The classic rule of faith and credit

Yale Law Journal

Volumn 118, Issue 8, 2009, Pages 1584-1659

  Engdahl, David E ^a  

^a SEATTLE UNIVERSITY   (United States)

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EID: 70349687546     PISSN: 00440094     EISSN: None     Source Type: Journal    
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References (451)

1. U.S. CONST, art. IV, § 1. "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." Id.
2. Act of May 26, 1790, ch. XI, 1 Stat. 122. For the relevant text of the 1790 Act, see infra text accompanying note 217.
3. Id. (emphases added).
4. Articles of Confederation of 1781 art. IV, para. 3; see infra note 100 and accompanying text.
5. The Federalist NO. 42, at 287 (James Madison) (Jacob E. Cooke ed., 1961).
6. U.S. CONST, art. IV, § 1 (emphasis added). For documentation and further detail of the Convention proceedings summarized in this and the preceding paragraphs, see infra Part III.
7. See infra text accompanying notes 139-162. Even late in the colonial era there were reasons for such a provision, which some states had addressed whether or not they undertook to give other colonies' judgments or other records local effect. See infra text accompanying notes 77-99.
8. The Federalist NO.42 (James Madison), supra note 5, at 287.
9. Compare the text of the 1790 Act-"the said records and judicial proceedings . . . shall have such faith and credit given to them . . . as they have by law or usage in the courts of the [originating] state" - with 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" (emphases added). Supra notes 1-2 and accompanying text.
10. Christmas v. Russell, 72 U.S. (5 Wall.) 290, 301-02 (1866) (reciting that the Clause empowered Congress, whose Act prescribed effect); D'Arcy v. Ketchum, 52 U.S. (11 How.) 165 (1850) (attributing sister-state effect to Congress's prescription); Hampton v. McConnel, 16 U.S. (3 Wheat.) 234 (1818) (reaffirming unanimously Mills v. Duryee, 11 U.S. (7 Cranch) 481, 484 (1813), which distinguished the import of "full faith and credit" in the constitutional provision from the import of "faith and credit" in the "such . . . as" clause of the Act). The opinion in Christmas v. Russell also cited to Justice Joseph Story's Commentaries on the Constitution, without evident recognition that before writing that treatise Justice Story had abandoned the classic rule articulated in Mills, and was arguing instead that replication of the effect of sister-state judgments is mandated by the constitutional provision itself. See infra text accompanying notes 308-309. The widespread circulation and prestige of Justice Story's treatise-and the profession's failure to notice (or to appreciate) his deviation from the classic rule-seem to have been chiefly responsible for the post-Civil War shift in construing the Full Faith and Credit Clause.
11. Notably, the 1790 Act prescribing the replication rule of effect did not employ the word "full." Not until enactment of the 1948 Judicial Code, ch. 646, 62 Stat. 947 (codified as amended at 28 U.S.C. § 1738 (2000)), was "full" added to the "faith and credit" phrase in the statute.
12. See, e.g., Douglas Laycock, Equal Citizens of Equal and Territorial States: The Constitutional Foundations of Choice of Law, 92 COLUM. L. REV. 249, 293 (1992) ("If the constitutional clause is self-executing and legislation is optional, which is what the constitutional text plainly says, then Congress was not obliged to speak and congressional silence means nothing.").
13. Not until enactment of the 1948 Judicial Code did Congress extend its "such . . . as" rule to embrace legislation. For discussion of this aspect of the 1948 Code and the consequent reach of the present federal statute, see infra text accompanying notes 318-323.
14. Chi. & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887).
15. Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 185 (1880).
16. Chi. & Alton R.R., 119 U.S. at 622.
17. The different view was that of Justice Story. Although he wrote the Court's first and most thorough opinion propounding the classic rule in Mills v. Duryee, 11 U.S. (7 Cranch) 481 (1813), Justice Story later abandoned it and propounded the very different view articulated in his widely circulated treatises and other writings. For further discussion, see infra text accompanying notes 302-313. Ironically, Justice Story himself never applied his changed view to statutes. Indeed, its subsequent extrapolation to them violated Justice Story's own premises regarding legislative jurisdiction. See infra note 312 and accompanying text.
18. An early example was Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota, 134 U.S. 418 (1890), which confused policy with "truth" as "eminently a question for judicial investigation." Id. at 457-58. The most noted exemplar, of course, was Lochner v. New York, 198 U.S. 45 (1905).
19. Plumb v. Goodnow's Adm'r, 123 U.S. 560, 562 (1887).
20. Among the dozens of cases employing the idiom (which virtually disappeared from use after 1918), were Gasquet v. Fenner, 247 U.S. 16, 17 (1918); Bates v. Bodie, 245 U.S. 520, 531 (1918); Fall v. Eastin, 215 U.S. 1, 2 (1909); Haddock v. Haddock, 201 U.S. 562, 603, 605 (1906); Andrews v. Andrews, 188 U.S. 14, 33-42 (1903); and Huntington v. Attrill, 146 U.S. 657, 666 (1892).
21. Larry Kramer, Same-Sex Marriage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 YALE L.J. 1965, 1976 (1997).
22. See, e.g., Thomas v. Wash. Gas Light Co., 448 U.S. 261, 271-72 (1980) (Stevens, J.) (plurality opinion) (noting that "this Court's responsibility for the final arbitration of full faith and credit questions," specifically includes questions of "extraterritorial effect") ; Pac. Employers Ins. Co. v. Indus. Accident Comm'n, 306 U.S. 493, 502 (1939) ("This Court must determine for itself how far the full faith and credit clause compels the qualification or denial of rights asserted under the laws of one state... by the statute of another state.").
23. See Milwaukee County v. M.E. White Co., 296 U.S. 268, 276-77 (1935) ("The very purpose of the full faith and credit clause was to alter the status of the several states as independent foreign sovereignties . . . and to make them integral parts of a single nation .. . ."); see also Kramer, supra note 21, at 1986 ("The central object of the Clause was, in fact, to eliminate a state's prideful unwillingness to recognize other states' laws or judgments on the ground that these are inferior or unacceptable. If anything should be off-limits in such a system, it is the public policy doctrine.").
24. See Robert H. Jackson, Full Faith and Credit - The Lawyer's Clause of the Constitution, 45 COLUM. L. REV. 1 (1945).
25. See, e.g., LEA BRILMAYER, CONFLICT OF LAWS § 3.3.1, at 150-53 (2d ed. 1995);
26. David P. Currie, Herma Hill Kay & Larry Kramer, Conflict of Laws: Cases-Comments - Questions 320 (6th ed. 2001);
27. Michael H. Gottesman, Draining the Dismal Swamp: The Case for Federal Choice of Law Statutes, 80 GEO. L.J. 1, 26-27 (1991);
28. Laycock, supra note 12, at 290-91. As to statutes and nonstatutory law, however, there is significant dissent. See, e.g., Louise Weinberg, Theory Wars in the Conflict of Laws, 103 MICH. L. REV. 1631, 1635-36 (2005).
29. See Violent Crime Control and Law Enforcement Act of 1994, 18 U.S.C. § 2265 (2000); Parental Kidnapping Prevention Act of 1980, 28 U.S.C. § 1738A; Full Faith and Credit for Child Support Orders Act, 28 U.S.C. § 1738B.
30. Defense of Marriage Act § 2(a), 28 U.S.C. § 1738C.
31. Stephen B. Burbank, Interjurisdictional Preclusion, Full Faith and Credit and Federal Common Law: A General Approach, 71 CORNELL L. REV. 733, 739 (1986);
32. Willis L.M. Reese & Vincent A. Johnson, The Scope of Full Faith and Credit to Judgments, 49 COLUM. L. REV. 153, 153 (1949).
33. James R. Pielemeier, Why We Should Worry About Full Faith and Credit to Laws, 60 S. CAL. L. REV. 1299, 1302 (1987).
34. See, e.g., Kurt H. Nadelmann, Full Faith and Credit to Judgments and Public Acts: A Historical-Analytical Reappraisal, 56 MICH. L. REV. 33 (1957);
35. Ralph U. Whitten, The Original Understanding of the Full Faith and Credit Clause and the Defense of Marriage Act, 32 CREIGHTON L. REV. 255 (1998).
36. Ralph U. Whitten, Full Faith and Credit for Dummies, 38 CREIGHTON L. REV. 465, 491 (2005).
37. In addition to the present article, the interested reader will find enlightening the forthcoming work of Stephen Sachs. See Stephen E. Sachs, Full Faith and Credit in the Early Congress, 95 VA. L. REV. (forthcoming Sept. 2009) (on file with author). Although the first part of Sachs's article surveys the context and some of the development of the "faith and credit" phrase, the principal focus of his work is the decades of effort in Congress, ending in 1822, regarding various proposals to amend or replace the faith and credit statute enacted by the first Congress in 1790. He documents very well the disagreement that persisted during that period, even after the Supreme Court had spoken on the matter, as to whether the 1790 Act actually prescribed any sister-state effect at all, as distinguished from merely affirming the prima facie evidence rule mandated by the Full Faith and Credit Clause itself. While Sachs avoids endorsing my own understanding of the 1790 Act's meaning regarding sister-state "Effect" any further than to acknowledge that it "is intriguing," id. (manuscript at 16 n.103), his work is more than merely complementary to mine; for he reaches the same conclusion that the Full Faith and Credit Clause itself was certainly not understood in that period to mandate any sister-state "effect." That was precisely why - until the Supreme Court's "classic rule" came to be generally accepted - so much effort was repeatedly expended toward enacting a (more incontestable) statutory rule of "Effect." Of course, the strongest evidence of what the Full Faith and Credit Clause meant to the people in whose time it was written is to be found in surviving records of the historic and contemporary usage of the phrase and the words comprising it, and the actual legal practices of that time; evidence that contemporaries did not fall prey to the misunderstandings pervasive today is simply corroborative - albeit significantly so.
