The Classic Rule of Faith and Credit
77 Pages Posted: 30 Nov 2008 Last revised: 6 Jan 2010
Debate over the past dozen years regarding Congress' power to prescribe and alter sister-state effect under the Full Faith and Credit Clause has focused largely on the so-called "Defense of Marriage Act"; but as recent laws regarding child custody and support orders illustrate, the scope of that congressional power has much broader potential ramifications. This penetrating study, taking an entirely fresh look at materials overlooked or misconceived by prior scholarship on point, argues that Congress was deliberately vested with untrammeled discretion whether and how far to require sister-state effect for state judgments, records, and public acts, and that this discretion was freely exercised - and judicially confirmed - for generations before habituation to the rule statutorily enacted only for judgments and non-judicial records induced the mistaken view that the Full Faith and Credit Clause itself constitutionally mandates sister-state equivalence of effect not only for judgments, but for state law as well. Neglect of the "classic rule" still encumbers conflict of laws analysis, and unduly constrains the potential for pragmatic legislative accommodation of competing interests - a function designated by "textually demonstrable constitutional commitment" as one for Congress alone, and not at all for the judicial branch under guise of constitutional construction.
Keywords: Full faith and credit, Constitutional law, Conflict of laws, Legal history
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