ARTICLE IV

STATES’ RELATIONS

CONTENTS

Page

Section 1. Full Faith and Credit .............................................................................................. 929

Sources and Effect of Full Faith and Credit .................................................................... 929

Private International Law .......................................................................................... 929

Judgments: Effect to Be Given In Forum State .............................................................. 930

In General .................................................................................................................... 930

Jurisdiction: A Prerequisite to Enforcement of Judgments ..................................... 934

Judgments in Personam ...................................................................................... 935

Service on Foreign Corporations ......................................................................... 936

Service on Nonresident Motor Vehicle Owners ................................................. 937

Judgments in Rem ............................................................................................... 937

Divorce Decrees: Domicile as the Jurisdictional Prerequisite ................................. 938

Divorce Suit: In Rem or in Personam; Judicial Indecision .............................. 939

Williams I and Williams II .................................................................................. 940

Cases Following Williams II ............................................................................... 942

Claims for Alimony or Property in Forum State .............................................. 944

Decrees Awarding Alimony, Custody of Children .............................................. 946

Status of the Law ................................................................................................. 948

Other Types of Decrees ............................................................................................... 949

Probate Decrees .................................................................................................... 949

Adoption Decrees .................................................................................................. 950

Garnishment Decrees .......................................................................................... 950

Penal Judgments: Types Entitled to Recognition ..................................................... 951

Fraud as a Defense to Suits on Foreign Judgments ................................................ 952

Recognition of Rights Based Upon Constitutions, Statutes, Common Law .................. 952

Development of the Modern Rule .............................................................................. 952

Transitory Actions: Death Statutes .................................................................... 955

Actions Upon Contract ........................................................................................ 955

Stockholder Corporation Relationship ................................................................ 956

Fraternal Benefit Society: Member Relationship .............................................. 957

Insurance Company, Building and Loan Association: Contractual

Relationships ..................................................................................................... 958

Workers’ Compensation Statutes ........................................................................ 960

Full Faith and Credit and Statutes of Limitation ............................................ 962

Full Faith and Credit: Miscellany .................................................................................... 962

Full Faith and Credit in Federal Courts .................................................................. 962

Evaluation Of Results Under Provision .................................................................... 963

Scope of Powers of Congress Under Provision ................................................................. 964

Judgments of Foreign States ............................................................................................. 965

Section 2. Interstate Comity ..................................................................................................... 965

Clause 1. State Citizenship: Privileges and Immunities ................................................ 965

Origin and Purpose ..................................................................................................... 965

How Implemented ....................................................................................................... 969

Citizens of Each State ................................................................................................ 969

927
Section 2. Interstate Comity—Continued

Clause 1. State Citizenship: Privileges and Immunities—Continued

Corporations ......................................................................................................... 969

All Privileges and Immunities of Citizens in the Several States ........................... 970

Discrimination in Private Rights ............................................................................... 973

Access to Courts .......................................................................................................... 974

Taxation ........................................................................................................................ 975

Clause 2. Interstate Rendition .......................................................................................... 977

Duty to Surrender Fugitives From Justice ............................................................... 977

Fugitive From Justice Defined ............................................................................ 978

Procedure for Removal ......................................................................................... 979

Trial of Fugitives After Removal ........................................................................ 979

Clause 3. Fugitives From Labor ....................................................................................... 980

Section 3. Admission of New States; Property of United States ........................................... 981

Clause 1. Admission of New States to Union .................................................................. 981

Doctrine of the Equality of States ............................................................................. 981

Judicial Proceedings Pending on Admission of New States ............................. 985

Property Rights of States to Soil Under Navigable Waters ............................. 986

Clause 2. Property of the United States .......................................................................... 987

Property and Territory: Powers of Congress ............................................................. 987

Methods of Disposing of Property ....................................................................... 987

Public Lands: Federal and State Powers Thereover ......................................... 988

Territories: Powers of Congress Thereover ........................................................ 990

Section 4. Obligations of United States to States .................................................................. 991

Guarantee of Republican Form of Government ............................................................... 991

928 ART. IV—STATES’ RELATIONS
STATES’ RELATIONS

ARTICLE IV

SECTION 1. 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.