38. 11 U.S. (7 Cranch) 481 (1813).
39. Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439 (1943).
40. The judges or barons of any two of these tribunals could sit in the Exchequer Chamber to review some decisions of the third. Parliament also decided some cases by the common law. At least from the early eighteenth century, Parliament occasionally created other tribunals as "courts of record," such as the Courts of Conscience. See 1 WILLIAM HOLDSWORTH, A HISTORY OF ENGLISH LAW 189-191 (7th ed. 1956).
41. 2 Edward Coice, The First Part of the Institutes of the laws of England;
42. Or, a commentary upon littleton §438 (1st American ed. 1853) (1628).
43. Geoffrey Gilbert, The Law of Evidence 61, 92 (3d ed. 1769).
44. Id. at 7.
45. 2 Coke, supra note 36, § 438.
46. Henry John Stephen, A Treatise on the principles of pleading in civil actions 122 (London, Butterworth & Son 1824).
47. See GILBERT, supra note 37, at 14 ("[T]he Courts of Justice that put their Seals to the Copy, are supposed more capable to examine, and more exact and critical in their Examinations, than any other Person is or can be; and besides there is more Credit to be given to their Seal, than to the Testimony of any private Person; and therefore we are more sure of a fair and perfect Copy when it comes attested under their Seals, than if it were a Copy sworn to by any private Person whatsoever.").
48. See id. at 21-30.
49. Trevivan v. Lawrence, (1704) 87 Eng. Rep. 1003, 1004 (Q.B.) (Holt, C.J.).
50. Herbert v. Cook, (1782) 99 Eng. Rep. 560, 563 (K.B.) ; 1 COKE, supra note 36, § 175.
51. Thomlinson's Case, (1605) 77 Eng. Rep. 1379, 1379 (CP.); see MATTHEW HALE, THE HISTORY OF THE COMMON LAW OF ENGLAND 23-24 (Charles M. Gray ed., Univ. of Chicago Press 1971) (1739);
52. Alexander N. Sack, Conflicts of Laws in the History of the English Law, in 3 LAW: A CENTURY OF PROGRESS: 1835-1935, at 342,355 (1937).
53. De Pratte v. Le Cherewyck, Y.B. (Adm. 1536), noted in 2 SELECT PLEAS IN THE COURT OF ADMIRALTY, in 11 SELDEN SOCIETY PUB., at lxv (1897). A similar case is Mychell v. Ronnall (Adm. 1570), printed in 11 SELDEN SOCIETY PUB., at 140. Max Radin considered each of these cases to be "not a matter of maritime law but an ordinary suit in contract or tort."
54. Max Radin, The Authenticated Full Faith and Credit Clause: Its History, 39 ILL. L. REV. 1, 13-14 (1944).
55. Wier's Case, Pasch 15 Jae. 1, Roll. 530 (1607), reprinted in 6 CHARLES VINER, GENERAL ABRIDGEMENT OF LAW AND EQUITY 512-13 (2d ed. 1792). The case is also cited and summarized as "Wibred and Wyer's case" in Jurado v. Gregory, (1669) 84 Eng. Rep. 320 (K.B.).
56. Rolle's account is quoted in full in Hessel E. Yntema, The Enforcement of Foreign Judgments in Anglo-American Law, 33 MICH. L. REV. 29, 1143 n.22 (1935
57. ) (reprinting 1 HENRY ROLLE, UN ABRIDGMENT DES PLUSIEURS CASES ET RESOLUTIONS DEL COMMON LEG pl. 12, at 530 (London 1663)).
58. See, e.g., Burrows v. Jemino, (1726) 93 Eng. Rep. 815 (Ch.);
59. Gold v. Canham, (1679) 36 Eng. Rep. 640 (Ch.).
60. Bernardi v. Motteux, (1781) 99 Eng. Rep. 364, 365, 367 (K.B.); Lumly v. Quarry, (1702) 87 Eng. Rep. 1061 (K.B.).
61. Hughes v. Cornelius, (1682) 83 Eng. Rep. 247 (K.B.). Other reports of the same leading case appear at Hughes v. Cornelius, (1682) 90 Eng. Rep. 28 (K.B.) and Hughes v. Cornelius, (1682) 89 Eng. Rep. 907 (K.B.).
62. See, e.g., Nadelmann, supra note 30, at 45; Radin, supra note 46, at 14-15; Sack, supra note 45, at 382-383
63. This accords with the explanation of Hughes v. Cornelius given by the Attorney General in argument of a highly celebrated case, the transcript of which was published by order of the House of Peers as The Trial of Elizabeth Duchess Dowager of Kingston for Bigamy. THE TRIAL OF ELIZABETH DUCHESS DOWAGER OF KINGSTON FOR BIGAMY 52 (1776),
64. reprinted in 20 STATE TRIALS NO. 551, at 355-652 (photo, reprint 2000) (T.B. Howell ed., 1814);
65. see also TRIAL OF THE DUCHESS OF KINGSTON 134 (Lewis Melville ed., 1927).
66. See the discussion by Lord Hardwicke, soon after he left King's Bench, in Gage v. Bulkeley, (1744) 27 Eng. Rep. 824 (Ch.). One would have to be able to discern exactly what had been determined. See, e.g., Bernardi v. Motteux, (1781) 99 Eng. Rep. 364, 365, 367 (K.B.); cf. Barzillai v. Lewis, (1782) 99 Eng. Rep. 573 (K.B.). It would also have to be shown who was the foreign judge, in what forum he acted, and "for what the sentence was given." Beak v. Tyrrell, (1689) 90 Eng. Rep. 623 (K.B.).
67. See Gage, 27 Eng. Rep. at 824
68. Otway v. Ramsay, (1737) 107 Eng. Rep. 1113, 1114-15 (K.B.); see infra text accompanying notes 88-94.
69. ALEXANDER F.T. WOODHOUSELEE, MEMOIRS OF THE LIFE AND WRITINGS OF THE HONOURABLE HENRY HOME OF KAMES 294-298 (2d ed. 1814);
70. PHILIP C. YORKE, THE LIFE AND CORRESPONDENCE OF PHILIP YORKE, EARL OF HARDWICKE, LORD HIGH CHANCELLOR OF GREAT BRITAIN 623 (1913).
71. Walker v. Witter, (1778) 99 Eng. Rep. 1, 3n-4n (H.L.) (discussing the 1771 case Sinclair v. Fraser) ;
72. see also 2 THOMAS S. PATON, REPORTS OF CASES DECIDED IN THE HOUSE OF LORDS UPON APPEAL FROM SCOTLAND 1757-84, at 253-254 (reporting Sinclair, although with less detail).
73. Walker, 99 Eng. Rep. at 3n (discussing the 1771 case Sinclair v. Fraser).
74. Crawford v. Witten, (1773) 98 Eng. Rep. 584 (K.B.). The case is discussed in Walker v. Witter, 99 Eng. Rep. at 2n-3n.
75. Crawford, 98 Eng. Rep. at 584.
76. Walker, 99 Eng. Rep. at 3n (quoting Justice Ashhurst's statement in Crawford).
77. Crawford, 98 Eng. Rep. at 584.
78. Walker, 99 Eng. Rep. at 4-6.
79. Id. at 4 (footnote omitted).
80. Id.
81. Id. at 6.
82. Id. at 4.
83. Id. at 6.
84. Id. at 4-5.
85. Id. at 6.
86. (1789) 99 Eng. Rep. at 5 n.2 (K.B.).
87. See A CENTURY OF LAW REFORM: TWELVE LECTURES ON THE CHANGES IN THE LAW OF ENGLAND DURING THE NINETEENTH CENTURY (photo, reprint 1993) (1901).
88. Hessel E. Yntema, The Enforcement of Foreign Judgments in Anglo-American Law, 33 MICH. L. REV. 1129, 1143 n.22 (1935).
89. Radin, supra note 46, at 16.
90. Id. at 12.
91. Nadelmann, supra note 30, at 50.
92. GILBERT, supra note 37, at 19-20.
93. Id. at 20.
94. (1659) 145 Eng. Rep. 409 (Exch.). Parliament, however, could and did ordain that particular seals be accepted for some purposes. See id. at 410.
95. Id. at 410.
96. A separate report of the case reveals the Barons eventually did rule for the defendant, but no accompanying explanation survives. See Olive, 82 Eng. Rep. at 1304.
