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Full Faith and Credit

FULL FAITH AND CREDIT

The full faith and credit clause of the Constitution (Article IV, section 1) provides that: "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."

The first sentence of the clause closely tracked language contained in Article IV of the articles of confederation, the precursor of our present Constitution. The second sentence, which authorizes Congress to enact implementing legislation, was new. "Faith and credit" was a familiar term in English law where it had been used on occasion for some centuries to describe the respect owed to judgments and other public records. Its precise meaning, however, was obscure; it was not clear whether it was concerned only with the admission of public records, including judgments, into evidence or whether it was intended to deal likewise with the effect as res judicata to which a judgment was entitled. There is similar uncertainty with respect to the meaning which the term was intended to bear in the Articles of Confederation.

The subject of full faith and credit evoked little discussion in the constitutional convention, and it seems unlikely that there was any general understanding among the delegates of what the clause was designed to accomplish. In any event, Congress was quick to exercise its power to pass implementing legislation. The initial statute was enacted in 1790 by the First Congress. It provided for the manner of authenticating the acts of the legislatures and of the records and judicial proceedings of the several states and concluded that "the said records and judicial proceedings shall have such faith and credit given to them in every court of the United States, as they have by law or usage in the courts of the State from whence the said records are or shall be taken." The second congressional act, that of 1804, extended the scope of full faith and credit by requiring that the same measure of respect should be given to the records and judicial proceedings of the territories of the United States and of the countries subject to its jurisdiction.

Judicial decisions have now made clear many things that the full faith and credit clause and its implementing statutes left uncertain. The Supreme Court has decided that, provided the requirements of jurisdiction, notice, and opportunity to be heard have been satisfied, a judgment rendered in one state, territory, or possession of the United States shall in general be given the same res judicata effect that it has in the state of its rendition. Exceptions to this rule, if any there be, are few indeed. A state cannot, for example, deny effect to a judgment on the ground that the underlying claim was contrary to its public policy. Initially, some might have wondered whether Congress was empowered to extend the protection of full faith and credit to the records and judicial proceedings of territories and possessions of the United States. The full faith and credit clause itself gives no such authority, but the Supreme Court has held that this is to be found in those provisions of the Constitution that afford the United States with judicial power (Article III), authorize legislation that is necessary and proper to execute the powers entrusted to the federal government (Article II, section 8), and provide that the Constitution and the laws and treaties of the United States shall be the supreme law of the land (Article VI). Neither the clause nor the implementing statute refer to judgments of the federal courts. The Supreme Court has filled this gap by holding that these judgments are entitled to the same respect that is owed to state judgments.

A sharp distinction must be drawn between the recognition and the enforcement of judgments. With respect to recognition, the Supreme Court has held, as has already been said, that a judgment must be given the same res judicata effect that it enjoys under the law of the state of its rendition. On the other hand, the method of enforcing a judgment is determined by the law of the state where enforcement is sought. It is therefore for this latter law to determine whether a new action in the nature of debt must be brought on the judgment or whether it can be enforced by means of a registration procedure.

Full faith and credit is not owed to the judgments of foreign countries. Each state of the United States determines for itself the measure of respect that such judgments are to receive in its courts. Perhaps because of their experience in giving full faith and credit to federal and sister state judgments, American courts are extremely liberal, perhaps the most liberal in the world, in giving respect to the judgments of other countries.

The intentions of the original Framers may have been obscure. But the Supreme Court has said that the full faith and credit clause should become "a nationally unifying force" by establishing "throughout the federal system the salutory principle of the common law that a litigation once pursued to judgment shall be as conclusive of the rights of the parties in every other court as in that where the judgment was rendered."

It will have been noted that whereas the full faith and credit clause speaks of "public Acts, Records and judicial Proceedings," the implementing statutes of 1790 and 1804 required only that full faith and credit be given to records and judicial proceedings. No definite information is available on why public acts were omitted, but it can be surmised that this omission was deliberate and stemmed from the realization that the circumstances, if any, in which one state should be required to apply another's law presented considerations infinitely more complex than those involving the recognition and enforcement of judgments. (See choice of law.) After some years, the Supreme Court held that the clause was self-executing and that there were limited circumstances in which a state was required to apply another's laws. By and large, the Supreme Court has now withdrawn from its earlier opinions and today the command of full faith and credit with respect to public acts is slight indeed. The Supreme Court has, however, held that full faith and credit imposes limitations upon the power of a state to refuse on public policy grounds to entertain suit on a claim arising under the law of a sister state. It can be expected that in due course restrictions will likewise be placed upon a state's power to dismiss a suit on the ground that the claim involved is one for a penalty.

The implementing statute remained substantially unchanged from 1804 to 1948. In the latter year, it was amended as part of a general revision of Title 28 of the United States Code. This revision was not intended to make controversial substantive changes in the law. Nevertheless, the implementing statute was amended to require that full faith and credit be given not only to records and judicial proceedings, as had been the case heretofore, but to acts as well. It seems improbable that this change in wording will lead to any substantial change in the law. No such change was presumably intended by the revisers, and, to date, the amendment has not influenced the decisions of the courts. But, taken literally, the statute, as now worded, requires the same measure of respect for statutes that it does for judgments. There is always the possibility that at some time in the future the courts will seize upon this new language to make substantial changes in what is owed under full faith and credit to the statutes of sister states and of United States territories and possessions.

Willis L. M. Reese
(1986)

Bibliography

American Law Institute 1971 Restatement of the Law: Conflict of Laws, Second. Chap. 5, pages 271–348. St. Paul, Minn.: American Law Institute Publishers.

Nadelmann, Kurt 1957 Full Faith and Credit to Judgments and Public Acts. Michigan Law Review 56:33–88.

Whitten, Ralph U. 1981 The Constitutional Limitations on State-Court Jurisdiction: An Historical-Interpretative Reexamination of the Full Faith and Credit and Due Process Clauses. Creighton Law Review 14:499–606.

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