CRS Annotated Constitution

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Full Faith and Credit and Statutes of Limitation.—The full faith and credit clause is not violated by a state statute providing that all suits upon foreign judgments shall be brought within five years after such judgment shall have been obtained, where the statute has been construed by the state courts as barring suits on foreign judgments, only if the plaintiff could not revive his judgment in the state where it was originally obtained.139


Full Faith and Credit in Federal Courts

By the terms of 28 U.S.C. §§ 1738 –1739, the rule comprised therein pertains not merely to recognition by state courts of the records and judicial proceedings of courts of sister States but to recognition by “every court within the United States,” including recognition of the records and proceedings of the courts of any territory or any country subject to the jurisdiction of the United States. The federal courts are bound to give to the judgments of the state courts the same faith and credit that the courts of one State are bound to give to the judgments of the courts of her sister[p.864]States.140 Where suits to enforce the laws of one State are entertained in courts of another on principles of comity, federal district courts sitting in that State may entertain them and should, if they do not infringe federal law or policy.141 However, the refusal of a territorial court in Hawaii, having jurisdiction of the action which was on a policy issued by a New York insurance company, to admit evidence that an administrator had been appointed and a suit brought by him on a bond in the federal court in New York wherein no judgment had been entered, did not violate this clause.142

The power to prescribe what effect shall be given to the judicial proceedings of the courts of the United States is conferred by other provisions of the Constitution, such as those which declare the extent of the judicial power of the United States, which authorize all legislation necessary and proper for executing the powers vested by the Constitution in the Government of the United States, and which declare the supremacy of the authority of the National Government within the limits of the Constitution. As part of its general authority, the power to give effect to the judgment of its courts is coextensive with its territorial jurisdiction.143

Evaluation Of Results Under Provision

Thus the Court, from according an extrastate operation to statutes and judicial decisions in favor of defendants in transitory actions, proceeded next to confer the same protection upon certain classes of defendants in local actions in which the plaintiff’s claim was the outgrowth of a relationship formed *extraterritorially. But can the Court stop at this point? If it is true, as Chief Justice Marshall once remarked, that “the Constitution was not made for the benefit of plaintiffs’ alone,” so also it is true that it was not made for the benefit of defendants alone. The day may come when the Court will approach the question of the relation of the full faith and credit clause to the extrastate operation of laws from the same[p.865]angle as it today views the broader question of the scope of state legislative power. When and if this day arrives, state statutes and judicial decisions will be given such extraterritorial operation as seems reasonable to the Court to give them. In short, the rule of the dominance of legal policy of the forum State will be superseded by that of judicial review.144

The question arises whether the application to date, not by the Court alone but by Congress and the Court, of Article IV, Sec. 1, can be said to have met the expectations of its Framers. In the light of some things said at the time of the framing of the clause this may be doubted. The protest was raised against the clause that, in vesting Congress with power to declare the effect state laws should have outside the enacting State, it enabled the new government to usurp the powers of the States, but the objection went unheeded. The main concern of the Convention, undoubtedly, was to render the judgments of the state courts in civil cases effective throughout the Union. Yet even this object has been by no means completely realized, owing to the doctrine of the Court, that before a judgment of a state court can be enforced in a sister State, a new suit must be brought on it in the courts of the latter, and the further doctrine that with respect to such a suit, the judgment sued on is only evidence; the logical deduction from this proposition is that the sister State is under no constitutional compulsion to give it a forum. These doctrines were first clearly stated in the McElmoyle case and flowed directly from the new states’ rights premises of the Court, but they are no longer in harmony with the prevailing spirit of constitutional construction nor with the needs of the times. Also, the clause seems always to have been interpreted on the basis of the assumption that the term, “judicial proceedings,” refers only to final judgments and does not include intermediate processes and writs, but the assumption would seem to be groundless, and if it is, then Congress has the power under the clause to provide for the service and execution throughout the United States of the judicial processes of the several States.[p.866]


Under the present system, suit ordinarily has to be brought where the defendant, the alleged wrongdoer, resides, which means generally where no part of the transaction giving rise to the action took place. What could be more irrational? “Granted that no state can of its own volition make its process run beyond its borders . . . is it unreasonable that the United States should by federal action be made a unit in the manner suggested?”145

Indeed, there are few clauses of the Constitution, the merely literal possibilities of which have been so little developed as the full faith and credit clause. Congress has the power under the clause to decree the effect that the statutes of one State shall have in other States. This being so, it does not seem extravagant to argue that Congress may under the clause describe a certain type of divorce and say that it shall be granted recognition throughout the Union and that no other kind shall. Or to speak in more general terms, Congress has under the clause power to enact standards whereby uniformity of state legislation may be secured as to almost any matter in connection with which interstate recognition of private rights would be useful and valuable.


