The Full Faith and Credit Clause

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

—Stephen E. Sachs

Introduction

The Full Faith and Credit Clause is among the Constitution’s few rules of “horizontal federalism” governing relations among the states. At a minimum, it requires states to receive each other’s laws and judgments in evidence, while Congress is authorized to impose greater obligations of recognition and enforcement. Modern doctrine, however, attributes substantially more power to the clause as well as to the courts that interpret it.

History Before 1787

Before the Revolution, the colonies were legally independent of one another. Like foreign governments, they sometimes adopted statutes that recognized each other’s public records, such as recorded deeds or judicial judgments.¹ Most states, however, relied on recognition doctrines found in international law and in the common law, which might require that foreign documents be proven by testimony in local courts. Local courts could also revisit foreign judgments, treating their determinations as only prima facie evidence of the merits.² Judgment creditors in one state might thus face difficulties collecting debts in another—especially if, as James Madison described in Federalist No. 42, “the effects liable to justice, may be suddenly and secretly translated in any stage of the process, within a foreign jurisdiction.”

The Articles of Confederation required that each state give “Full Faith and credit . . . to the records, acts, and judicial proceedings of the courts and magistrates of every other State.”³ However, the Articles did not give the Confederation Congress any power to enforce this provision, and state courts soon disagreed as to what this ambiguous charge meant. One Pennsylvania court, for example, held that this Full Faith and Credit Clause entailed accepting such documents only as full evidence of the original proceedings, not necessarily as binding the parties.⁴ By contrast, a South Carolina court gave the clause greater effect by treating parties as bound by the prior judgment of a sister state’s court.⁵

By 1781, a congressional committee had proposed amending the Articles to clarify this obligation. Congress would have new powers to declare “the method of exemplifying records” and especially “the operation of the Acts [&] Judicial Proceedings” of one state in another.⁶ Congress, however, took no action.

The Constitutional Convention

The Philadelphia Convention adopted this suggestion. The Committee of Detail’s report largely repeated the Articles’ version of the clause.⁷ James Madison of Virginia suggested that Congress should be empowered “to provide for the execution of Judgments in other States.”⁸ Edmund Randolph, also of Virginia, thought executing other states’ judgments would be unprecedented; he offered more specific language for recognizing judgment debts issued with proper jurisdiction.⁹

Gouverneur Morris of Pennsylvania proposed punting the question to Congress, enabling it “by general laws” to “determine the proof and effect of such acts, records, and proceedings.”¹⁰ A committee endorsed Morris’s proposal as limited to “the effect [of] judgments.”¹¹ James Wilson of Pennsylvania emphasized the proposal’s improvement upon the Confederation’s clause, which he saw as largely useless: “[I]f the Legislature were not allowed to declare the effect the provision would amount to nothing more than what now takes place among all Independent Nations.”¹²

Morris again proposed expanding Congress’s power to address the “effect” of records and legislative acts as well. William Samuel Johnson of Connecticut and Edmund Randolph objected to this power as too broad,¹³ but Morris’s motion carried.¹⁴ The final version of the Constitution thus not only extended the Articles’ language to cover “public Acts”—apparently with an eye to state insolvency laws¹⁵—but also added a power in Congress “by general Laws” to “prescribe the manner” of proving public documents “and the Effect thereof.”¹⁶

The Ratification Debates

During Ratification, debate on the clause focused on this new congressional power. In Federalist No. 42, Madison praised the clause as “an evident and valuable improvement,” especially as compared to the Articles of Confederation’s version, which was “extremely indeterminate” and “of little importance under any interpretation which it will bear.” During the Virginia ratifying convention, George Mason worried that Congress might go too far in declaring the effects of state acts in other states; Madison dismissed his objection, and little more was heard of it.¹⁷ The Anti-Federalist Native of Virginia described the Clause’s benefits as “obvious,”¹⁸ and another Anti-Federalist, Cassius, agreed that “the benefit to be derived from such a regulation must be great, especially to those who are sometimes obliged to have recourse to law.”¹⁹

