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Why the Full Faith and Credit Clause Supports the Supreme Court's Decision in Hyatt
Andrew Hyman

In the recent case of California v. Hyatt, the U.S. Supreme Court said that one state must respect the sovereign immunity of another.  That decision has been criticized for not relying upon any particular text of the Constitution.  I commented on May 26 at this blog that the decision in Hyatt could have and probably should have been supported by the Full Faith and Credit Clause (FFC Clause).  Now I’d like to elaborate about the FFC Clause which is at Article IV, Section I:

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

The second sentence is not directly pertinent here, because Congress has not made any laws substantively addressing interstate sovereign immunity in a context like the Hyatt case.  The main federal statute about full faith and credit is 28 USC 1738 which deals with establishing credence of acts, records and judicial proceedings in sister states (“credence” is basically synonymous with “credit”), without saying whether the sister states must ever be faithful to those acts, records and judicial proceedings (the word “faith” often suggests loyalty, allegiance, or fidelity).  That’s why I’ve put in bold the first sentence above, which is self-executing.  The FFC Clause derived from the following clause in the Articles of Confederation:  

Full faith and credit shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.

This older clause did not clearly cover acts of state legislation like the FFC Clause does, and so this older clause would not address a state’s legislative declaration of sovereign immunity as in Hyatt.  Likewise, the addition in 1787 of a second sentence to the FFC Clause empowered Congress, which suggests that the framers were not entirely satisfied with how states had previously treated the clause just block quoted above.  For these reasons, one should not assume that a settled pre-1787 understanding would control the first sentence of the FFC Clause, and in fact the matter was unsettled during the Confederation period.

Professors Will Baude and Steve Sachs argued in their Hyatt amicus brief that the 1781 case of Nathan v. Virginia shows that the precursor of the FFC Clause in the Articles of Confederation did not guarantee interstate sovereign immunity.  But in that case, it was decided that states had sovereign immunity in the courts of sister states automatically by the law of nations unless waived, so there was no need in that case to address whether the “full faith and credit” language in the Articles of Confederation would have done something similar. 

Another event in 1781 is often overlooked: a committee of the Continental Congress reported that “execution” of that clause in the Articles of Confederation required a congressional declaration of two different things: “[1] the method of exemplifying records and [2] the operation of the Acts and judicial proceedings of the Courts of one State contravening those of the States in which they are asserted….”  Thus, the clause was often understood during the Confederation period as going beyond evidentiary matters, and the second sentence that was later added in 1787 addressed the exact two things that the committee had pointed to in 1781, including not just the method of authentication but also the effect of items authenticated. 

In Federalist 42, Madison called that older clause in the articles of Confederation “extremely indeterminate,” and yet the constitutional convention deemed it sufficiently determinate in 1787 to include in Article IV, at least as a default rule when Congress does not act.  An article by David Engdahl discussed various court cases from the Confederation period suggesting that the duty of “full faith and credit” mainly referred to authenticating actions of sister states, without any substantive duty to respect the stuff that was authenticated, but Engdahl acknowledged that the matter “remained in some dispute” as of 1787.  

Contrary to what several state courts opined before 1787, the words “faith” and “credit” should not be treated as redundant, and the word “credit” would have been sufficient if the only purpose was authentication.  An article by James Sumner (34 OR. L. REV. 224, 226 (1955)) pointed to evidence that this potential “repetition of meaning was apparently recognized by the members of the Constitutional Convention.”  In ordinary speech, the phrase “faith and credit” probably means “loyalty and credence,” and the preceding word “full” probably refers to a particular body of law or custom instead of referring to some maximum hypothetical extent.  After all, it would be ridiculous to force one state to fully obey every statute made by another state.  Sure enough, a pertinent body of law or custom was discussed at the constitutional convention by James Wilson: “what now takes place among all independent nations.”  

It is tempting to suppose that the word “full” in the FFC Clause instead means (per a 1790 statute quoted at length by Engdahl) “such faith and credit…as they have by law or usage in the courts of the state from whence the said records are or shall be taken.”  That supposition is problematic though, because the 1790 statute confined that use of the word “full” to records of judicial proceedings rather than acts of legislatures.  So, that 1790 statute was modifying (rather than elaborating) the default rule provided by the first sentence of the FFC Clause.  Engdahl confirms that this point “caused confusion among lawyers, judges, and even legislators.”

In sum, absent congressional modification of the default rule, states very probably must be faithful to a sister-state’s legislative claim of sovereign immunity.   This was the prevailing rule among the states and among nations in 1787, and is therefore essential for “full” faith and credit.  As Baude and Sachs wrote, “both parties in Nathan understood the case to turn directly on the law of nations."  Indeed, the law of nations was so clear that there was no need to use the proto-FFC clause, which at that time did not cover state-legislative assertions of sovereign immunity anyway.