The Limited Scope of the Full Faith and Credit Clause
Article IV, Section 1 of the Constitution requires every state to give “full faith and credit” to public acts, records and judicial proceedings of every other state.
This rather obscure constitutional provision eased its way into the spotlight in recent months as gun rights advocates have pushed for national concealed-carry reciprocity.
A federal conceal-carry reciprocity mandate would require every state to recognize every other state’s concealed-carry permit. While the Constitution doesn’t delegate any power to the federal government to mandate or regulate state concealed-carry policies supporters argue the full faith and credit clause authorizes a national reciprocity law.
But this argument stretches a narrowly conceived constitutional clause past its breaking point.
Article IV, Section 1 reads:
“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.”
Understanding the original intent of this clause requires a little legal and historical background.
The legal meaning of the term “full faith and credit” relates specifically to legal documents. The phrase was used for more than 100 years before the ratification of the Constitution to indicate “high evidentiary value.” For instance, the term appears in a 1662 English translation of a Franco-Spanish treaty. The agreement provided for both the French and Spanish governments to issue maritime passports and bills of lading to confirm a ship’s ownership and cargo – “unto which Passes and Sea Letters, full Faith and Credit shall be given.” (1)
In simplest terms, the clause requires courts in one state to give documents and judgments from another state full legal weight. As one Pennsylvania judge explained the clause as written in the Articles of Confederation, it was “chiefly intended to oblige each state to receive the records of another as full evidence of such acts and judicial proceedings.”
During debates at the Philadelphia Convention, James Wilson and William Johnson explained that the clause was primarily intended to prevent residents of one state from fleeing to another in order to escape legal judgments, specifically relating to debts. They said the clause simply meant “that Judgments in one State should be the ground of actions in other States, & that acts of the Legislatures should be included for the sake of Acts of insolvency.” (2)
As an example, let’s say a court in Massachusetts issued a judgment ordering Bob to pay Fred $200. After the judgment, Bob moves to New Hampshire to escape paying his debt. A couple of years later, Fred tracks Bob down and drags him to court hoping to force Bob to abide by the judgment and pay up. Under the full faith and credit clause, the New Hampshire court must give “full faith and credit” to the judgment and any related legal documents issued in the case by the Massachusetts’ court. Massachusetts legal documents would carry the same evidentiary weight in proving Fred’s legal right to collect in the New Hampshire court as they did in Massachusetts.
The Constitution expanded on the Articles of Confederation’s full faith and credit clause by delegating to Congress the power to “prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” In other words, Congress can create a uniform process of authenticating court records and executing judgments from another state.
During the Philadelphia Convention, James Madison proposed giving power to Congress “to provide for the execution of Judgments in other States, under such regulations as might be expedient,” According to notes on the Convention, “He thought that this might be safely done and was justified by the nature of the Union.” (3)
Madison explained the reason for delegating this power to Congress and why it was an improvement on the Articles of Confederation in Federalist # 42.
“The power of prescribing by general laws, the manner in which the public acts, records and judicial proceedings of each State shall be proved, and the effect they shall have in other States, is an evident and valuable improvement on the clause relating to this subject in the articles of Confederation. The meaning of the latter is extremely indeterminate, and can be of little importance under any interpretation which it will bear. The power here established may be rendered a very convenient instrument of justice, and be particularly beneficial on the borders of contiguous States, where the effects liable to justice may be suddenly and secretly translated, in any stage of the process, within a foreign jurisdiction.”
The full faith and credit clause was not particularly controversial and was the subject of very little discussion during the ratification debates.
Examining the origin and stated intent of the clause, we find that it was narrowly construed to apply to court proceedings and judgments. It was not intended to force one state to honor a permit or license issued by another state. If the full faith and credit clause empowers Congress to mandate that every state must recognize California’s concealed-carry permit, it could also mandate that every state recognize California’s beautician licenses, its fishing licenses and its architectural license. In effect, this would turn every conceivable license and permit into a federal license or permit.
This would represent an expansion of federal power inconceivable to the founding generation.
1. Full Faith and Credit in the Early Congress
2. James Madison, Notes of Debates in the Federal Convention of 1787, 546.
3. James Madison, Notes of Debates in the Federal Convention of 1787, 546-547.