97. Act of June 3, 1715, printed in ACTS OF ASSEMBLY PASSED IN THE PROVINCE OF MARYLAND, FROM 1612, TO 1715, No.85 (London, John Baskett 1723); see Robert E. Childs, Full Faith and Credit: The Lawyer's Clause, 36 KY. L.J. 30, 35-36 (1947) (quoting the act) ;
98. Whitten, supra note 30, at 275 (same). Copies of records under seal "are call'd by a particular Name Exemplifications, and are of better Credit than any sworn Copy." GILBERT, supra note 37, at 14.
99. Act of Aug. 20, 1731, No.552, § 40, printed in PUBLIC LAWS OF THE STATE OF SOUTH-CAROLINA 123, 129 (photo, reprint 1981) (John Faucheraud Grimké ed., 1790); see Nadelmann, supra note 30, at 39; Whitten, supra note 30, at 276. A similar but more limited Statute was enacted by Parliament the next year, (1732) 5 Geo. 2, c. 7 (Eng.), but it was crafted specifically to assist residents of the homeland.
100. Sack, supra note 45, at 346 (citing fourteenth-century cases). In addition, a statute required (on pain of abatement) that "writs of debt and accompt, and all other such actions," be "taken in their counties . . . where the contracts of the same actions did rise." (1383) 6 Rich. 2, c. 2 (Eng.).
101. See Sack, supra note 45, at 357-371
102. Musgrave v. Wharton, (1611) 80 Eng. Rep. 154 (Exch.).
103. Hall v. Winckfield, (c. 1620) 80 Eng. Rep. 342, 343 (C.P.). Chief Justice Hobart explained in that case that peculiar circumstances might sometimes warrant a choice of venue. Id.
104. Otway v. Ramsay, quoted in (1734, 1736 & 1738) 107 Eng. Rep. 1113, 1113 n.(a) (K.B.). The Otway case is briefly noted also in Otway v. Ramsay, (1738) 93 Eng. Rep. 1051 (K.B.).
105. Otway, 107 Eng. Rep. at 1114-1115 n.(a).
106. Id. at 1115 n.(a).
107. Id. Justice Chappie, on the other hand, thought his colleagues' opinions "very hard," because in that case it meant that "plaintiff cannot recover his loss." Id.
108. Id. at 1114 n.(a).
109. Id.; see also supra text accompanying note 56 (discussing Hardwicke's similar unfulfilled wish regarding Scotland).
110. The willingness of England's common law courts to countenance fictions circumventing this restriction, see Sack, supra note 45, at 370-71, does not prove a similar disposition among colonial jurists.
111. See supra text accompanying notes 58-71.
112. See Walker v. Witter, (1778) 99 Eng. Rep. 1, 4 (K.B.).
113. Nadelmann, supra note 30, at 37 (internal quotation marks omitted) (quoting Governor Hutchinson).
114. 5 ACTS AND RESOLVES OF THE PROVINCE OF MASSACHUSETTS BAY (1769-1780), §1, at 323 (1774) [hereinafter ACTS AND RESOLVES], reprinted in CHARTERS AND GENERAL LAWS OF THE COLONY AND PROVINCE OF MASSACHUSETTS BAY 684 (1814).
115. Id. § 2, at 685.
116. ARTICLES OF CONFEDERATION of 1781 art. IV, para. 3. No such provision appeared in the draft considered in 1776; it was added before the final version was approved "in Congress assembled" the next year.
117. See Nadelmann, supra note 30, at 47-48 & nn.70-74; Radin, supra note 46; G.W.C. Ross, "Full Faith and Credit" in a Federal System, 20 MINN. L. REV. 140, 140-41 & nn.4-5 (1936); Sachs, supra note 32 (manuscript at 17-20).
118. Easily accessible examples appear in the early Supreme Court case of Yeaton v. Fry, 9 U.S. (5 Cranch) 335 (1809). This usage long continued. See, e.g., Sewall v. Haymaker, 127 U.S. 719, 720-21 (1888) (certification by court clerk); Johnson v. United States, 13 F. Cas. 868, 871 (McLean, Circuit Justice, C.C.D. Me. 1830) (No.7418) (attestation by Secretary of the Treasury) ; Langford v. United States, 12 Ct. Cl. 338,345 (1876) (certification by court clerk).
119. John H. Langbein, Historical Foundations of the Law of Evidence: A View from the Ryder Sources, 96 COLUM. L. REV. 1168,1172 (1996).
120. T.P. Gallanis, The Rise of Modern Evidence Law, 84 IOWA L. REV. 499, 504 (1999);
121. see also 3 WILLIAM BLACKSTONE, COMMENTARIES *367 n.(n) (calling it an "excellent treatise");
122. THOMAS PEAKE, A COMPENDIUM OF THE LAW OF EVIDENCE, at iv (1801) (calling Gilbert's book "the basis of every subsequent work on the subject");
123. James Wilson, Of Man as an Individual, in 1 THE WORKS OF JAMES WILSON 197, 221 (Robert Green McCloskey ed., 1967) (describing Gilbert as "deservedly the most approved writer on this part of the law").
124. Nadlemann, supra note 30, at 41.
125. See GILBERT, supra note 37, at 10, 14, 17, 60, 159.
126. Ralph U. Whitten, The Constitutional Limitations on State-Court Jurisdiction: A Historical-Interpretative Reexamination of the Full Faith and Credit and Due Process Clauses (Part One), 14 CREIGHTON L. REV. 499, 522 (1981) [hereinafter Whitten, State-Court Jurisdiction];
127. Ralph U. Whitten, The Constitutional Limitations on State Choice of Law: Full Faith and Credit, 12 MEM. ST. U. L. REV. 1, 12-13 (1981) 12-13 [hereinafter Whitten, State Choice of Law]. Nadelmann had made the same mistake of assuming that Gilbert used "full" to import the highest level of credit. Nadelmann, supra note 30, at 44; see also Laycock, supra note 12, at 296 ("Full faith and credit is the maximum possible credit; it is conceptually impossible to give faith and credit that is more than full.").
128. Whitten, State-Court Jurisdiction, supra note 108, at 523; see also 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1304, at 180 (1833) ("[T]he framers of the confederation, and the constitution . . . intended to give, not only faith and credit. .. but to give to them full faith and credit; that is, to attribute to them positive and absolute verity, so that they cannot be contradicted, or the truth of them be denied . . . .").
129. GILBERT, supra note 37, at 14-15.
130. Id. at 19 (emphasis added). With the same import, but using yet another word, Gilbert said that "things under [public] Seal are supposed to have an intrinsic Credit," whereas writings not under public seal "have no intrinsic Credit in themselves, . . . they have no Credit but what they derive from something else, viz. from the Oath of the Person who attests them, or from some Presumption in their Favour." Id. at 18-19.
131. Id. at 20 (emphasis added). Again, just like "the seals of the King, and of the Publick Courts of Justice, Time out of Mind," so also "the Seal of a Court created by Act of Parliament, is of full Credit without further Attestation, for the Act of Parliament is of the same Notoriety with the Common Law, and therefore the Court, and the Seals thereby created, are supposed universally known to every Body." Id. at 19-20 (emphasis added).
132. Id. at 142.
133. Id. at 158.
134. See id. at 15.
135. 9 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 887 (1907).
136. See, e.g., Nadelmann, supra note 30, at 35-36; Radin, supra note 46, at 5-7; Ross, supra note 102, at 141-42; Whitten, State Choice of Law, supra note 108, at 25-29.
137. ARTICLES OF CONFEDERATION of 1781 art. II.
138. U.S. CONST, pmbl.
139. Whitten, State-Court Jurisdiction, supra note 108, at 541 ("[I]t seems unlikely that the draftsmen of the Articles would have been willing to prescribe a conclusive effect on the merits for sister state judgments, given their general desire to preserve state autonomy.").
140. 21 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 894 (1912).
141. For a discussion of the colonies' attempts to address the Olive and Otway problems, see supra text accompanying notes 77-99.
142. 5 ACTS AND RESOLVES, supra note 98, § 2, at 68.
143. See, e.g., Fauntleroy v. Lum, 210 U.S. 230, 236-237 (1908).
144. See infra text accompanying notes 126-136.
145. Nadelmann, supra note 30, at 44. Whitten followed Nadelmann's lead, characterizing "faith" and "credit" as "evidentiary terms of art." Whitten, State Choice of Law, supra note 108, at 17; Whitten, State-Court Jurisdiction, supra note 108, at 520.
146. STEPHEN, supra note 40, at 122.
147. See, e.g., Bunting v. Lepingwell, (1585) 76 Eng. Rep. 950, 952 (K.B.) (reporter's note); David E. Engdahl, "Full Faith and Credit" in Merrie Olde England: New Insight for Marriage Conflicts Law from the Thirteenth Century, 5 VAL. U. L. REV. 1, 8 n.46 (1970) (discussing William de Cardunville's Case, 1 CALENDARIUM GENEALOGICUM, at 57 (c. 1254)).
