Full Faith and Credit Under the Constitution

The Full Faith and Credit clause states that the courts must honor out-of-state laws, regulations, and judgments. Thus, if a couple is married under the laws of one state, the marriage must be given full faith and credit in all other states. It was intended to prevent states from overruling the laws of other states when they come in contact with the laws of that state.

What Does the Full Faith and Credit Clause Say?

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.

What Does "Full Faith and Credit" Mean?

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

The historical background of the Full Faith and Credit Clause is furnished by the branch of private law that is variously termed "private international law," "conflict of laws", and "comity." This branch comprises a body of rules, based largely on the writings of jurists and judicial decisions, in accordance with which the courts of one country, or "jurisdiction," will ordinarily, in the absence of a local policy to the contrary, extend recognition and enforcement to rights claimed by individuals by virtue of the laws or judicial decisions of another country or "jurisdiction."

The most frequently applied examples of these rules include the following:

  • A marriage that is good in the country where performed (lex loci) is good elsewhere; 
  • Contracts are to be interpreted in accordance with the laws of the country where entered into (lex loci contractus) unless the parties clearly intended otherwise;
  • Immovables may be disposed of only in accordance with the law of the country where situated (lex rei sitae);1 
  • Chattels adhere to the person of their owner and hence are disposable by him, even when located elsewhere, in accordance with the law of his domicile (lex domicilii); 
  • Regardless of where the cause arose, the courts of any country where personal service of the defendant can be effected will take jurisdiction of certain types of personal actions—hence termed "transitory"—and accord such remedy as the lex fori affords. 

Still other rules, of first importance in the present connection, determine the recognition that the judgments of the courts of one country shall receive from those of another country.

So, even had the states of the Union remained in a mutual relationship of entire independence, private claims originating in one often would have been assured recognition and enforcement in the others. The Framers felt, however, that the rules of private international law should not be left among the states altogether on a basis of comity and hence subject always to the overruling local policy of the lex fori, but ought to be in some measure at least placed on the higher plane of constitutional obligation. In fulfillment of this intent, the Full Faith and Credit Clause was inserted, and Congress was empowered to enact supplementary and enforcing legislation.2

How Is the Full Faith and Credit Clause Enforced?

Under the present system, suit ordinarily must be brought where the defendant, the alleged wrongdoer, resides, which means generally where no part of the transaction giving rise to the action took place. What could be more irrational? "Granted that no state can of its own volition make its process run beyond its borders . . . is it unreasonable that the United States should by federal action be made a unit in the manner suggested?"3

Indeed, there are few clauses of the Constitution, the merely literal possibilities of which have been so little developed as the Full Faith and Credit Clause. Congress has the power under the clause to decree the effect that the statutes of one state shall have in other states. This being so, it does not seem extravagant to argue that Congress may under the clause describe a certain type of divorce and say that it shall be granted recognition throughout the Union and that no other kind shall. Or to speak in more general terms, Congress has under the clause power to enact standards whereby uniformity of state legislation may be secured as to almost any matter in connection with which interstate recognition of private rights would be useful and valuable.

Doubtless Congress, by virtue of its powers in the field of foreign relations, might also lay down a mandatory rule regarding recognition of foreign judgments in every court of the United States. At present, the duty to recognize judgments even in national courts rests only on comity and is qualified in the judgment of the Supreme Court, by a strict rule of parity.4

Footnotes

  1. Clark v. Graham, 19 U.S. (6 Wheat.) 577 (1821), is an early case in which the Supreme Court enforced this rule.
  2. Congressional legislation under the Full Faith and Credit Clause, insofar as it is pertinent to adjudication under the clause, is today embraced in 28 U.S.C. §§ 1738-1739. See also 28 U.S.C. §§ 1740-1742.
  3. Cook, The Power of Congress Under the Full Faith and Credit Clause, 28 Yale L.J. 421, 430 (1919).
  4. No right, privilege, or immunity is conferred by the Constitution in respect to judgments of foreign states and nations. Aetna Life Ins. Co. v. Tremblay, 223 U.S. 185 (1912)See also Hilton v. Guyot, 159 U.S. 113, 234 (1895), where a French judgment offered in defense was held not a bar to the suit. Four Justices dissented on the ground that "the application of the doctrine of res judicata does not rest in discretion; and it is for the Government, and not for its courts, to adopt the principle of retorsion, if deemed under any circumstances desirable or necessary." At the same sitting of the Court, an action in a United States circuit court on a Canadian judgment was sustained on the same ground of reciprocity, Ritchie v. McMullen, 159 U.S. 235 (1895)See also Ingenohl v. Olsen & Co., 273 U.S. 541 (1927), where a decision of the Supreme Court of the Philippine Islands was reversed for refusal to enforce a judgment of the Supreme Court of the British colony of Hong Kong, which was rendered "after a fair trial by a court having jurisdiction of the parties." Another instance of international cooperation in the judicial field is furnished by letters rogatory. See 28 U.S.C. § 1781. Several States have similar provisions, 2 J. Moore, Digest of International Law 108–109 (1906).
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