulating special privileges it is time to give the ban on titles of nobility a second look.

How would I do it? I'd provide that any rule giving government officials -- whether elected, appointed, or members of the civil service -- preferential treatment compared to ordinary citizens would have to withstand "strict scrutiny." That is, I'd treat discrimination based on government employment status the same way we currently treat racial discrimination. To withstand strict scrutiny, a government action must serve a "compelling government interest," and must be narrowly tailored to serve that interest. And there must be no less restrictive means of achieving the same goal. That would be especially true where the distinctions -- special privileges relating to legal process, or the right to bear arms, for example -- parallel those enjoyed by the nobility in the Framing era.

Applying this to distinctions between government employees and citizens would undoubtedly knock down a lot of those distinctions. But, in my opinion, that wouldn't be so bad. Frankly, our political class seems to have gotten a little full of itself.

Is this too much "living, breathing" Constitution for you? Well, okay, but it's less of a stretch than we've seen in other areas of constitutional interpretation, such as the Commerce Clause. And it addresses a real problem: The growth not only of government, but of a governing class that believes, in a very real way, that it is fundamentally above the law.

Address this my way, or some other way. But one way or another, it's likely to be addressed. At least my way doesn't involve pitchforks.

Glenn Harlan Reynolds is professor of law at the University of Tennessee and the author of The New School: How the Information Age Will Save American Education from Itself. He blogs at InstaPundit.com.

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