Abstract

http://ssrn.com/abstract=1931692
 


 



Madison's Full Faith and Credit Clause: A Historical Analysis


Charles M. Yablon


Yeshiva University - Benjamin N. Cardozo School of Law

September 6, 2011

Cardozo Law Review, Vol. 33, No. 1, p. 125, 2011
Cardozo Legal Studies Research Paper No. 351

Abstract:     
The Defense of Marriage Act (DOMA) has created a new wave of interest in the Full Faith and Credit Clause and its apparent contradictions. Important recent scholarship has shown that American lawyers in the eighteenth century often viewed the term “full faith and credit” as referring to an evidentiary rule. This interpretation ameliorates, but does not actually resolve, the apparent conflict between the first sentence of the Clause, which seems to create a mandatory rule of sister state deference, and the second sentence of the Clause, which seems to give Congress plenary power to abrogate that rule. Rather than seek a chimerical general understanding of the Clause, this Article focuses on James Madison to provide a new and strikingly different historical account of the creation of the Full Faith and Credit Clause. It shows how the Full Faith and Credit Clause was part of a broader plan by Madison and others to curb the ability of states to take acts that were harmful to one another and to the nation, particularly those which, by interfering with vested contract and property rights, jeopardized the country’s economic well-being. Madison purposely sought a Clause that would embody a vague but dynamic deference obligation that could be increased by Congress over time.

Madison’s actions and writings regarding the Full Faith and Credit Clause strongly suggest that he would have considered congressional actions to weaken or abrogate existing deference obligations not just unwise and unjust, but unconstitutional. Unlike powers which appropriately belonged to the federal legislature irrespective of how they were exercised, Madison’s justification for the powers granted under the second sentence of the Clause was based on how Madison expected those powers to be used, namely, to “provide for the harmony and proper intercourse among the states.” What emerges from this analysis is a picture of the Full Faith and Credit Clause that has significant similarities to the “one way ratchet” interpretation which has been used to argue that the DOMA is unconstitutional, but one in which the presumed constraints on congressional action are the product of national interest, political virtue, and natural law as well as the language of the Full Faith and Credit Clause.

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Date posted: September 21, 2011 ; Last revised: October 11, 2011

Suggested Citation

Yablon, Charles M., Madison's Full Faith and Credit Clause: A Historical Analysis (September 6, 2011). Cardozo Law Review, Vol. 33, No. 1, p. 125, 2011; Cardozo Legal Studies Research Paper No. 351. Available at SSRN: http://ssrn.com/abstract=1931692

Contact Information

Charles M. Yablon (Contact Author)
Yeshiva University - Benjamin N. Cardozo School of Law ( email )
55 Fifth Ave.
New York, NY 10003
United States
212-790-0200 (Phone)
212-790-0205 (Fax)

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