148. See, e.g., Case LXXXTV, (1365) 145 Eng. Rep. 33 (Exch.) ("Where the cognizance of a cause belongs to the spiritual courts, and they give sentence in it, and express the cause of their sentence, although this cause of the sentence be null and void in our law; yet our law approves the sentence."); see also Caudrey's Case, (1591) 77 Eng. Rep. 1, at 8-9 (Q.B.) (holding that, despite noncompliance with a statute, ecclesiastical deprivation of a clergyman's benefice "was such as the Judges of the Common Law ought to allow to be given according to the ecclesiastical laws: for seeing their authority is to proceed and give sentence in ecclesiastical causes, according to the ecclesiastical law . . . the Judges of the Common Law ought to give faith and credit to their sentence, and to allow it to be done according to the ecclesiastical law").
149. See, e.g., Grove v. Elliot, (1670) 86 Eng. Rep. 296, 298 (C.B.).
150. Baker v. Rogers, (1600) 78 Eng. Rep. 1018,1019 (C.B.); see also Kenn's Case, (1606) 77 Eng. Rep. 474, 476 (Exch.) ("[W]e will never examine the cause, whether it be true or not . . . ."). For another example, see Noell v. Wells, (1668) 83 Eng. Rep. 385 (K.B.).
151. See, e.g., Hatfield v. Hatfield, (1725) 2 Eng. Rep. 559 (H.L).
152. E.g., Jones v. Bow, (1692) 90 Eng. Rep. 735 (B.R.);
153. Nedham's Case, 8 Co. Rep. 135a, 135b, (1610)
154. 77 Eng. Rep. 678, 679 (C.P.);
155. Kenn's Case, 77 Eng. Rep. at 476;
156. Bunting, 76 Eng. Rep. at 952.
157. E.g., Baker, 78 Eng. Rep. at 1019;
158. Hitcham & Glovers Case, (1618) 81 Eng. Rep. 623 (K.B.).
159. E.g., Grove, 86 Eng. Rep. at 298;
160. Bunting, 76 Eng. Rep. at 952;
161. Caudrey's Case, (1591) 77 Eng. Rep. 1, 9 (Q.B.).
162. The parallel text of Coke's report of Caudrey's Case, which is in Latin, uses the word "faith" but omits "credit": "communis legis Judices ipsorum sententiae fidem adhibere eandem approbare, juxta legem ecclesiasticam latam fuisse debent." 5 Co. Rep. 1a, 7a, (1591)
163. Eng. Rep. 1, 9.
164. Clandestine Marriages Act, 1754, 26 Geo. 2, c. 33 (Eng.);
165. see David E. Engdahl, The Secularization of English Marriage Law, 16 U. KAN. L. REV. 505 (1968).
166. See supra note 52.
167. Jenkins v. Putnam, 1 S.C.L. (1 Bay) 8, 1784 WL 36 (S.C Com. P. Gen. Sess. 1784).
168. This presumably was a reference to the Articles of Confederation.
169. "Due" faith and credit, as distinguished from "full" faith and credit, was a formula routinely used, for example, in notarial certifications, while "full" was the adjective used in "the act of confederation." Thus, in contrast to arguments made in some later cases, at least the South Carolina court did not rely upon misconstruction of the word "full."
170. James v. Allen, 1 Dall. 188 (Pa. C.P. 1786).
171. Ingersoll was reputed to be the "ablest jury lawyer in Philadelphia." MAX FARRAND, THE FRAMING OF THE CONSTITUTION OF THE UNITED STATES 21 (1913).
172. 1 Dall. at 190.
173. Id. at 191-192 (emphasis added).
174. See supra text accompanying notes 111-115.
175. 1 Kirby 119, 119, 126 (Conn. 1786).
176. Id.
177. Id. The court's brief opinion did not explain what this dictum contemplated as "full credence," but once latter-day preconceptions are laid aside, those words are quite suitable for alluding to the traditional prima facie rule.
178. Id. at 126 (opinion of Dyer, J.).
179. 1 Dall. 229 (Pa. 1788).
180. Id. at 231.
181. Id.
182. Id.
183. Id. at 232.
184. 1 Dall. 261 (Pa. 1788).
185. Id. at 261.
186. See infra text accompanying notes 173-204 (detailing these relevant steps at the Constitutional Convention).
187. 159- 1 Dall. at 263.
188. Id. at 261-262
189. Id. at 264.
190. Further evidence that "full faith and credit" was typically understood during the Confederation period to import authenticity and evidentiary sufficiency without precluding further inquiry is a 1786 Delaware statute, discussed in Sachs, supra note 32 (manuscript at 19).
191. The Delaware statute ordained that instruments bearing the seal of the Bank of North America "shall have full Faith and Credit in all and every the Courts within this State." Id.
192. THE FEDERALIST NO.42 (James Madison), supra note 5, at 287.
193. See supra text accompanying notes 77-99.
194. See THE FEDERALIST NO.42 (James Madison), supra note 5, at 287.
195. See FARRAND, supra note 143, at 68 ("Internal evidence shows much of Madison's handiwork in forming these resolutions, but from the fact that they were presented by Randolph they were commonly referred to as the Randolph Resolutions...."). The Resolutions were introduced at the beginning of the Convention, on May 29, 1787.
196. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 18-23 (Max Farrand ed., 1937) [hereinafter FARRAND, RECORDS] (Madison).
197. 1 FARRAND, RECORDS, supra note 166, at 23 (Madison).
198. See Charles Pinckney, Observations on the Plan of Government Submitted to the Federal Convention in Philadelphia, on the 28th of May, 1787, in
199. 3 FARRAND, RECORDS, supra note 166, at 106,112. The document sent by Pinckney to John Quincy Adams in 1818, which Adams published as Pinckney's in the official Journal, is not considered Pinckney's original plan.
200. See 3 FARRAND, RECORDS, supra note 166, at 501-15,595.
201. Paragraph 13 of the draft published in the Journal, id. at 601, is almost identical to the clause reported by the Committee of Detail ten weeks later; it is unknown which copied which in this particular instance.
202. 2 FARRAND, RECORDS, supra note 166, at 85-87,97 (Journal).
203. Id. at 98 (Journal).
204. Report of the Committee of Detail, in 2 FARRAND, RECORDS, supra note 166, at 177, 188. In the original print, this was misnumbered XV.
205. See id. at 181 n.5.
206. See supra text accompanying note 121.
207. ARTICLES OF CONFEDERATION of 1781 art. IV (emphasis added).
208. Gilbert included under the heading of "records" not only "Letters Patent," but also "Acts of Parliament," distinguishing these from "Public Matters that are not Records" such as the Domesday Book, the ports survey, and the register of christenings and burials. GILBERT, supra note 37, at 10,76-79, 92.
209. 2 FARRAND, RECORDS, supra note 166, at 188.
210. FARRAND, supra note 143, at 24.
211. 2 FARRAND, RECORDS, supra note 166, at 447 (Madison).
212. Even a few decades into the nineteenth century, after some judges had begun to take more proactive views of their judicial role, it remained generally accurate to say that [i]n the ordinary use of language it will hardly be contended that the decisions of Courts constitute laws. They are, at most, only evidence of what the laws are .... The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long established local customs having the force of laws. Swift v. Tyson, 41 U.S. (16 Pet.) 1,18 (1842).
213. Cf Ala. Packers Ass'n. v. Indus. Accident Comm'n, 294 U.S. 532, 547 (1935) (containing Justice Stone's famous argument against the "absurd result" that "the statute of each state must be enforced in the courts of the other, but cannot be in its own"). Whereas Justice Stone inferred that it was therefore "unavoidable that this Court determine for itself the extent to which the statute of one state may qualify or deny rights asserted under the statute of another," id., this Article argues that the Framers at Philadelphia deliberately left this quandary for solution by the states severally, subject only to Congress's political control with no oversight role for the federal judiciary at all.
214. See 2 FARRAND, RECORDS, supra note 166, at 176 (Journal).
215. According to Madison's notes, James Wilson (who was a member of the Committee of Detail) and Connecticut's William Samuel Johnson (who was not) answered Williamson by saying they supposed this was to include insolvency acts - "private" acts of state legislatures for relief of individual debtors. 2 FARRAND, RECORDS, supra note 166, at 447.
216. Recall that some of the cases litigated under the Articles's "full faith and credit" provision had involved insolvency acts. Immediately after these comments, however, Mr. Pinckney proposed adding power for the national legislature to "establish uniform laws upon the subject of bankruptcies," id. at 445 (Journal);
217. id. at 447-48 (Madison), and eventually that proposal was approved with scant opposition,
218. id. at 486 (Journal);
219. id. at 489 (Madison). Moreover, Gouverneur Morris promptly proposed replacing "acts of the Legislatures" with the broader phrase "public acts,"
220. id. at 445 (Journal);
221. id. at 448 (Madison), which would render irrelevant any allusion to insolvency acts. Morris's broader phrase was adopted by the Committee and eventually approved.
222. Id. at445,486 (Journal);
223. id. at 489 (Madison).
224. 2 FARRAND, RECORDS, supra note 166, at 445 (Journal) ;
225. id. at 448 (Madison).
226. Id. at 445 (Journal).
227. Id.
228. Id. at 448 (Madison).
229. Id. at 445 (Journal).
230. Id. The other members were John Rutledge of South Carolina and Nathaniel Gorham of Massachusetts, who also had served on the Committee of Detail, and William Samuel Johnson of Connecticut, who had not. This committee of five was also to consider some other issues raised the same day.
