An Historical Reassessment of Full Faith and Credit

60 Pages Posted: 5 Mar 2012 Last revised: 31 Aug 2017

See all articles by Jeffrey M. Schmitt

Jeffrey M. Schmitt

University of Dayton - School of Law

Date Written: March 3, 2012


The Defense of Marriage Act (“DOMA”) has generated a great deal of academic debate over Congress’s power under the Full Faith and Credit Clause. Although modern scholars have advanced a range of different interpretations, recent scholarship has argued that the Clause was originally understood to have granted Congress virtually unlimited power to prescribe how state acts and judgments would apply in other states. Under this prevailing historical view, DOMA would thus be consistent with the original meaning of the Full Faith and Credit Clause.

This Article offers a new account of the historical understanding of the Full Faith and Credit Clause and argues that, when properly understood, this historical account is superior to the modern theories advanced in the debate over DOMA. In the decades following Ratification, the Clause was believed to have required state courts to view the judgments and acts of other states as conclusive, and Congress was not understood to have been able to alter this constitutional directive. This conclusion largely tracks, and provides historical support for, the constitutional constraints on congressional power advocated by DOMA’s critics. However, this Article argues that Congress’s power was also understood to have been subject to an additional, previously ignored, limitation: territorial-based concepts of jurisdiction that generally prohibited a state from exerting power beyond its borders. Thus, while modern theories envision expansive congressional power to extend the reach of state acts and judgments beyond what is provided for at common law, congressional power was historically believed to have been much more limited This Article further argues that such limitations best fit with the Constitution’s text and structure. If this historical understanding were to be applied to the issue of same-sex marriage, Congress would likely lack the power, seemingly asserted in DOMA, to create rules proscribing how one state’s marriage laws apply in other states.

Keywords: Full Faith and Credit, DOMA, conflict of laws, recognition of judgments

Suggested Citation

Schmitt, Jeffrey M., An Historical Reassessment of Full Faith and Credit (March 3, 2012). George Mason Law Review, 2013, Available at SSRN: or

Jeffrey M. Schmitt (Contact Author)

University of Dayton - School of Law ( email )

300 College Park
Dayton, OH 45469
United States

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