Doubtless Congress, by virtue of its powers in the field of foreign relations, might also lay down a mandatory rule regarding recognition of foreign judgments in every court of the United States. At present the duty to recognize judgments even in national courts rests only on comity and is qualified in the judgment of the Supreme Court, by a strict rule of parity.146


139 Watkins v. Conway, 385 U.S. 188, 190–191 (1965).
140 Cooper v. Newell, 173 U.S. 555, 567 (1899), See also Pennington v. Gibson, 16 How. (57 U.S.) 65, 81 (1854); Cheever v. Wilson, 9 Wall. (76 U.S.) 108, 123 (1870); Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291 (1888); Swift v. McPherson, 232 U.S. 51 (1914); Baldwin v. Traveling Men’s Assn., 283 U.S. 522 (1931); American Surety Co. v. Baldwin, 287 U.S. 156 (1932); Sanders v. Fertilizer Works, 292 U.S. 190 (1934); Durfee v. Duke, 375 U.S. 106 (1963); Allen v. McCurry, 449 U.S. 90 (1980); Kremer v. Chemical Const. Corp., 456 U.S. 461 (1982).
141 Milwaukee County v. White Co., 296 U.S. 268 (1935).
142 Equitable Life Assurance Society v. Brown, 187 U.S. 308 (1902). See also Gibson v. Lyon, 115 U.S. 439 (1885).
143 Embry v. Palmer, 107 U.S. 3, 9 (1883). See also Northern Assurance Co. v. Grand View Assn., 203 U.S. 106 (1906); Louisville & N.R.R. Co. v. Stock Yards Co., 212 U.S. 132 (1909); Atchison, T. & S.F. Ry. v. Sowers, 213 U.S. 55 (1909); West Side R.R. Co. v. Pittsburgh Const. Co., 219 U.S. 92 (1911); Knights of Pythias v. Meyer, 265 U.S. 30, 33 (1924).
144 Reviewing some of the cases treated in this section, a writer in 1926 said: “It appears, then, that the Supreme Court has quite definitely committed itself to a program of making itself, to some extent, a tribunal for bringing about uniformity in the field of conflicts...although the precise circumstances under which it will regard itself as having jurisdiction for this purpose are far from clear.” Dodd, The Power of the Supreme Court to Review State Decisions in the Field of Conflict of Laws, 39 L. Rev.533,562 (1926). It can hardly be said that the law has been subsequently clarified on this point.
145 Cook, The Power of Congress Under the Full Faith and Credit Clause, 28 L.J.421,430 (1919).
146 No right, privilege, or immunity is conferred by the Constitution in respect to judgments of foreign states and nations. Aetna Life Insurance Co. v. Tremblay, 223 U.S. 185 (1912). See also Hilton v. Guyot, 159 U.S. 113, 234 (1895), where a French judgment offered in defense was held not a bar to the suit. Four Justices dissented on the ground that “the application of the doctrine of res judicata does not rest in discretion; and it is for the Government, and not for its courts, to adopt the principle of retorsion, if deemed under any circumstances desirable or necessary.” At the same sitting of the Court, an action in a United States circuit court on a Canadian judgment was sustained on the same ground of reciprocity, Ritchie v. McMullen, 159 U.S. 235 (1895). See also Ingenohl v. Olsen & Co., 273 U.S. 541 (1927), where a decision of the Supreme Court of the Philippine Islands was reversed for refusal to enforce a judgment of the Supreme Court of the British colony of Hong Kong, which was rendered “after a fair trial by a court having jurisdiction of the parties.” Another instance of international cooperation in the judicial field is furnished by letters rogatory. See 28 U.S.C. Sec. 1781 . Several States have similar provisions, 2 J. Moore, Digest of International Law (Washington: 1906), 108–109.
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