SOURCES AND EFFECT OF FULL FAITH AND CREDIT

Private International Law

The historical background of the Full Faith and Credit Clause

is furnished by the branch of private law that is variously termed

“private international law,” “conflict of laws,” and “comity.” This branch

comprises a body of rules, based largely on the writings of jurists

and judicial decisions, in accordance with which the courts of one

country, or “jurisdiction,” will ordinarily, in the absence of a local

policy to the contrary, extend recognition and enforcement to rights

claimed by individuals by virtue of the laws or judicial decisions of

another country or “jurisdiction.” Most frequently applied examples

of these rules include the following: the rule that a marriage that

is good in the country where performed (lex loci) is good elsewhere;

the rule that contracts are to be interpreted in accordance with the

laws of the country where entered into (lex loci contractus) unless

the parties clearly intended otherwise; the rule that immovables may

be disposed of only in accordance with the law of the country where

situated (lex rei sitae); 1 the converse rule that chattels adhere to

the person of their owner and hence are disposable by him, even

when located elsewhere, in accordance with the law of his domicile

(lex domicilii); the rule that, regardless of where the cause arose,

the courts of any country where personal service of the defendant

can be effected will take jurisdiction of certain types of personal actions—hence termed “transitory”—and accord such remedy as the

lex fori affords. Still other rules, of first importance in the present

connection, determine the recognition that the judgments of the courts

of one country shall receive from those of another country.

1 Clark v. Graham, 19 U.S. (6 Wheat.) 577 (1821), is an early case in which the

Supreme Court enforced this rule.

929
So, even had the states of the Union remained in a mutual relationship of entire independence, private claims originating in one

often would have been assured recognition and enforcement in the

others. The Framers felt, however, that the rules of private international law should not be left among the states altogether on a basis

of comity and hence subject always to the overruling local policy of

the lex fori, but ought to be in some measure at least placed on the

higher plane of constitutional obligation. In fulfillment of this intent, the Full Faith and Credit Clause was inserted, and Congress

was empowered to enact supplementary and enforcing legislation.2

JUDGMENTS: EFFECT TO BE GIVEN IN FORUM STATE

In General

Article IV, § 1, has had its principal operation in relation to judgments. Embraced within the relevant discussions are two principal

classes of judgments. First, those in which the judgment involved

was offered as a basis of proceedings for its own enforcement outside the state where rendered, as for example, when an action for

debt is brought in the courts of State B on a judgment for money

damages rendered in State A; second, those in which the judgment

involved was offered, in conformance with the principle of res judicata,

in defense in a new or collateral proceeding growing out of the same

facts as the original suit, as for example, when a decree of divorce

granted in State A is offered as barring a suit for divorce by the

other party to the marriage in the courts of State B.

The English courts and the different state courts in the United

States, while recognizing “foreign judgments in personam,” which

were reducible to money terms as affording a basis for actions in

debt, originally accorded them generally only the status of prima

facie evidence in support thereof, so that the merits of the original

controversy could always be opened. When offered in defense, on

the other hand, “foreign judgments in personam” were regarded as

conclusive upon everybody on the theory that, as stated by Chief

Justice Marshall, “it is a proceeding in rem, to which all the world

are parties.” 3 The pioneer case was Mills v. Duryee,

4 decided in 1813.

In an action brought in the circuit court of the District of Columbia, the equivalent of a state court for this purpose, on a judgment

from a New York court, the defendant endeavored to reopen the whole

2 Congressional legislation under the Full Faith and Credit Clause, insofar as it

is pertinent to adjudication under the clause, is today embraced in 28 U.S.C. §§ 1738–

1739. See also 28 U.S.C. §§ 1740–1742.

3 Mankin v. Chandler, 16 F. Cas. 625, 626 (No. 9030) (C.C.D. Va. 1823).

4 11 U.S. (7 Cr.) 481 (1813). See also Everett v. Everett, 215 U.S. 203 (1909);

Insurance Company v. Harris, 97 U.S. 331 (1878).

