Full Faith and Credit

Author:Willis L. M. Reese

Page 1170

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...

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