Early Practice

Unfortunately, the First Congress failed to provide clarity with respect to the effect of state records in other states. A 1790 statute created a detailed process for authenticating state documents but provided only that authenticated “records and judicial proceedings”—and not the acts of state legislatures—would have “such faith and credit given to them in every court” as they enjoyed at home.²⁰ This language resembled other authentication statutes making a copied record as good evidence as the original.²¹ Soon there would be confusion over whether Congress had prescribed any binding effect for these documents at all. As late as 1817, a House committee concluded that Congress had not done so.²²

Judicial Precedent

In the two decades after the Constitution was ratified, state and federal courts again fell into disarray, particularly when it came to enforcing judgments from courts with doubtful jurisdiction. For example, in Armstrong v. Carson’s Executors (1794), Justice James Wilson on circuit read the 1790 Act to require a New Jersey judgment to have precisely the same effect in Pennsylvania “as in the Court from which it was taken.”²³ In the New York case of Hitchcock v. Aicken (1803), Justice James Kent rejected Armstrong’s reasoning, arguing that “there is a manifest and essential difference” between “the same faith and credit” and “the same effect.”²⁴ And in Peck v. Williamson (1813), Chief Justice John Marshall on circuit agreed with Justice Kent, holding that “the constitution makes a pointed distinction between the faith and credit, and the effect,” of a state record.²⁵

In Mills v. Duryee (1813), the U.S. Supreme Court sought to settle the issue. Mills construed the 1790 Act as determining the effect of state judgments, making them conclusive in other states as to the parties’ rights and obligations.²⁶ This rule eventually took hold with an exception for judgments rendered without jurisdiction.²⁷ Over time, however, the rule in Mills was attributed to the Constitution rather than to the act of Congress. In 1805, for example, Justice Joseph Story wrote that the 1790 Act “seems to provide for” admitting out-of-state documents as “evidence only.”²⁸ By 1833, however, Story read both the statute and the Constitution itself to require conclusive effect for state judgments.²⁹ Nevertheless, the statute did not prescribe any effect for state “acts”—meaning that for most of the nineteenth century, neither the Constitution nor the statute was read to address the topic of choice of law, whether to mandate or forbid any use of state laws in other states.

That approach changed with a dictum in Chicago & Alton Railroad v. Wiggins Ferry Co. (1887).³⁰ The Court began to use the clause to regulate state choice of law, requiring effect for those and only those laws within the territorial power of each state to enact—as the Court put it, laws “within the legislative jurisdiction of the enacting state.”³¹

In the twentieth century, the Court has occasionally employed the clause to insist that states hear tort suits arising from accidents in other states as well as to forbid “special rule[s]” of law “hostile to [their] sister States.”³² But because the clause does not describe the several states’ legislative jurisdiction, the Court has largely given up on policing it. Current doctrine permits state courts to employ the law of any state with “a significant contact or significant aggregation of contacts, creating state interests, such that [the choice] is neither arbitrary nor fundamentally unfair.”³³

Open Questions

• In recent years, the clause has been debated most frequently with regard to the interstate recognition of same-sex marriages. Some have focused on its first, self-executing sentence—that “Full Faith and Credit shall be given,” which Madison described as “of little importance.” They argue that this language automatically requires conclusive effect to other states’ laws, even those contrary to local public policy, as anything else would be less than “full.”³⁴ Others have argued that this sentence merely requires accepting sister-state documents as evidence equivalent to the originals, leaving their “effect” wholly up to Congress.³⁵ Still others have argued that the clause requires some degree of force in between, whether as “prima facie proof of the obligation that the plaintiff claimed” or as requiring other states to treat state acts as conclusive within their own territorial jurisdiction.³⁶
• The scope of Congress’s power under the second sentence of the clause has attracted less attention. Congress has used this effects power only occasionally, enacting a few statutes on interstate recognition of child custody and child support. Congress has enacted more controversial statutes such as the Defense of Marriage Act (denying mandated effect to same-sex marriages), which was repealed by the Respect for Marriage Act (requiring marriage recognition without regard to sex).³⁷ In theory, this power could be used to govern both state choice-of-law (by “prescrib[ing] . . . the Effect” of “Acts”) and state personal jurisdiction (by doing the same for “judicial Proceedings”).³⁸ Thus far, however, Congress has not yet chosen to test its limits.

