The Classic Rule of Faith and Credit
Since the late nineteenth century, orthodox doctrine under the Constitution's Full Faith and Credit Clause has presumed that the interpretation of that Clause set forth in Justice Joseph Story's 1833 Commentaries on the Constitution of the United States was essentially sound. This Article argues, however, that Justice Story's view had been endorsed by almost no one before him and actually contradicted the "classic rule" of faith and credit, which Justice Story had articulated in 1813. The Supreme Court, moreover, consistently reiterated the "classic rule" despite Justice Story's change of mind, continuing to do so even after his death. By the 1880s, perhaps due to a lack of critical attention, the "classic rule" of faith and credit had quietly fallen into desuetude, obscured by respect for Justice Story's name and the impression of authority associated with his works. This contradiction at the root of modern orthodox Full Faith and Credit doctrine has never been confronted until now. This Article assesses the historicity and soundness of both the "classic rule" and Justice Story's interpretation, which is now the orthodox view, concluding that the "classic rule" is far more defensible textually, grammatically, historically, and politically. This Article also examines the process by which, and the purpose for which, discretion over the "Effect" of sister-state "Public Acts, Records, and Judicial Proceedings" was conferred upon Congress by the second sentence of the Full Faith and Credit Clause. Finally, this Article argues that the complete and unqualified nature of the discretion thus vested regarding sister-state effects is an important element of the Constitution's system of separation of powers and facilitates pragmatic and responsible resolution, from time to time, of any issues in the conflict of laws that might give rise to significant concern or controversy on a national scale.