231. Id. at 484-485 (Madison).
232. Id. at 485 (Madison).
233. Id. at 488 (Madison) ("[T]he Legislature shall by general laws prescribe the manner in which such acts, Records, & proceedings shall be proved, and the effect thereof.").
234. Id. at 488-89 (Madison). There is no reason to suppose that Morris (or anyone else) conceived the word "thereof as referring to the manner of proof, rather than to "acts, Records, & proceedings." The effect of "acts, Records, & proceedings" had been the whole point of dispute between Morris's earlier motion and the more limited proposal of the committee of five.
235. Id. at 488 (Madison). Madison did not specify whether Johnson spoke for or against Morris's motion. One must infer his position from the fact that he was on the committee of five that now was advancing a proposal contrary to Morris's. If this is true, the discussions in committee might have changed Johnson's view from what it seems to have been on August 29, when he and Wilson responded to Dr. Wilkinson's query about the Detail Committee's proposed "full faith" clause embracing "acts of the Legislature." Madison also reports a comment by Colonel Mason of Virginia, which makes little sense as Madison reports it. Madison says Mason "favored" Morris's motion "particularly if the 'effect' was to be restrained to judgments & Judicial proceedings."
236. Id. at 488. The purpose of Morris's motion, however, was to eliminate that restraint. Perhaps Madison got Mason's comment out of sequence, as it had been made before Morris's motion; or perhaps Madison mistook Mason's position, as Mason had actually spoken for the Committee's proposal instead of for Morris's.
237. Id. at 488 (Madison).
238. Id. at 448 (Madison).
239. Ia. at 488-489 (Madison).
240. Id. at 488 (Madison).
241. Phelps v. Holker, 1 Dall. 261 (Pa. 1788).
242. 2 FARRAND, RECORDS, supra note 166, at 486 (Journal);
243. id. at 489 (Madison).
244. 199- Id. at 486 (Journal);
245. id. at 489 (Madison). The same motion changed the word "may" in the first sentence of the draft clause to "shall."
246. See infra text accompanying notes 214-215.
247. Edward S. Corwin, The "Full Faith and Credit" Clause, 81 U. PA. L. REV. 371,388 (1933).
248. 2 FARRAND, RECORDS, supra note 166, at 489 (Madison) ;
249. see id. at 486 (Journal).
250. For the Report of the Committee of Style, see id. at 590-603. For discussion of the Full Faith and Credit Clause,
251. see id. at 601.
252. U.S. CONST, art. I, §8, cl. 3.
253. To construe this "general Laws" requirement as precluding subject-matter specificity, rather than as contemplating nationwide applicability, would serve no purpose identifiable with concerns aired at the Convention and would severely curtail the discretion the surviving records indicate the delegates intended to ensure.
254. Baker v. Carr, 369 U.S. 186, 217 (1962).
255. E.g., Gilligan v. Morgan, 413 U.S. 1 (1973);
256. Coleman v. Miller, 307 U.S. 433 (1939).
257. U.S. CONST, amend. XIII, §2;
258. id. amend. XIV, §5;
259. id. amend. XV, §2;
260. id. amend. XIX, cl. 2;
261. id. amend. XXIII, §2;
262. id. amend. XXIV, §2;
263. id. amend. XXVI, §2.
264. 142 CONG. REC. 13,359 (1996) (reprinting Letter from Laurence Tribe, Professor, Harvard Law Sch., to Edward M. Kennedy, U.S. Senator (May 24,1996)).
265. LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 1247 n.49 (3d ed. 2000).
266. Kramer, supra note 21, at 2003,2004.
267. U.S. CONST, art. I, §8, cl. 18.
268. "Telic" derives from the Greek telos, meaning "end." The term denotes the "means-to-end" essence of the Necessary and Proper Clause (and its Enforcement Clause analogues): power "for carrying into Execution" other enumerated powers (or "to enforce" constitutional protections).
269. U.S. CONST, art. IV, §1.
270. See, e.g., Laycock, supra note 12, at 292 (stating that "[t]he effect of Madison's amendment was to make the clause self-executing" - meaning, to Laycock, self-executing as to sisterstate effect).
271. ARTICLES OF CONFEDERATION of 1781 art. IV, para. 3 ("Full faith and credit shall be given in each of these states....").
272. Gillian E. Metzger, Congress, Article IV, and Interstate Relations, 120 HARV. L. REV. 1468, 1497-98 (2007).
273. See also the commentary of Douglas Laycock, whose error inheres in the orthodox fallacy that a mandate for sister-state effect is "what the constitutional text plainly says." Laycock, supra note 12, at 293.
274. Act of May 26,1790, ch. XI, 1 Stat. 122 (emphasis added).
275. Unlike in the first main clause, here the word "authenticated" was not used. The second sentence of the Act, however, referred to "records and judicial proceedings authenticated as" specified in the first sentence - showing that the different terms were used as equivalents. Id.
276. Justice Washington explained later at circuit why the less elaborate process could suffice to authenticate legislative acts: "The seal [of a state] is in itself, the highest test of authenticity; and leaving the evidence upon that alone, precludes all controversy, as to the officer entitled to affix the seal, which is a regulation very different in the different states." United States v. Johns, 4 Dall. 412,416 (Washington, Circuit Justice, C.C.D. Pa. 1806).
277. See supra text accompanying note 217.
278. Lord Chief Justice Coke had limited "records" to the rolls containing the pleadings and associated rulings in England's few "courts of record." 1 COKE, supra note 36, §175,
279. 2 id. §438. While Gilbert had stretched the word to include letters patent and acts of parliament, he had explicitly excluded such public archives as the Domesday Book, the ports survey, and the register of christenings and burials.
280. See GILBERT, supra note 37, at 76-79.
281. Act of Mar. 27,1804, ch. LVI, 2 Stat. 298, 289-299
282. Id. at 299. At the same time, the 1804 Act employed the same "such faith and credit... as" construction that was used in the 1790 Act-even though the 1804 Act dealt only with records and books "not appertaining to a court," and prescribed such faith and credit as were given in nonjudicial "offices" in the state of origin.
283. Id. at 298. While nonjudicial records and books might indeed serve as evidence, either in or out of court, the nonjudicial "offices" of their origin would not have "adjudicated" them; they could not have res judicata effect, either at their origin or elsewhere. It thus seems apparent that, in this instance at least, the phrase "faith and credit" was being used and understood to import nothing more than credibility and sufficiency as evidence, and not incontestable conclusiveness.
284. No act of Congress undertook to prescribe sister-state effect for statutes before the Act of June 25,1948, ch. 646, 62 Stat. 947 (codified as amended at 28 U.S.C. §1738 (2000)).
285. Act of March 27,1804, ch. LVI, 2 Stat. 298.
286. See 2 FARRAND, RECORDS, supra note 166, at 447 (Madison).
287. Id. at 448.
288. Id.
289. See, e.g., Jackson, supra note 24, at 21 ("In 1927 a committee of distinguished lawyers made an exceptionally able report to the American Bar Association including a proposed bill to carry out Madison's idea, and the Association recommended its adoption by Congress. The reform seems to have died a-borning.");
290. Note, Constitutionality of a Uniform Reciprocal Registration of Judgments Statute, 36 N.Y.U. L. REV. 488 (1961).
291. For other discussions of Congress's option to prescribe a system like Madison envisioned, see, for example, Green v. Sarmiento, 10 F. Cas. 1117,1118 (Washington, Circuit Justice, C.C.D. Pa. 1810) (No.5760);
292. and Walter Wheeler Cook, The Powers of Congress Under the Full Faith and Credit Clause, 28 YALE L.J. 421 (1919).
293. See Kenn's Case, (1606) 77 Eng. Rep. 474, 476 (K.B.) ("[S]ententia contra matrimon' nunquam transit in remjudicat'."). This proposition, roughly translated as "a determination controverting a marriage never becomes res judicata," was repeated in a large number of cases spanning centuries.
294. Sarmiento, 10 F. Cas. at 1119-1120
295. See supra note 123 and accompanying text.
296. Ingersoll argued, [I]f it is admitted that by this article, the authors of the system intended to make a Judgment in New Jersey as binding in Pennsylvania, as if it had been obtained in any County of this State, no other form of words, or mode of expression, could have been selected more clearly to convey that intention. Phelps v. Holker, 1 Dall. 261, 263 (Pa. 1788) (emphasis omitted) (quoting the argument of counsel). Not long after Congress enacted its 1790 Act, Massachusetts repealed its contrary statute-which already had been superseded by virtue of the Supremacy Clause. The 1774 Massachusetts act and its 1795 repeal are both referred to in Bissell v. Briggs, 9 Mass. (1 Tyng) 462,465-466 (1813).
297. 1 F. Cas. 1140 (Wilson, Circuit Justice, C.C.D. Pa. 1794) (No.543).
298. Walker v. Witter, (1778) 99 Eng. Rep. 1,4 (K.B.).
299. Armstrong, 1 F. Cas. at 1140.
300. 99 Eng. Rep. at 4, 6.
301. Armstrong, 1 F. Cas. at 1140 ("[W]hatever doubts there might be on the words of the constitution, the act of congress effectually removes them ....").