Sec. 1—Full Faith and Credit

930 ART. IV—STATES’ RELATIONS
question of the merits of the original case by a plea of “nil debet.”

It was answered in the words of the first implementing statute of

1790 5 that such records and proceedings were entitled in each state

to the same faith and credit as in the state of origin, and that, as

they were records of a court in the state of origin, and so conclusive of the merits of the case there, they were equally so in the

forum state. The Court found that it had not been the intention of

the Constitution merely to reenact the common law—that is, the

principles of private international law—with regard to the reception of foreign judgments, but to amplify and fortify these.6 Some

years later, in Hampton v. McConnell,

7 Chief Justice Marshall went

even further, using language that seems to show that he regarded

the judgment of a state court as constitutionally entitled to be accorded in the courts of sister states not simply the faith and credit

on conclusive evidence but the validity of final judgment.

When, however, the next important case arose, the Court had

come under new influences. This case was McElmoyle v. Cohen,

8

in

which the issue was whether a statute of limitations of the State of

Georgia, which applied only to judgments obtained in courts other

than those of Georgia, could constitutionally bar an action in Georgia on a judgment rendered by a court of record of South Carolina.

Declining to follow Marshall’s lead in Hampton v. McConnell, the

Court held that the Constitution was not intended “materially to

interfere with the essential attributes of the lex fori,” that the act

of Congress only established a rule of evidence—of conclusive evidence to be sure, but still of evidence only; and that it was neces5 Chap. XI, 1 Stat. 122 (“records and judicial proceedings authenticated as aforesaid, shall have such faith and credit given to them in every court within the United

States, as they have by law or usage in the courts of the state from whence the said

records are or shall be taken”).

6 On the same basis, a judgment cannot be impeached either in or out of the

state by showing that it was based on a mistake of law. American Express Co. v.

Mullins, 212 U.S. 311, 312 (1909). Fauntleroy v. Lum, 210 U.S. 230 (1908); Hartford

Life Ins. Co. v. Ibs, 237 U.S. 662 (1915); Hartford Life Ins. Co. v. Barber, 245 U.S.

146 (1917).

7 16 U.S. (3 Wheat.) 234 (1818).

8 38 U.S. (13 Pet.) 312 (1839). See also Townsend v. Jemison, 50 U.S. (9 How.)

407, 413–20 (1850); Bank of Alabama v. Dalton, 50 U.S. (9 How.) 522, 528 (1850);

Bacon v. Howard, 61 U.S. (20 How.) 22, 25 (1858); Christmas v. Russell, 72 U.S. (5

Wall.) 290, 301 (1866); Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 292 (1888); Great

Western Tel. Co. v. Purdy, 162 U.S. 329 (1896); Wells v. Simonds Abrasive Co., 345

U.S. 514, 516–18 (1953). Subsequently, the Court reconsidered and adhered to the

rule of these cases, although the Justices divided with respect to rationales. Sun Oil

Co. v. Wortman, 486 U.S. 717 (1988). Acknowledging that in some areas it had treated

statutes of limitations as substantive rules, such as in diversity cases to insure uniformity with state law in federal courts, the Court ruled that such rules are procedural for full-faith-and-credit purposes, since “[t]he purpose . . . of the Full Faith

and Credit Clause . . . is . . . to delimit spheres of state legislative competence.” Id.

at 727.

Sec. 1—Full Faith and Credit

ART. IV—STATES’ RELATIONS 931
sary, in order to carry into effect in a state the judgment of a court

of a sister state, to institute a fresh action in the court of the former, in strict compliance with its laws; and that, consequently, when

remedies were sought in support of the rights accruing in another

jurisdiction, they were governed by the lex fori. In accord with this

holding, the Court further held that foreign judgments enjoy, not

the right of priority or privilege or lien that they have in the state

where they are pronounced but only what the lex fori gives them

by its own laws, in their character of foreign judgments.9 A judgment of a state court, in a cause within its jurisdiction, and against

a defendant lawfully summoned, or against lawfully attached property of an absent defendant, is entitled to as much force and effect

against the person summoned or the property attached, when the

question is presented for decision in a court in another state, as it

has in the state in which it was rendered.10

A judgment enforceable in the state where rendered must be

given effect in another state, notwithstanding that the modes of procedure to enforce its collection may not be the same in both states.11

