Article IV, Section 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.

Before the Constitution’s ratification, English and colonial courts struggled with how to treat judgments from other sovereigns’ courts.1 While some courts held that judgments from other jurisdictions should have conclusive effect in other courts, others held that such judgments were only presumptively binding.2 The Articles of Confederation attempted to address this uncertainty by providing that “[f]ull faith and credit shall be given in each of these states to the records, acts, and judicial proceedings of the courts and magistrates of every other state.” 3 Nevertheless, it remained unclear whether the Articles of Confederation merely required courts to accept other states’ records as evidence, or if it instead required courts to afford such records conclusive effect.4

When the Framers decided to include a full faith and credit provision in the Constitution, they debated whether and how it should differ from the Articles of Confederation. For instance, whereas the Articles only granted full faith and credit to the “records, acts, and judicial proceedings” of “courts and magistrates,” 5 the Framers decided to extend full faith and credit to legislative acts as well.6

The Framers also debated whether to empower Congress to pass legislation governing the authentication, execution, and effect of out-of-state acts.7 While some Framers advocated giving such acts, records, and proceedings binding effect as an unalterable constitutional command,8 others supported letting Congress prescribe the effect that acts, records, and proceedings would have in other states.9 The Framers ultimately chose the latter option.10 The Framers also debated the scope of Congress’s power to pass such laws. Some Framers proposed to authorize Congress to determine the effect of out-of-state judgments only, fearing that allowing Congress to prescribe the effect of out-of-state statutes would usurp states’ authority.11 Others argued that unless Congress could prescribe the effect of other states’ nonjudicial acts, the Full Faith and Credit Clause would have no meaningful effect.12 Over several dissenting votes, the Framers authorized Congress to prescribe the effect of states’ legislative acts as well as states’ judgments.13

The Framers also considered whether to require Congress to legislate regarding the authentication and effect of states’ acts, records, and proceedings, or whether to merely allow Congress to pass such laws.14 The Framers ultimately selected the latter option, though the Convention records do not explicitly specify why the Framers did so.15

Finally, the Framers deliberated whether to require states to give full faith and credit to other states’ acts, records, and proceedings versus encouraging states to do so.16 The Framers ultimately selected the former option.17 The Convention records do not reveal why the Framers made that choice, and scholars have debated whether the Framers intended that choice to have any substantive effect.18

The Full Faith and Credit Clause provoked little to no opposition or discussion during the ratification debates.19 In the Federalist Papers, James Madison described the Clause’s grant of congressional authority to legislate regarding out-of-state acts, records, and judicial proceedings’ authentication and effect as “an evident and valuable improvement on” the Articles of Confederation’s full faith and credit provision.20 Madison thus maintained that Congress’s authority under the Clause would amount to “a very convenient instrument of justice” that would “be particularly beneficial on the borders of contiguous States.” 21

Footnotes

1

See, e.g., Thompson v. Whitman, 85 U.S. (8 Wall.) 457, 465 (1873) (describing “the uncertainty and confusion that prevailed in England and this country as to the credit and effect which should be given to foreign judgments, some courts holding that they should be [c]onclusive of the matters adjudged, and others that they should be regarded as only prima facie binding” ); M’Elmoyle v. Cohen, 38 U.S. (13 Pet.) 312, 325 (1839) ( “[W]e need not doubt what the framers of the Constitution intended to accomplish by [the Full Faith and Credit Clause], if we reflect how unsettled the doctrine was upon the effect of foreign judgments, or the effect, rei judicatae, throughout Europe, in England, and in these States, when our first confederation was formed.” ).

2

Thompson, 85 U.S. (8 Wall.) at 465.

3

Articles of Confederation, art. IV, § 3.

4

See, e.g., Stephen E. Sachs, Full Faith and Credit in the Early Congress, 95 Va. L. Rev. 1201, 1224–25 (2009) ( “The divergence between ‘authentication’ and ‘effect’ interpretations of the [Articles of] Confederation’s [Full Faith and Credit] Clause soon appeared in contemporary state court decisions.” ); Ralph U. Whitten, The Original Understanding of the Full Faith and Credit Clause and the Defense of Marriage Act, 32 Creighton L. Rev. 255, 282–88 (1998) (analyzing the “five reported decisions interpreting the Full Faith and Credit Clause of the Articles of Confederation” and concluding that “[t]he debate in the cases interpreting the Articles of Confederation Clause concerned whether the language of the Clause should be given an evidentiary meaning or should be understood as elevating state judgments to the status of domestic judgments in other states” ). See also The Federalist No. 42 (James Madison) (describing the Articles of Confederation’s full faith and credit provision as “extremely indeterminate” ); Charles M. Yablon, Madison’s Full Faith and Credit Clause: A Historical Analysis, 33 Cardozo L. Rev. 125, 140 (2011) (maintaining that “the faith and credit clause in the Articles of Confederation had no clear and determinate meaning” ).

5

Articles of Confederation, art. IV, § 3 (emphasis added).

