INTRODUCTION I. THE PRACTICE BEFORE AMERICAN INDEPENDENCE A. The Common Law's Treatment of Prior Judgments B. Foreign Seals and the Local Enforcement Rule: The Holdings in Olive and Otway II. THE PRACTICE DURING THE CONFEDERATION ERA A. The "Full Faith and Credit" Mandate of the Articles of Confederation B. Cases Under the Articles of Confederation's Full Faith and Credit Provision III. "FULL FAITH AND CREDIT" AND "EFFECT" IN DRAFTING THE CONSTITUTION IV. THE FIRST CONGRESS AND SISTER-STATE EFFECT V. HEGEMONY AND ECLIPSE OF THE CLASSIC RULE A. The Early Views of the Supreme Court Justices 1. Bushrod Washington 2. Joseph Story 3. John Marshall 4. William Johnson 5. Henry Brockholst Livingston B. The Classic Supreme Court Construction of the Full Faith and Credit Clause and the 1790 Act C. Justice Story's Change of Mind CONCLUSION INTRODUCTION
The Full Faith and Credit Clause of our Federal Constitution, after requiring states to give full "faith and credit" to one another's "public Acts, Records, and judicial Proceedings," goes on to provide in its second sentence that "the Congress may by general Laws prescribe" not only "the Manner in which such Acts, Records and Proceedings shall be proved" but also "the Effect thereof." (1) The 1790 Act (2) first exercising this congressional power prescribed suitable methods for verifying the authenticity and accuracy of state legislative acts, records, and judicial proceedings, and provided--in a substantially different phrase using the same "faith and credit" idiom--that "the said records and judicial proceedings authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state" of their origin. (3)
Before the Constitution, Article IV of the Articles of Confederation had mandated giving "full faith and credit" to proceedings of sister-state "courts and magistrates." (4) Recognizing the "faith and credit" idiom as equivocal, however, James Madison described the provision as "extremely indeterminate," and "of little importance under any interpretation which it will bear." (5) Perhaps for this reason, the resolutions that he and other Virginia delegates prepared in anticipation of the 1787 Constitutional Convention, aimed at strengthening the national union, included nothing at all resembling the Articles of Confederation's "faith and credit" provision. Weeks later, however, the Convention's Committee of Detail proposed adding such a provision, and the delegates of six states approved the Committee's proposal in an amended form that mandated the national legislature to prescribe sister-state effect not only for "Records and judicial Proceedings," but also for "public Acts."
At the same time, apparently prompted by the statements of those opposed to mandating that the national legislature require states to enforce sister-states' "public Acts" at odds with their own laws and policies, Madison immediately moved to make it discretionary with Congress whether and how far to prescribe sister-state "Effect." Madison's amendment mitigated the concerns of opponents, and no one objected to the change. The language as altered by Madison's amendment--"the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof" (6)--was then so generally approved as to obviate any formal count of the states.
As ultimately promulgated for ratification, the first sentence of the Full Faith and Credit Clause still retained the equivocal "faith and credit" phrase, but court decisions under the Articles of Confederation had construed that phrase as mandating only admissibility and evidentiary sufficiency. (7) In contrast, the power (and discretion) newly conferred upon Congress in the second sentence of the Constitution's Clause explicitly pertained to sister-state "Effect." Therefore, while he deprecated the old Articles provision Madison expressed confidence that "[t]he power here established, may be rendered a very convenient instrument of justice," (8) noting by way of example that Congress could prescribe enforcement (without further judicial proceedings) of sister-state court orders against judgment debtors absconding with goods.