If the initial court acquired jurisdiction, its judgment is entitled to

full faith and credit elsewhere even though the former, by reason

of the departure of the defendant with all his property, after having been served, has lost its capacity to enforce it by execution in

the state of origin.12 “A cause of action on a judgment is different

from that upon which the judgment was entered. In a suit upon a

money judgment for a civil cause of action, the validity of the claim

upon which it was founded is not open to inquiry, whatever its genesis. Regardless of the nature of the right which gave rise to it, the

judgment is an obligation to pay money in the nature of a debt upon

a specialty. Recovery upon it can be resisted only on the grounds

that the court which rendered it was without jurisdiction, . . . or

that it has ceased to be obligatory because of payment or other discharge . . . or that it is a cause of action for which the State of the

forum has not provided a court.” 13

On the other hand, the clause is not violated when a judgment

is disregarded because it is not conclusive of the issues before a

court of the forum. Conversely, no greater effect can be given than

9 Cole v. Cunningham, 133 U.S. 107, 112 (1890). See also Stacy v. Thrasher, 47

U.S. (6 How.) 44, 61 (1848); Milwaukee County v. White Co., 296 U.S. 268 (1935).

10 Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887); Hanley

v. Donoghue, 116 U.S. 1, 3 (1885). See also Green v. Van Buskirk, 74 U.S. (7 Wall.)

139, 140 (1869); Bigelow v. Old Dominion Copper Co., 225 U.S. 111 (1912); Roche v.

McDonald, 275 U.S. 449 (1928); Ohio v. Chattanooga Boiler Co., 289 U.S. 439 (1933).

11 Sistare v. Sistare, 218 U.S. 1 (1910).

12 Michigan Trust Co. v. Ferry, 228 U.S. 346 (1913). See also Fall v. Eastin, 215

U.S. 1 (1909).

13 Milwaukee County v. White Co., 296 U.S. 268, 275–276 (1935).

Sec. 1—Full Faith and Credit

932 ART. IV—STATES’ RELATIONS
is given in the state where rendered. Thus, an interlocutory judgment may not be given the effect of a final judgment.14 Likewise,

when a federal court does not attempt to foreclose the state court

from hearing all matters of personal defense that landowners might

plead, a state court may refuse to accept the former’s judgment as

determinative of the landowners’ liabilities.15 Similarly, though a confession of judgment upon a note, with a warrant of attorney annexed, in favor of the holder, is in conformity with a state law and

usage as declared by the highest court of the state in which the

judgment is rendered, the judgement may be collaterally impeached upon the ground that the party in whose behalf it was rendered was not in fact the holder.16 But a consent decree, which under the law of the state has the same force and effect as a decree

in invitum, must be given the same effect in the courts of another

state.17

Subsequent to its departure from Hampton v. McConnell,

18 the

Court does not appear to have formulated, as a substitute, any clearcut principles for disposing of the contention that a state need not

provide a forum for a particular type of judgment of a sister state.

Thus, in one case, it held that a New York statute forbidding foreign corporations doing a domestic business to sue on causes originating outside the state was constitutionally applicable to prevent

such a corporation from suing on a judgment obtained in a sister

state.19 But, in a later case, it ruled that a Mississippi statute forbidding contracts in cotton futures could not validly close the courts

of the state to an action on a judgment obtained in a sister state

on such a contract, although the contract in question had been entered into in the forum state and between its citizens.20 Following

the later rather than the earlier precedent, subsequent cases 21 have

held: (1) that a state may adopt such system of courts and form of

remedy as it sees fit but cannot, under the guise of merely affect14 Board of Public Works v. Columbia College, 84 U.S. (17 Wall.) 521 (1873); Robertson v. Pickrell, 109 U.S. 608, 610 (1883).

15 Kersh Lake Dist. v. Johnson, 309 U.S. 485 (1940). See also Texas & Pac. Ry.

v. Southern Pacific Co., 137 U.S. 48 (1890).

16 National Exchange Bank v. Wiley, 195 U.S. 257, 265 (1904). See also Grover

& Baker Machine Co. v. Radcliffe, 137 U.S. 287 (1890).

17 Harding v. Harding, 198 U.S. 317 (1905).

18 16 U.S. (3 Wheat.) 234 (1818).