302. Mills v. Duryee, 11 U.S. (7 Cranch) 481,484 (1813).
303. See THE FEDERALIST NO.42 (James Madison), supra note 5, at 287.
304. Wright v. Tower, Browne Rep. app., at i, xi, xvi (Pa. C.P. Luzerne County 1801). In that case there was a New York judgment against a Pennsylvanian on notes given to a New Yorker for land in Pennsylvania. The Pennsylvanian claimed fraud in the transaction, but he could not have pleaded fraud in the New York action at law because, in New York, fraud was cognizable only in equity in the separate Court of Chancery. The Pennsylvanian therefore pleaded nil debet in the Pennsylvania suit on the New York judgment at law against him, in order to raise the fraud defense he had no opportunity to prove in New York's court of the common law.
305. Hitchcock v. Aicken, 1 Cai. 460, 475-476 (N.Y. Sup. Ct. 1803) (opinion of Radcliff, J.).
306. 243- Justice Kent would become Chief Justice of the New York Supreme Court the next year, and Chancellor ten years later.
307. Hitchcock, 1 Cai. at 481,483 (opinion of Kent, J.). In Taylor v. Bryden, 8 Johns. 173 (N.Y. Sup. Ct. 1811), Justice Kent reaffirmed the prima facie rule of the earlier case, but gave effect to the judgment out of comity because the defendant failed to produce evidence sufficient to impeach it.
308. Bartlet v. Knight, 1 Mass. (1 Will.) 401, 409 (1805) (opinion of Sedgwick, J.). The other members of the court shared Justice Sedgwick's conclusion that the sister-state judgment could be reexamined, just as before the Constitution, taking neither the Clause nor the 1790 Act to displace the prior practice.
309. Hitchcock, 1 Cai. at 464-465 (opinion of Thompson, J.).
310. Curtis v. Gibbs, 2 N.J.L. 399, 403-04 (N.J. 1805) (Pennington, J.). North Carolina judges opted for Justice Wilson's Armstrong view, too, in Wade v. Wade, 1 N.C. 601 (Super. L. & Eq. 1804).
311. For further documentation of this disagreement, see Sachs, supra note 32 (manuscript at 19-47).
312. For a generation, the disagreement was persistent and prominent enough to stir repeated efforts for clarifying legislation. Id. Notably, however, it appears that during the first quarter-century under the Constitution no member of Congress, and no state or federal judge other than New York's Judge Livingston in his idiosyncratic dissent in the 1803 Hitchcock case, see infra notes 269-276, went on record as maintaining that any sister-state effect was mandated by the Constitution's Full Faith and Credit Clause itself.
313. In Peck v. Williamson, 19 F. Cas. 85 (Marshall, Circuit Justice, C.C.D.N.C. 1813) (No.10,896), Chief Justice Marshall alluded to a ruling by Justice Cushing while sitting at circuit in Virginia, but if any report of that ruling was made and survives, I have not found it.
314. See also Bastable v. Wilson, 2 F. Cas. 1012,1012 (C.C.D.C 1803) (No. 1097) (indicating that the "plea of nil debet" was "refused without argument" and that "judgment [was] confessed saving equity").
315. 2 F. Cas. 756 (Washington, Circuit Justice, C.C.D. Va. 1799) (No.959). The opinion in this case has sometimes been misunderstood. Greenleaf pleaded a subsequent discharge under Maryland's bankrupt law to Banks's suit against him in Virginia based on a bond contract, but Banks demurred, having had no notice of the Maryland proceedings and not having been party to them. Justice Washington first determined that, under principles of private international law (apart from admiralty), the Maryland judgment was not one that "can bind persons [like Banks] residing out of that state," for "if a law of a foreign country were to declare that a decision of causes, without notice, should bind everybody, no foreign country would observe it."
316. Id. at 758. Then he inquired what difference, if any, should result from applying the Full Faith and Credit Clause. Focusing first on the opening sentence, Justice Washington observed, "Full faith must be given. Therefore you cannot question the validity of the judgment. This is the construction given in the case of Armstrong v. Carson, in the circuit court of Pennsylvania, by Judge Wilson . . . ."
317. Id. at 759 (citation omitted). Next, however, Justice Washington paraphrased the very language that Justice Wilson had used to redirect inquiry toward the 1790 Act. Justice Wilson had judged sister-state effect according to the "such ... as" rule of that Act (enacted under the second sentence) and had taken the Act-not the Clause-to preclude a plea in Pennsylvania that could not have been made in New Jersey if enforcement of the New Jersey judgment had been sought in New Jersey instead. The same "such ... as" rule would mean that Greenleaf s plea of a discharge in Maryland would be good in Virginia if-but only if-it would have been a good plea in Maryland had Banks sued Greenleaf there. Even though he construed the "full faith and credit" mandate to mean "you cannot question the validity of the judgment," Justice Washington sustained Banks' demurrer. That was because he distinguished between the "validity" of a duly proven sister-state judgment (that is, its authenticity and accuracy as evidence of what the sister-state court had done) and its effect (that is, its legally obligatory force, if any). The first sentence of the Full Faith and Credit Clause concerned the former, but the second sentence of the Clause addressed the latter: it empowered Congress to go beyond questions of authenticity and accuracy to prescribe sister-state effect-including whether and to what extent the judgment should be binding out-of-state.
318. For this, the 1790 Act prescribed the "such ... as" rule, which contemplated no greater effect elsewhere than at home; and therefore, if the judgment as rendered fell short of international law standards (for example, if it was entered without opportunity to defend), that defect would follow it everywhere. This had not been an issue in Armstrong, but it was the basis of decision in Banks. Relying on the international law principle he had cited, id. at 758, Justice Washington said that "[t]his cannot be considered as a judgment... which can bind persons residing out of that state" who were not parties, had not received notice, and had not submitted to the jurisdiction.
319. Id. In effect, he held the first forum's jurisdiction (in the international law sense) prerequisite to sister-state effect under the 1790 Act. Ralph Whitten evidently misunderstood Washington's use of the word "validity," taking Banks v. Greenleaf 'to hold that the Full Faith and Credit Clause itself requires giving sister-state judgments some "nonevidentiary effect."
320. Whitten, supra note 30, at 298.
321. Whitten therefore concluded that Justice Washington's later opinion in Green v. Sarmiento, 10 F. Cas. 1117 (Washington, Circuit Justice, CCD. Pa. 1810) (No. 5760), applied a contrary rule. It did not; however, Sarmiento did make Justice Washington's position clearer.
322. 10 F. Cas. 1117. Nadelmann has dated the decision to April 1811.
323. See Nadelmann, supra note 30, at 66.
324. Sarmiento, 10 F. Cas. at 1118.
325. Id. Justice Washington also maintained that Congress, if it chose, could render state judgments directly enforceable out-of-state: Why ought not an execution to issue, upon a judgment rendered in one state, against the person and effects of the defendant, found in any other? It is unnecessary, however, to moot the policy of the measure, which must rest with congress in its wisdom to adopt, if it should seem right to that body to do so. Id. at 1120. This is what Madison had suggested at the Philadelphia Convention.
326. See supra text accompanying notes 226-229.
327. 254- Id. at 1119. Justice Washington therefore concluded that, in saying that authenticated records and proceedings "shall have such faith and credit given to them ... as ... in the courts of the state from whence . . . taken," the 1790 Act must be understood not as requiring that "full faith and credit should be given to them as a matter of evidence," but rather as contemplating "one of the two objects, referred to [Congress] by the constitution"-to wit, manner of proof, and effect. Because the manner of proof was provided for in the first sentence of the 1790 Act, the Justice reasoned, the conclusion is inevitable, that this [second] sentence [of the Act] was intended, and could only have been intended, to declare the force and effect to be given to records and judicial proceedings, when so authenticated. Under this view of the subject, the power to limit the effect of such judicial proceedings, is undoubted;
328. and it was wisely left to the discretion of congress, to regulate the degree of force to be given to such [sister-state] proceedings. Id. at 1119;
329. see also Field v. Gibbs, 9 F. Cas. 15,16 (Washington, Circuit Justice, C.C.D.N.J. 1815) (No.4766) ("The constitution declares, that they shall be entitled to 'full faith and credit,' and consequently, no law was necessary or would have been proper, to make them evidence. The law therefore in using the words, 'full faith and credit,' must have meant to express the effect, to which they were to be entitled in other states."). Incidentally, notice Justice Washington's - or the reporter's - mistake in adding the adjective "full" to the words used in the statute.
330. Sarmiento, 10 F. Cas. at 1119. These examples, Justice Washington explained, "and a variety of other cases, which might be put, show the wisdom of the legislature, in giving to such judgments, only such credit, as they possess in the state where they were rendered." Id. at 1120. Justice Washington used appositive phrases to emphasize the choice that Congress had made in prescribing the "such ... as" rule: "as much faith and credit... as," and "the same faith and credit... which ...."
331. Id. The appositive "same ... as" was used again in Short v. Wilkinson, 22 F. Cas. 15,15 (No.12,810) (C.C.D.C. 1811) (per curiam).
