THE WORDS THAT MADE US LISTEN TO ONE ANOTHER.

• Author: Proctor, Haley N.

Akhil Reed Amar taught me to love the Constitution, and how to read it. The Words That Made Us (2) sets his lessons on constitutional interpretation to an engaging story about the founding of our country. That story inspires the same reverence and respect for the document and the "We" who crafted it that I felt as a college freshman in Professor Amar's class over fifteen years ago. It is a pleasure to read and an honor to review.

I

The Words That Made Us begins with an unfamiliar episode of American history, from which Amar draws an unconventional lesson: the Boston Court House showdown between James Otis Jr. and Thomas Hutchinson, in Amar's words, "reveals the profound passions, the deep tensions, and the underlying forces that would eventually rip the British Empire apart" (p. 30). The vignette reveals something else, too: how difficult it was in 1761-or in 1781 or 1789, for that matter--to know what the law was. Original records were local, and copies were prohibitively expensive, notoriously unreliable, and. unless properly sealed. required live attestation.' The legal dispute about writs of assistance flared from an article in the London Magazine (p. 13); Hutchinson resolved it by "corresponding] with sources in London" (p. 20); and modern observers view it through the prism of newspaper articles and personal memoirs (pp. 14, 20-21).

Official records play no visible role.

The challenges of authenticating and effectuating "the public Acts. Records, and judicial Proceedings" of other jurisdictions present an obstacle to union that is easy to forget in the era of Westlaw. The Founders thought those challenges important enough to warrant top billing in Article IV. the "Federal Article" (4) of the Constitution.

The Full Faith and Credit Clause is an underappreciated and underexamined part of the Constitution's answer to what Amar describes as "the key constitutional question" of the period: "were [the Americans of 1776] Americans first, or should their primary loyalties run to their respective colonies-turned-states?" (p. ix). The answer to that question depended not just on how a citizen of Massachusetts, say, would relate to the newly created federal government, but also on how he would relate to governments of New York and Virginia and South Carolina. Would he be received in those states as a foreigner or as a fellow citizen?

Article IV offers at least two answers to this subsidiary question. One is the Privileges and Immunities Clause. (5) As Amar writes, the Privileges and Immunities Clause guaranteed that Virginia would "treat a citizen of Massachusetts as a Virginian for most purposes" (pp. 167, 184). The other answer is the Full Faith and Credit Clause. In contrast to the Privileges and Immunities Clause, the Full Faith and Credit Clause enables a citizen of Massachusetts to insist that Virginia treat him the same way Massachusetts would treat him. at least in certain circumstances.

The Privileges and Immunities Clause had headlined Article IV of the Articles of Confederation, but it ceded pride of place in the Constitution to the Full Faith and Credit Clause. At first blush, the Full Faith and Credit Clause may seem to strengthen our hypothetical citizen's allegiance to Massachusetts: if Massachusetts could dictate his rights as he travelled around the United States, perhaps he was a Bay-Stater first and foremost. Appearances can be deceiving. The Full Faith and Credit Clause required Virginia magistrates and judges to enforce or apply Massachusetts edicts--and not just as a matter of comity, but as a matter of law. The States were "Independent Nations"'' no more (p. 263). (7) And our Massachusetts citizen could trade with his neighbor in Virginia without feeling like he was doing business abroad. For these reasons, the Clause was viewed at the time as "one cement of union between these states," and "one of [the Constitution's] most important and salutary provisions." (8)

The Full Faith and Credit Clause provides: "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. " (9)

What does it mean to give "full faith and credit" to a sister-state record? Your guess is as good as James Madison's. He called the meaning of the phrase "extremely indeterminate." (10) Two dominant interpretations of the Clause emerged in the early republic and endure today. One holds that the Clause required courts to treat properly authenticated records as proof that the underlying act, record, or judicial proceeding existed or occurred as described in the record. Congress could give the record effect, but until it did, the record remained merely prima facie evidence of the right asserted in the record." The other interpretation holds that the Clause itself required courts to treat at least judgments as conclusive of the underlying right, irrespective of how Congress exercised its power under the second sentence. (12)

To understand what these interpretations mean, consider a Massachusetts judgment that D owes P a debt. If P sues on that judgment in Virginia, what defenses can D assert? According to the first, so-called "evidentiary" interpretation of the Clause, the judgment is merely prima facie evidence that D owes P a debt. D may impeach it with contradictory evidence. (13) According to the second, so-called "effects" interpretation of the Clause, the judgment is conclusive on the question whether D owes P a debt. D can deny the existence of the record, but once it is properly authenticated. D cannot deny the existence of the debt. (14)

The problem with the evidentiary interpretation is that it makes the first sentence of the Clause "of little importance." (15) Independent nations treated each other's records with as much dignity as a matter of international law. (16) The Constitution requires "full faith and credit." The wages of comity are paltry earnings from such strenuous language.

The problem with the effects interpretation is that it makes the second sentence of the Clause unimportant: if "full faith and credit" settled the effect records were to have, then what does it mean for Congress to have the power to "prescribe the Effect thereof"? The Constitution requires "full faith and credit." Logically, nothing is greater than "full." (17)

The inclusion of "public Acts" presents a problem for the effects reading, too. What does it mean to give conclusive effect to a law? Does a Virginia court have to apply Massachusetts law. and a Massachusetts court, Virginia law? If so, when? The Clause does not say, and attempting to infer an answer from the sparse but categorial injunction of "full faith and credit" quickly lands us on the other side of the looking glass. (18)

The mystery deepens...