19 Anglo-American Provision Co. v. Davis Provision Co., 191 U.S. 373 (1903).

20 Fauntleroy v. Lum, 210 U.S. 230 (1908). Justice Holmes, who spoke for the

Court in both cases, asserted in his opinion in the latter that the New York statute

was “directed to jurisdiction,” the Mississippi statute to “merits,” but four Justices

could not grasp the distinction.

21 Kenney v. Supreme Lodge, 252 U.S. 411 (1920), and cases there cited. Holmes

again spoke for the Court. See also Cook, The Powers of Congress under the Full

Faith and Credit Clause, 28 YALE L.J. 421, 434 (1919).

Sec. 1—Full Faith and Credit

ART. IV—STATES’ RELATIONS 933
ing the remedy, deny enforcement of claims otherwise within the

protection of the full faith and credit clause when its courts have

general jurisdiction of the subject matter and the parties; 22 (2) that,

accordingly, a forum state that has a shorter period of limitations

than the state in which a judgment was granted and later revived

erred in concluding that, whatever the effect of the revivor under

the law of the state of origin, it could refuse enforcement of the

revived judgment; 23 (3) that the courts of one state have no jurisdiction to enjoin the enforcement of judgments at law obtained in

another state, when the same reasons assigned for granting the restraining order were passed upon on a motion for new trial in the

action at law and the motion denied; 24 (4) that the constitutional

mandate requires credit to be given to a money judgment rendered

in a civil cause of action in another state, even though the forum

state would have been under no duty to entertain the suit on which

the judgment was founded, because a state cannot, by the adoption

of a particular rule of liability or of procedure, exclude from its courts

a suit on a judgment; 25 and (5) that, similarly, tort claimants in

State A who obtain a judgment against a foreign insurance company, notwithstanding that, prior to judgment, domiciliary State B

appointed a liquidator for the company, vested company assets in

him, and ordered suits against the company stayed, are entitled to

have such judgment recognized in State B for purposes of determining the amount of the claim, although not for determination of what

priority, if any, their claim should have.26

Jurisdiction: A Prerequisite to Enforcement of Judgments

The jurisdictional question arises both in connection with judgments in personam against nonresident defendants to whom it is

alleged personal service was not obtained in the state originating

the judgment and in relation to judgments in rem against property

or a status alleged not to have been within the jurisdiction of the

22 Broderick v. Rosner, 294 U.S. 629 (1935), approved in Hughes v. Fetter, 341

U.S. 609 (1951).

23 Union Nat’l Bank v. Lamb, 337 U.S. 38 (1949); see also Roche v. McDonald,

275 U.S. 449 (1928).

24 Embry v. Palmer, 107 U.S. 3, 13 (1883).

25 Titus v. Wallick, 306 U.S. 282, 291–292 (1939).

26 Morris v. Jones, 329 U.S. 545 (1947). Moreover, there is no apparent reason

why Congress, acting on the implications of Marshall’s words in Hampton v. McConnell, 16 U.S. (3 Wheat.) 234 (1818), should not clothe extrastate judgments of any

particular type with the full status of domestic judgments of the same type in the

several states. Thus, why should not a judgment for alimony be made directly enforceable in sister states instead of merely furnishing the basis of an action in debt?

Sec. 1—Full Faith and Credit

934 ART. IV—STATES’ RELATIONS
court which handed down the original decree.27 Records and proceedings of courts wanting jurisdiction are not entitled to credit.28

Judgments in Personam.—When the subject matter of a suit

is merely the defendant’s liability, it is necessary that it should appear from the record that the defendant has been brought within

the jurisdiction of the court by personal service of process, or by

his voluntary appearance, or that he had in some manner authorized the proceeding.29 Thus, when a state court endeavored to acquire jurisdiction of a nonresident defendant by an attachment of

his property within the state and constructive notice to him, its judgment was defective for want of jurisdiction and hence could not afford the basis of an action against the defendant in the court of

another state, although it bound him so far as the property attached by virtue of the inherent right of a state to assist its own