The First Congress's decision to repeat the "faith and credit" idiom in its 1790 Act, albeit with different adjectival terms ("such faith and credit ... as" instead of "full") (9), caused confusion among lawyers, judges, and even legislators. Many believed the statute merely reiterated the evidentiary principle ordained by the constitutional Clause. In unanimous opinions during the tenures of Chief Justices Marshall, Taney, and Chase, however, the Supreme Court consistently affirmed that the phrase "such faith and credit ... as" in the last sentence of the 1790 Act prescribed the sister-state "Effect" to be given to state records and judicial proceedings. In other words, the last sentence of the 1790 Act was held to be an exercise of the power over sister-state effect conferred upon Congress by the second sentence of the constitutional Clause. (10)
Thus arose what I call the "classic rule" of faith and credit: that this idiom as used in the Constitution (where it appears with the adjective "full"-a term used at the time in evidence law to designate prima facie sufficiency) states a constitutional principle of evidence, while the comparative adjectival phrase employing the same idiom in the federal statute dating from 1790 ("such faith and credit ... as") constitutes a congressional prescription of sister-state effect. To put it another way: the only provisions of federal law requiring that any of the United States give effect (as distinguished from prima facie evidentiary sufficiency) to sister-state "Acts," "Records," or "judicial Proceedings" are those provisions (if any) that Congress has legislatively prescribed.
By the last quarter of the nineteenth century, however, this "classic rule" was yielding to quite a different view. After generations the phrase "full faith and credit" (quite apart from its use in the different context of financial obligations) had come to be considered a term of art regarding judgments from other forums. Moreover, habituation to the longstanding replication rule prescribed by the 1790 Act had induced the impression that this term of art- without regard to the "such ... as" adjectival phrase of the 1790 Act--by itself imported sister-state replication of effect. Ironically, while that crucial modifying phrase in the 1790 Act was ignored, the modifier "full" in the constitutional Clause-which almost no one in the Founding generation had opined could mean anything more than evidentiary sufficiency (11)--came to be freighted with superlative import, smothering any doubt that the Clause by itself was a mandate of sister-state effect. Thus, by a gradual process of intellectual slippage that was neither recognized nor remarked upon at the time, it came to be assumed that for a state to give "full faith and credit" to a sister-state's judgment, for example, means to replicate the effect that it had where rendered.
This corruption of meaning did more than simply render the last sentence of the 1790 Act redundant. Treating the putative "term of art" as itself a mandate to replicate sister-state effect made the Full Faith and Clause entirely "self-executing" and rendered its last four words ("and the Effect thereof") peculiar and puzzling-if not indeed superfluous. (12) Obscuration of the "classic rule" also rendered nugatory the longstanding determination of Congress against prescribing any sister-state effect for state "public Acts." (13) In 1887, Chief Justice Waite asserted in dictum that "[w]ithout doubt" the constitutional Clause by itself means that "the public acts of every state shall be given the same effect by the courts of another state that they have by law and usage at home." (14) I call this "Cooley's folly," because the earliest instance that I have found of this simply ignorant proposition was its assertion by Michigan Judge and Professor Thomas M. Cooley, who offered neither relevant authority nor explanation. (15) Oblivious to its unprecedented novelty, Chief Justice Waite blithely called this "the logical result of the principles announced as early as 1813 ... and steadily adhered to ever since." (16) Chief Justice Waite's interpretation, however, was not a logical result of any principle announced in relevant Supreme Court opinions; it rather was an extrapolation from the entirely different view which, by the end of the Constitution's first century, without critical scrutiny had managed to displace the "classic rule." (17)
Conceiving the mandate to replicate effect as constitutional rather than statutory in origin entirely changed the perceived allocation of power between the legislative and judicial branches. This sea change occurred during the same period when due process clauses, both state and federal, were reaching their zenith as rubrics to justify curtailing legislative discretion by judicial oversight of substantive regulatory policies. (18) It seems more than coincidental that, beginning in 1887 in one of Chief Justice Waite's last opinions, (19) and continuing for some thirty years, (20) Supreme Court Justices routinely employed the idiom "due faith and credit" as equivalent to, or in lieu of, the "full" faith and credit phrase. As in the "substantive due process" realm, the Justices were taking unto themselves the prerogative to decide matters constitutionally entrusted to the representative political branch.
Since late in the nineteenth century, the proposition that the Full Faith and Credit Clause constitutionally mandates in "plain language" (21) the sister-state replication of effect, so that the Supreme Court is entitled to determine as a matter of constitutional law the sister-state effect of "public Acts, Records and...