332. Sarmiento, 10 F. Cas. at 1120.
333. JOSEPH STORY, A SELECTION OF PLEADINGS IN CIVIL ACTIONS (Salem, Barnard B. Macanulty 1805).
334. Before publication, Story's Pleadings had been "perused by several learned Counsel," id. Preface at v n.»; and some had made comments which, Justice Story said, he had "quoted between commas without any particular authority being adduced."
335. See id. at vi.
336. Id. at 296. "Doug. 4, 5" is a reference to Lord Chief Justice Mansfield's opinion in Walker v. Witter, (1778) 99 Eng. Rep. 1,4-6 (K.B.), which was first published on pages 1 through 7 of the first volume of Douglas's Reports.
337. STORY, supra note 257, at 296.
338. Id. at 135 (falling under the heading of "FORMER JUDGMENT," in the section on "ASSUMPSIT - INBAR").
339. Peck v. Williamson, 19 F. Cas. 85, 85 (Marshall, Circuit Justice, C.C.D.N.C. 1813) (No.10,896).
340. See supra text accompanying notes 241-242.
341. Peck, 19 F. Cas. at 85.
342. Id.
343. Id.
344. Hammon & Hattaway v. Smith, 3 S.CL. (1 Brev.) 110,114 (1802) (opinion of Johnson, J.).
345. Judge Johnson said that a rule of state practice precluded pleading nul tiel record to a sisterstate judgment, and allowed only nil debet, because on replication to a nul tiel record plea "the original record ought to be inspected; but [with foreign or sister-state judgments] this is impossible. An exemplification of our own judgments is not evidence in such cases, and therefore an exemplification of the judgment of a sister State, certainly ought not to be." Id. at 114.
346. Hitchcock v. Aicken, 1 Cai. 460, 466 (N.Y. Sup. Ct. 1803) (opinion of Livingston, J.);
347. see supra notes 242, 244,246.
348. See supra note 32.
349. Hitchcock, 1 Cai. at 469.
350. Id.
351. Id. at 471.
352. See infra text accompanying notes 302-313.
353. Hitchcock, 1 Cai. at 468.
354. See supra text accompanying notes 185-201.
355. Peck v. Williamson, 19 F. Cas. 85, 85 (Marshall, Circuit Justice, C.C.D.N.C. 1813) (No.10,896).
356. 11 U.S. (7 Cranch) 481 (1813).
357. See Green v. Sarmiento, 10 F. Cas. 1117,1118 (Washington, Circuit Justice, C.C.D. Pa. 1810) (No.5760);
358. Banks v. Greenleaf, 2 F. Cas. 756 (Washington, Circuit Justice, C.C.D. Va. 1799) (No. 959). Just as Justice Washington's opinion in Banks was misunderstood by Whitten, see supra note 250, so his opinion in Sarmiento had been misunderstood by Nadelmann. Justice Washington took considerable care repeatedly to distinguish between the "full faith and credit" to be given "as a matter of evidence," on the one hand, and "the force and effect to be given," on the other;
359. and he said the Constitution only "pronounced upon" the former, while the latter was "wisely left to the discretion of congress." Green, 10 F. Cas. at 1119;
360. see supra notes 250-253 and accompanying text. Yet Nadelmann characterized Justice Washington as "on record for deducing the conclusive effect from the Constitution," and therefore was puzzled "how a majority could have been obtained" two years later, in Mills v. Duryee, "for resting the [Supreme Court's] decision on the Act of Congress rather than on the Constitution." Nadelmann, supra note 30, at 68.
361. Indeed, Nadelmann actually faulted the Supreme Court's Mills v. Duryee opinion for comparing so poorly with Washington's "elaborate opinion" in Sarmiento, id. at 66, which Nadelmann regarded as holding to the contrary,
362. id. at 68,
363. although it certainly did not. Nadelmann's mistaken impression that the phrase "faith and credit" was "a term of art," a "formula" having a fixed meaning for centuries, id. at 44, overlooks Justice Washington's actual argument, which used that phrase with its very different (although demonstrably far more common) evidentiary meaning.
364. See Armstrong v. Carson, 1 F. Cas. 1140 (Wilson, Circuit Justice, C.C.D. Pa. 1794) (No.543) ;
365. supra text accompanying note 236.
366. Justice Story would propound that contrary view in his Commentaries on the Constitution. See infra text accompanying notes 302-313.
367. It is perhaps conceivable that Justice Livingston silently retained his idiosyncratic view of the Clause, and reached the same result disregarding the statute. Nothing indicates, however, that he was less than fully persuaded by Justice Story's opinion for the Court; indeed, Chief Justice Marshall had intimated in Peck v. Williamson, 19 F. Cas. 85 (Marshall, Circuit Justice, C.C.D.N.C 1813) (No.10,896), that Justice Livingston had already changed his view. As to Chief Justice Marshall, we know that upon deliberation with his colleagues he abandoned his own earlier view-an illustration of his often overlooked amenability to persuasion by arguments better reasoned than his own. Chief Justice Marshall himself wrote for the Court five years later reaffirming Mills in Hampton v. McConnel, 16 U.S. (3 Wheat.) 234 (1818), again with the silent acquiescence (and seeming concurrence) of Justice Livingston.
368. Mills v. Duryee, 11 U.S. (7 Cranch) 481, 485 (1813). The second forum in Mills was actually not a state-it was the District of Columbia. The 1790 Act had made its "such ... as" rule applicable not only to states (by virtue of its power under the Full Faith and Credit Clause), but to "every Court within the United States,"
369. supra note 217, supported by Congress's power of "Legislation in all Cases whatsoever" regarding the Federal District, U.S. CONST. art. I, §8, cl. 17.
370. 11 U.S. (7 Cranch) 481, 485 (1813). Justice Story observed that the defendant's view would render the Full Faith and Credit Clause "utterly unimportant and illusory," because "[t]he common law would give such judgments precisely the same effect."
371. Id. This was the same point James Wilson had made at the Constitutional Convention, saying that "if 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."
372. 2 FARRAND, RECORDS, supra note 166, at 488 (Madison).
373. For further discussion of Justice Wilson's view, see supra text accompanying notes 234-236.
374. See supra text accompanying notes 269-274.
375. Milk, 11 U.S. (7 Cranch) at 484.
376. Id.
377. Id.
378. Id.
379. For international cases, American courts continued applying the prima facie rule. Increasingly during the nineteenth century, however, habituation to the more generous rule statutorily prescribed for interstate cases (and growing familiarity with foreign institutions) encouraged departures from the prima facie rule, and a pronounced "tendency ... to constantly narrow the differences between [sister-state] judgments and those of wholly foreign states by raising the latter to [the] same plane of recognition" was noted. 3 A.C. FREEMAN, A TREATISE OF THE LAW OF JUDGMENTS §1482 (Edward W. Tuttle ed., 5th ed. 1925).
380. See, e.g., Commonwealth v. Green, 17 Mass. (17 Tyng) 515, 545-46 (1822);
381. Bissell v. Briggs, 9 Mass. (8 Tyng) 462 (1813);
382. Robinson v. Prescott, 4 N.H. 450 (1828);
383. Pawling v. Willson, 13 Johns. 192 (N.Y. Sup. Ct. 1816);
384. Buford v. Buford, 18 Va. (4 Munf.) 241 (1814);
385. see also 2 HENRY CAMPBELL BLACK, A TREATISE ON THE LAW OF JUDGMENTS, INCLUDING THE DOCTRINE OF RES JUDICATA §856, at 1027 (1st ed. 1891).
386. THE FEDERALIST NO.42 (James Madison).
387. Sachs, supra note 32 (manuscript at 26-72).
388. Hampton v. McConnel, 16 U.S. (3 Wheat.) 234, 235 (1818). No one on the Court dissented even though Justice Johnson, who had dissented alone in Mills, was still sitting.
389. 38 U.S. (13 Pet.) 312 (1839).
390. Id. at 324, 326.
391. Id. at 325.
392. Id. at 326.
393. Id. at 324-325
394. Id. at 325. Explaining further, the Court said that "under the first section of the fourth article of the Constitution [that is, the Clause itself], judgments out of the state in which they are rendered, are only evidence in a sister state that the subject matter of the suit has become a debt of record [where rendered]."
395. Id. at 325. The Court also expressed agreement with the statement in a Georgia case that the Full Faith and Credit Clause "only provides, that as a matter of evidence it shall be entitled to full faith and credit."
396. Id. at 329. Justice Jackson and Nadelmann both misconstrued M'Elmoyle by supposing (as modern orthodoxy requires) that the 1839 Court instead was using the "faith and credit" phrase in the Constitution to mean sister-state effect.
397. See Jackson, supra note 24, at 11;
398. Nadelmann, supra note 30, at 74.
399. See, e.g., Christmas v. Russell, 72 U.S. (5 Wall.) 290, 301-02 (1866) (reciting that the Clause empowered Congress, whose Act in turn prescribed effect) ;
400. see also D'Arcy v. Ketchum, 52 U.S. (11 How.) 165 (1850) (attributing sister-state effect to intent of Congress with no suggestion that the Clause itself required such effect).
401. See supra notes 269-276.
402. 9 Mass. (8 Tyng) 462 (1813).