citizens in obtaining satisfaction of their just claims.30

The fact that a nonresident defendant was only temporarily in

the state when he was served in the original action does not vitiate

the judgment thus obtained and later relied upon as the basis of

an action in his home state.31 Also a judgment rendered in the state

of his domicile against a defendant who, pursuant to the statute

thereof providing for the service of process on absent defendants,

was personally served in another state is entitled to full faith and

27 Cooper v. Reynolds, 77 U.S. (10 Wall.) 308 (1870); Western Union Tel. Co. v.

Pennsylvania, 368 U.S. 71 (1961). Full faith and credit extends to the issue of the

original court’s jurisdiction, when the second court’s inquiry discloses that the question of jurisdiction had been fully and fairly litigated and finally decided in the court

which rendered the original judgment. Durfee v. Duke, 375 U.S. 106 (1963); Underwriters Assur. Co. v. North Carolina Life Ins. Ass’n, 455 U.S. 691 (1982).

28 Board of Public Works v. Columbia College, 84 U.S. (17 Wall.) 521, 528 (1873).

See also Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291 (1888); Huntington v. Attrill, 146 U.S. 657, 685 (1892); Brown v. Fletcher’s Estate, 210 U.S. 82 (1908); Bigelow

v. Old Dominion Copper Co., 225 U.S. 111 (1912); Spokane Inland R.R. v. Whitley,

237 U.S. 487 (1915). However, a denial of credit, founded upon a mere suggestion of

want of jurisdiction and unsupported by evidence, violates the clause. See V.L. v.

E.L., 577 U.S. ___, No. 15–648, slip op. at 6 (2016) (per curiam) (holding that where

a Georgia judgment appeared on its face to have been issued by a court with jurisdiction and there was no established Georgia law to the contrary, the Alabama Supreme Court erred in refusing to grant the Georgia judgment full faith and credit);

see also Rogers v. Alabama, 192 U.S. 226, 231 (1904); Wells Fargo & Co. v. Ford,

238 U.S. 503 (1915).

29 Grover & Baker Machine Co. v. Radcliffe, 137 U.S. 287 (1890). See also Galpin

v. Page, 85 U.S. (18 Wall.) 350 (1874); Old Wayne Life Ass’n v. McDonough, 204 U.S.

8 (1907); Brown v. Fletcher’s Estate, 210 U.S. 82 (1908).

30 Pennoyer v. Neff, 95 U.S. 714 (1878). See, for a reformulation of this case’s

due process foundation, Shaffer v. Heitner, 433 U.S. 186 (1977).

31 Renaud v. Abbot, 116 U.S. 277 (1886); Jaster v. Currie, 198 U.S. 144 (1905);

Reynolds v. Stockton, 140 U.S. 254 (1891).

Sec. 1—Full Faith and Credit

ART. IV—STATES’ RELATIONS 935
credit.32 When the matter of fact or law on which jurisdiction depends was not litigated in the original suit, it is a matter to be

adjudicated in the suit founded upon the judgment.33

Because the principle of res judicata applies only to proceedings between the same parties and privies, the plea by defendant

in an action based on a judgment that he was not party or privy to

the original action raises the question of jurisdiction; although a

judgment against a corporation in one state may validly bind a stockholder in another state to the extent of the par value of his holdings,34 an administrator acting under a grant of administration in

one state stands in no sort of relation of privity to an administrator of the same estate in another state.35 But where a judgment of

dismissal was entered in a federal court in an action against one of

two joint tortfeasors, in a state in which such a judgment would

constitute an estoppel in another action in the same state against

the other tortfeasor, such judgment is not entitled to full faith and

credit in an action brought against the tortfeasor in another state.36

Service on Foreign Corporations.—In 1856, the Court decided Lafayette Ins. Co. v. French,

37 a pioneer case in its general

class. It held that, where a corporation chartered by the State of

Indiana was allowed by a law of Ohio to transact business in the

latter state upon the condition that service of process upon the agent

of the corporation should be considered as service upon the corporation itself, a judgment obtained against the corporation by means

of such process ought to receive in Indiana the same faith and credit

32 Milliken v. Meyer, 311 U.S. 457, 463 (1940). In the pioneer case of D’Arcy v.

Ketchum, 52 U.S. (1 How.) 165 (1851), the question presented was whether a judgment rendered by a New York court, under a statute which provided that, when

joint debtors were sued and one of them was brought into court on a process, a judgment in favor of the plaintiff would entitle him to execute against all, must be accorded full faith and credit in Louisiana when offered as a basis of an action in debt

