Conflicts Originalism: The 'Original Content' of the Full Faith and Credit Clause and the Compulsory Choice of Marriage Law
96 Pages Posted: 12 Jun 2017
Date Written: December 1, 2015
Abstract
The Full Faith and Credit Clause was originally expected to put constitutional constraints on state choice of law. Even the Supreme Court agrees with that proposition but has allowed the Clause to remain woefully under-enforced in this regard. The Court insists that it lacks objective guidance in identifying the conflicts principles that form what the Court itself has called the Clause’s “original content.” Yet the Court has itself indicated a methodology for this kind of investigation. Using that methodology, I examine historical sources from Renaissance Italy to early modern Spain, the Netherlands, and England in an effort to demonstrate that it is possible to identify at least some of the Clause’s original conflicts principles. My investigation focuses on principles for the resolution of interstate conflicts concerning the validity of marriages, a topic chosen because of indications of a Founding-era awareness of the relevant principles. I conclude that the “original content” of the Clause incorporating principles requiring states to recognize out-of-state marriages in certain circumstances.
Keywords: Conflict of Laws, Choice of Law, Marriage, Full Faith and Credit, Constitution, Originalism, Recognition
JEL Classification: K00, K1, K10, K19, K3, K30, K33, K36, K39, K4, K40, K41, K49
Suggested Citation: Suggested Citation