403. See Bartlet v. Knight, 1 Mass. (1 Will.) 401 (1805).
404. Nine years later, the next Massachusetts Chief Justice, Isaac Parker, wrote in Commonwealth v. Green, 17 Mass. (17 Tyng) 515, 545 (1822), that while Mills v. Duryee must be acknowledged, "[i]n this commonwealth the construction of the constitution, and of the act of congress, must be considered as definitively settled in the case of Bissell v. Briggs."
405. See 1 CHARLES WARREN, HISTORY OF THE HARVARD LAW SCHOOL AND OF EARLY LEGAL CONDITIONS IN AMERICA 258-259 (1908).
406. 3 STORY, supra note 109, §§1306-1307, at 182.
407. See, e.g., JOSEPH STORY, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES 137 (1840) (ignoring the prior year's M'Elmoyle opinion and reiterating instead the "sounder interpretation"-that Congress has power only to "prescribe the mode of authentication, and the effect of such authentication, when duly made"). Also in the 1841 second edition of his Commentaries on the Conflict of Laws, Justice Story expressed the disagreement with his M'Elmoyle colleagues that he had declined to give voice in the report of that case, asserting that the judgment at issue came "within the clause of the constitution, which declares that full faith, and credit, and effect shall be given," and omitting any mention of the 1790 Act.
408. JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS §582a, at 841 (2d ed. 1841). In addition, the same year that his Commentaries on the Constitution were published, Story prepared an "Abridgement" of them "for the use of Colleges and High-schools," indulging the hope, that even in this reduced form the reasoning in favour of every clause of the constitution will appear satisfactory and conclusive; and that the youth of my country will learn to venerate and admire it as the only solid foundation, on which to rest our national union, prosperity, and glory.
409. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, ABRIDGED BY THE AUTHOR, at vii-viii (Ronald D. Rotunda & John E. Nowak eds., 1987) (1833). In his very brief treatment of the topic in this Abridgement, Justice Story repeated his assertion that the full faith and credit provisions in both the Articles of Confederation and the Constitution were "intended to give the same conclusive effect to judgments of all the states, so as to promote uniformity, as well as certainty, in the rule among them," and he made no mention the 1790 statute or of the reasoning the Court in Mills v. Duryee had actually employed.
410. Id. §660, at 471-472
411. See supra notes 302-305 and accompanying text.
412. Mills, M'Elmoyle, and D'Arcy all had attributed the replication rule solely to the 1790 Act. Early in the process of change, the Clause and Act were treated as imposing that rule together.
413. See, e.g., Thompson v. Whitman, 85 U.S. (18 Wall.) 457, 462, 465 (1873) (stating that the Act, "in connection with the constitutional provision which it was intended to carry out," required the same effect elsewhere as where rendered, "the constitutional provision and act of Congress giving full faith, credit, and effect"). In time, however, the replication rule came to be attributed to the Clause alone.
414. See, e.g., Fauntleroy v. Lum, 210 U.S. 230 (1908) (describing the rule as a constitutional one merely "confirmed by the Act of May 26, 1790"). Even the Fauntleroy dissent conceived the issue as whether the Clause itself produced the effect at issue, and never mentioned the statute.
415. Id. at 244 (White, J., dissenting).
416. See 3 STORY, supra note 109, §1307, at 182 ("[I]t is not, practically speaking, of much importance, which interpretation prevails; since each admits the competency of congress to declare the effect of judgments, when duly authenticated; so always, that full faith and credit are given to them; and congress by their legislation have already carried into operation the objects of the clause.").
417. See JOSEPH STORY, COMMENTARIES ON THE CONFLICT OF LAWS §§7-9,18,20,25 (1834).
418. Justice Story's discussion in his Commentaries on the Constitution mentioned statutes only with regard to "verity" (authenticity and proof), and never with regard to extra-state effect. 3 STORY, supra note 109, §§1303-1304, at 178-80. In his Commentaries on the Conflict of Laws, he treated the Full Faith and Credit Clause only in a chapter entitled "Foreign Judgments."
419. See STORY, supra note 312, §337, at 491.
420. Compare Act of June 25, 1948, ch. 646, 62 Stat. 947 (codified at 28 U.S.C. §1738 (2000)), with Act of May 26,1790, ch. XI, 1 Stat. 122, and Act of Mar. 27,1804, ch. LVI, 2 Stat. 298.
421. See supra notes 13-20,24 and accompanying text.
422. E.g., Bradford Electric Light Co. v. Clapper, 286 U.S. 145 (1932);
423. Chi. & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887) ;
424. see supra text accompanying note 14;
425. cases cited supra notes 19-20 and accompanying text.
426. E.g., COOLEY, supra note 15;
427. George P. Costigan, Jr., The History of the Adoption of Section I of Article TV of the United States Constitution and a Consideration of the Effect on Judgments of That Section and of Federal Legislation, 4 COLUM. L. REV. 470, 477, 478 n.2 (1904) (asserting that "while the proposition has never been expressly decided by the Supreme Court of the United States, the dicta are all to the effect that the first sentence of the full faith and credit clause is self-executing" as to effect, and that "[t]here seems to be no reason to doubt that" even outside the terms of the federal statute "the sister-state judgment would be given the full benefit of the constitutional provision");
428. Jackson, supra note 24, at 11-12 ("Congress has provided no guidance as to when extraterritorial recognition shall be accorded either to a state's statutes or to its common law. Since the Constitutional provision must now be regarded as self-executing [as to effect], however, the courts have been obliged to solve issues under it as best they could.... The Constitution by use of the term 'public acts' clearly includes statutes. But it makes no mention of decisional law.... [T]he Court has so acted and talked that we may deal with this ... on the assumption that what is entitled in proper cases to credit is the law of a state by whatever source declared.").
429. 1948 Judicial Code, ch. 646, 62 Stat. 947 (codified as amended at 28 U.S.C. §1738 (2000)).
430. Willis L.M. Reese, Full Faith and Credit to Statutes: The Defense of Public Policy, 19 U. CHI. L. REV. 339,343 (1952).
431. BRAINERD CURRIE, The Constitution and the Choice of Law: Governmental Interests and the Judicial Function, in SELECTED ESSAYS ON THE CONFLICT OF LAWS 188, 200 (1963).
432. Whitten, State Choice of Law, supra note 108, at 62.
433. See Ala. Packers Ass'n v. Indus. Accident Comm'n, 294 U.S. 532, 547 (1935) (Stone, J.) ("A rigid and literal enforcement of the full faith and credit clause... would lead to the absurd result that, wherever the conflict arises, the statute of each state must be enforced in the courts of the other, but cannot be in its own.").
434. The accelerating flight from Bradford Electric Light Co. v. Clapper, 286 U.S. 145 (1932), so far has included the following: Allstate Insurance Co. v. Hague, 449 U.S. 302, 307 (1981), which declared that typically a given set of facts "may justify, in constitutional terms, application of the law of more than one jurisdiction";
435. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 822 (1985), which said that "[n]either the Due Process Clause nor the Full Faith and Credit Clause requires [a state] to substitute for its own [laws], applicable to persons and events within it, the conflicting statute of another state";
436. Sun Oil Co. v. Wortman, 486 U.S. 717, 722 (1988), which declared that "[t]he Full Faith and Credit Clause does not compel 'a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate'";
437. Baker v. General Motors Corp., 522 U.S. 222, 233 (1998), which held that "[a] court may be guided by the forum State's 'public policy' in determining the law applicable to a controversy";
438. and Franchise Tax Board v. Hyatt, 538 U.S. 488, 494 (2003), which said the Constitution "does not compel" a state to substitute the statute of any other state for its own where it has legislative jurisdiction. In the words of Justice Scalia for the Court in the Sun Oil case, today's Justices firmly refuse to "embark upon the enterprise of constitutionalizing choice-of-law rules." 486 U.S. at 727-728
439. E.g., Walter W. Cook, supra note 229;
440. Edward S. Corwin, supra note 200;
441. Jackson, supra note 24;
442. see also Larry Kramer, On the Need for a Uniform Choice of Law Code, 89 MICH. L. REV. 2134 (1991) (calling for efforts through the National Conference of Commissioners on Uniform State Laws).
443. 28 U.S.C. §738A (2000).
444. 28 U.S.C. §1738B;
445. see also Violent Crime Control and Law Enforcement Act of 1994, 18 U.S.C. §2265.
446. Defense of Marriage Act (DOMA) §2(a), 28 U.S.C. §1738C
447. DOMA passed by margins of more than five to one (342 to 67) in the House, and six to one in the Senate (85 to 14).
448. See Final Vote Results for Role Call 316, http://clerk.house.gov/evs/ 1996/roll316.xml (last visited May 1, 2009);
449. Roll Call Vote http://www.senate.gov/legislative/LIS/roll-call-lists/ roll-call-vote-cfm.cfm?congress=io4 &session=2&vote=00280 (last visited May 1, 2009).
450. DOMA was signed into law by President William J. Clinton (who, at the time, was in his fourth year as President and anticipating a reelection campaign).
451. ANDREW KOPPELMAN, SAME SEX, DIFFERENT STATES: WHEN SAME-SEX MARRIAGES CROSS STATE LINES (2006).