1. Act of Assembly 1731, P.L. 129 (S.C.); Stephen E. Sachs, Full Faith and Credit in the Early Congress, 95 Va. L. Rev. 1201, 1221–22 (2009). ↩︎
2. Walker v. Witter, 99 Eng. Rep. 1, 4 (K.B.) (1778). ↩︎
3. Articles of Confederation, art. IV, § 3. ↩︎
4. James v. Allen, 1 U.S. (1 Dall.) 188, 192 (Pa. C.P. Phila. County 1786). ↩︎
5. Jenkins v. Putnam, 1 S.C.L. (1 Bay) 8, 10 (C.P. & Gen. Sess. 1784). ↩︎
6. 1 DHRC 143, 144. ↩︎
7. 2 Farrand’s 188. ↩︎
8. Id. at 448. ↩︎
9. Id. ↩︎
10. Id. ↩︎
11. Id. at 483–84. ↩︎
12. Id. at 488. ↩︎
13. Id. at 488–89. ↩︎
14. Id. at 489. ↩︎
15. Id. at 447. ↩︎
16. Art. IV, § 1. ↩︎
17. 3 Elliot’s 584–85. ↩︎
18. 9 DHRC 687. ↩︎
19. 5 DHRC 503. ↩︎
20. Act of May 26, 1790, ch. 11, 1 Stat. 122. ↩︎
21. Act of Sept. 15, 1789, ch. 14, 1 Stat. 68; Process Act of 1792, ch. 36, § 12, 1 Stat. 275, 279. ↩︎
22. 31 Annals of Cong. 500 (1817). ↩︎
23. 2 U.S. (2 Dall.) 302, 303 (C.C.D. Pa. 1794) (Wilson, J.); Wade v. Wade, 1 N.C. 601 (Ct. Conf. 1804). ↩︎
24. 1 Cai. 460, 480–81 (N.Y. 1803) (opinion of Kent, J.). ↩︎
25. 19 F. Cas. 85, 85 (C.C.D.N.C. 1813) (No. 10,896) (Marshall, C.J.); Bartlet v. Knight, 1 Mass. (1 Will.) 401, 404–05 (1805) (opinion of Thatcher, J.). ↩︎
26. 11 U.S. (7 Cranch) 481, 484 (1813). ↩︎
27. D’Arcy v. Ketchum, 52 U.S. (11 How.) 165, 176 (1851). ↩︎
28. Joseph Story, A Selection of Pleadings in Civil Actions 296 (1805). ↩︎
29. 3 Story’s Commentaries §§ 1306–07. ↩︎
30. 119 U.S. 615 (1887). ↩︎
31. Id. at 622; David E. Engdahl, The Classic Rule of Faith and Credit, 118 Yale L.J. 1584, 1589 (2009). ↩︎
32. Franchise Tax Bd. of Cal. v. Hyatt, 578 U.S. 171 (2016); Hughes v. Fetter, 341 U.S. 609 (1951). ↩︎
33. Allstate Ins. Co. v. Hague, 449 U.S. 302, 313 (1981) (plurality opinion); Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821–22 (1985). ↩︎
34. Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 Colum. L. Rev. 249, 296 (1992); Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 Yale L.J. 1965, 1986 (1997). ↩︎
35. Sachs, supra at 1229–31. ↩︎
36. Engdahl, supra at 1597; id. at 1588; Jeffrey Schmitt, A Historical Reassessment of Full Faith and Credit, 20 Geo. Mason L. Rev. 485, 488–89, 491–92 (2013). ↩︎
37. 28 U.S.C. §§ 1738A–1738B; Pub. L. No. 104–199, § 2, 110 Stat. 2419, 2419 (1996) (repealed 2022); 28 U.S.C. § 1738C(a). ↩︎
38. Art. IV, § 1; Stephen E. Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249, 1317–18 (2017). ↩︎