6

Compare 2 The Records of the Federal Convention of 1787, at 188 (Max Farrand ed., 1911) [hereinafter Farrand’s Records] (Committee of Detail draft proposing that “[f]ull faith shall be given in each State to the acts of the Legislatures, and to the records and judicial proceedings of the Courts and Magistrates of every other State” ) (emphasis added), with id. at 447 (reflecting that Hugh Williamson “moved to substitute in place of” the Committee of Detail’s full faith and credit provision “the words of the Articles of Confederation on the same subject” because “[h]e did (not) understand precisely the meaning of the article” ). See also id. (noting that James Wilson and William Samuel Johnson “supposed the meaning” of the Committee of Detail’s provision “to be that Judgments in one State should be the ground of actions in other States, [and] that acts of the Legislatures should be included, for the sake of Acts of insolvency” ). See also 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.” ) (emphasis added).

7

See 2 Farrand’s Records, supra note 6, at 448.

8

See 2 Farrand’s Records, supra note 6, at 448 ( “Mr. Randolph said there was no instance of one nation executing judgments of the Courts of another nation. He moved the following proposition. ‘Whenever the Act of any State, whether Legislative Executive or Judiciary shall be attested & exemplified under the seal thereof, such attestation and exemplification, shall be deemed in other States as full proof of the existence of that act—and its operation shall be binding in every other State, in all cases to which it may relate, and which are within the cognizance and jurisdiction of the State, wherein the said act was done.’” ).

9

See 2 Farrand’s Records, supra note 6, at 448 (noting that James Madison “wished the [federal] Legislature might be authorized to provide for the execution of Judgments in other States, under such regulations as might be expedient” ); 2 Farrand’s Records, supra note 6, at 448 (Gouverneur Morris’s proposal to require Congress to “determine the proof and effect” of out-of-state “acts, records, and proceedings” ).

10

See 2 Farrand’s Records, supra note 6, at 601; U.S. Const. art. IV, § 1 ( “[T]he Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.” ).

11

See 2 Farrand’s Records, supra note 6, at 485 (September 1, 1787 draft providing that “the Legislature shall by general laws prescribe the manner in which such acts, Records, & proceedings shall be proved, and the effect which Judgments obtained in one State, shall have in another” ) (emphasis added); 2 Farrand’s Records, supra note 6, at 488–89 ( “Mr. Randolph considered it as strengthening the general objection agst. the plan, that its definition of the powers of the Government was so loose as to give it opportunities of usurping all the State powers. He was for not going farther than the Report, which enables the Legislature to provide for the effect of Judgments.” ).

12

See 2 Farrand’s Records, supra note 6, at 488 ( “Mr. Wilson remarked, 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.” ).

13

See 2 Farrand’s Records, supra note 6, at 488 ( “Mr. Govr. Morris moved to amend the Report concerning the respect to be paid to Acts Records &c of one State, in other States (see Sepr. 1.) by striking out ‘judgments obtained in one State shall have in another’ and to insert the word ‘thereof’ after the word ‘effect[.]’” ); 2 Farrand’s Records, supra note 6, at 489 ( “On the amendment as moved by Mr[.] Govr. Morris[:] Mas. ay. Ct ay. N. J. ay. Pa. ay. Md. no. Va no. N. C. ay. S. C. ay. Geo. no. [Ayes—6; noes—3.]” ). See also 2 Farrand’s Records, supra note 6, at 488 ( “Docr. Johnson thought the amendment as worded would authorize the Genl. Legislature to declare the effect of Legislative acts of one State, in another State.” ).

14

Compare 2 Farrand’s Records, supra note 6, at 485 ( “[T]he Legislature shall by general laws prescribe the manner in which such acts, Records, & proceedings shall be proved . . .” ) (emphasis added), with 2 Farrand’s Records, supra note 6, at 489 (James Madison’s motion to replace “shall” with “may.” ).

15

See 2 Farrand’s Records, supra note 6, at 489 ( “On motion of Mr. Madison . . . ‘shall’ between ‘Legislature’ & ‘by general laws’ [was] struck out, and ‘may’ inserted. . . .” ); U.S. Const. art. IV, § 1 ( “[T]he Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” ) (emphasis added). But see David E. Engdahl, The Classic Rule of Faith and Credit, 118 Yale L.J. 1584, 1626–27 (2009) (suggesting that James Madison proposed this change to address Edmund Randolph’s concern that the Full Faith and Credit Clause gave Congress too much power).

16

Compare 2 Farrand’s Records, supra note 6, at 485 (draft providing that “Full faith and credit ought to be given in each State to the public acts, records, and Judicial proceedings of every other State. . . .” ) (emphasis added), with 2 Farrand’s Records, supra note 6, at 489 (James Madison’s motion to replace “ought to” with “shall” ).

17

See 2 Farrand’s Records, supra note 6, at 489 ( “On motion of Mr. Madison, ‘ought to’ was struck out, and ‘shall’ inserted. . . .” ); 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.” ) (emphasis added).

18

See 2 Farrand’s Records, supra note 6, at 489.

19

See, e.g., James D. Sumner, Jr., The Full-Faith-and-Credit Clause—Its History and Purpose, 34 Or. L. Rev. 224, 235 (1955) ( “Little attention was given the full-faith-and-credit provision before and during ratification . . . It is interesting to note that not a single debate arose on this provision of the Constitution in the ratifying conventions of the various states.” ); Max Radin, The Authenticated Full Faith and Credit Clause: Its History, 39 Ill. L. Rev. 1, 9 (1944) ( “There is almost no reference to [the Full Faith and Credit Clause] in the debates in the various states on adopting the Constitution.” ).

20

The Federalist No. 42 (James Madison).

21

Id.