Full Faith and Conflict of Law: The Peculiar Legacy of Legal Federalism

83 Pages Posted: 2 Mar 2015

Date Written: March 1, 2015


The U.S. Constitution was the product of a complex process of political bargaining and compromise among the delegates to the Constitutional Convention in Philadelphia during the summer of 1787. While the new constitution crafted by the delegates and subsequently ratified by the thirteen state conventions was a major improvement over its predecessor (the ill-fated Articles of Confederation), especially in concentrating greater political authority at the center of the confederation, it imposed a flawed constitutional structure on the new regime based on the same untenable proposition that undermined the national government of the Confederacy — namely, that it was possible to preserve the states as separate “sovereign” political organizations within the political union. In adopting a federal constitutional structure for the new republic (as opposed to a “consolidated” or “unitary” government), the Founders institutionalized a disruptive tension at the center of our national political system — and consequently, at the center of our national legal system. How could the thirteen (now fifty) autonomous state courts be integrated with the new federal judiciary into a single, unified legal system? How could the states remain sovereign even while the Constitution and federal law are supposedly supreme? This illogical and structurally incoherent constitutional arrangement was once referred to as “dual sovereignty.” As applied to the legal system of a confederation, it is referred to herein as “legal federalism.” At the Constitutional Convention, the Founders only dimly perceived the potential problems attributable to legal federalism. Notwithstanding their considerable skill in statecraft, they failed to provide a viable solution to the conflicts of law endemic to legal federalism, offering neither operating rules nor overarching principles in the constitutional text to guide future generations of jurists. The vague language in Article IV of the Constitution prescribing that each state give “full faith and credit” to the public acts, records, and judicial proceedings of its sister states reveals only a vague recognition of the problem — certainly nothing amounting to a remedy. On the other hand, the fugitive slave clause in Article IV indicates that the Founders were all too aware of one particularly odious and contentious conflict of law (that over slavery) — to which they provided one particularly odious and contentious solution (the mandatory enforcement of the law of slave ownership everywhere). It would take a bloody civil war and an amendment to the Constitution to resolve that conflict. Congress and the courts were left to wrestle with the more mundane conflicts of law attributable to legal federalism, crafting patch-work solutions on an ad hoc basis. Over time, basic operating rules have been crafted to deal with most conflicts of law, but not all are so easily resolved. If less intractable than the conflict over slavery, others can be highly contentious — for instance, the conflict of law over same-sex marriage. In the end, such conflicts of law are attributable to the Founders’ decision to retain a federal constitutional structure — and with that, a system of legal federalism.

Keywords: federalism, constitutional law, conflict of laws

Suggested Citation

Pollack, Sheldon D., Full Faith and Conflict of Law: The Peculiar Legacy of Legal Federalism (March 1, 2015). Available at SSRN: https://ssrn.com/abstract=2571934 or http://dx.doi.org/10.2139/ssrn.2571934

Sheldon D. Pollack (Contact Author)

University of Delaware ( email )

419 Purnell Hall
Newark, DE 19716
United States
(302) 831-1803 (Phone)

HOME PAGE: http://www.buec.udel.edu/pollacks/

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