against a resident of that state who had not been served by process in the New

York action. The Court ruled that the original implementing statute, 1 Stat. 122

(1790), did not reach this type of case, and hence the New York judgment was not

enforceable in Louisiana against defendant. Had the Louisiana defendant thereafter

ventured to New York, however, he could, as the Constitution then stood, have been

subjected to the judgment to the same extent as the New York defendant who had

been personally served. Subsequently, the disparity between operation of personal

judgment in the home state has been eliminated, because of the adoption of the Fourteenth Amendment. In divorce cases, however, it still persists in some measure. See

infra.

33 Adam v. Saenger, 303 U.S. 59, 62 (1938).

34 Hancock Nat’l Bank v. Farnum, 176 U.S. 640 (1900).

35 Stacy v. Thrasher, 47 U.S. (6 How.) 44, 58 (1848).

36 Bigelow v. Old Dominion Copper Co., 225 U.S. 111 (1912).

37 59 U.S. (18 How.) 404 (1856).

Sec. 1—Full Faith and Credit

936 ART. IV—STATES’ RELATIONS
as it was entitled to in Ohio.38 Later cases establish under both

the Fourteenth Amendment and Article IV, § 1, that the cause of

action must have arisen within the state obtaining service in this

way,39 that service on an officer of a corporation, not its resident

agent and not present in the state in an official capacity, will not

confer jurisdiction over the corporation,40 that the question whether

the corporation was actually “doing business” in the state may be

raised.41 On the other hand, the fact that the business was interstate is no objection.42

Service on Nonresident Motor Vehicle Owners.—By analogy to the above cases, it has been held that a state may require

nonresident owners of motor vehicles to designate an official within

the state as an agent upon whom process may be served in any

legal proceedings growing out of their operation of a motor vehicle

within the state.43 Although these cases arose under the Fourteenth Amendment alone, unquestionably a judgment validly obtained upon this species of service could be enforced upon the owner

of a car through the courts of his home state.

Judgments in Rem.—In sustaining the challenge to jurisdiction in cases involving judgments in personam, the Court in the main

was making only a somewhat more extended application of recognized principles. In order to sustain the same kind of challenge in

cases involving judgments in rem it has had to make law outright.

The leading case is Thompson v. Whitman.

44 Thompson, sheriff of

Monmouth County, New Jersey, acting under a New Jersey statute, had seized a sloop belonging to Whitman and by a proceeding

in rem had obtained its condemnation and forfeiture in a local court.

Later, Whitman, a citizen of New York, brought an action for trespass against Thompson in the United States Circuit Court for the

Southern District of New York, and Thompson answered by producing a record of the proceedings before the New Jersey tribunal. Whitman thereupon set up the contention that the New Jersey court

had acted without jurisdiction, inasmuch as the sloop which was

the subject matter of the proceedings had been seized outside the

38 To the same effect is Connecticut Mut. Life Ins. Co. v. Spratley, 172 U.S. 602

(1899).

39 Simon v. Southern Ry., 236 U.S. 115 (1915).

40 Goldey v. Morning News, 156 U.S. 518 (1895); Riverside Mills v. Menefee, 237

U.S. 189 (1915).

41 International Harvester v. Kentucky, 234 U.S. 579 (1914); Riverside Mills v.

Menefee, 237 U.S. 189 (1915).

42 International Harvester v. Kentucky, 234 U.S. 579 (1914).

43 Kane v. New Jersey, 242 U.S. 160 (1916); Hess v. Pawloski, 274 U.S. 352 (1927),

limited in Wuchter v. Pizzutti, 276 U.S. 13 (1928).

44 85 U.S. (18 Wall.) 457 (1874).

Sec. 1—Full Faith and Credit

ART. IV—STATES’ RELATIONS 937
county to which, by the statute under which it had acted, its jurisdiction was confined.

As previously explained, the plea of lack of privity cannot be

set up in defense in a sister state against a judgment in rem. In a

proceeding in rem, however, the presence of the res within the court’s

jurisdiction is a prerequisite, and this, it was urged, had not been

the case in Thompson v. Whitman. Could, then, the Court consider

this challenge with respect to a judgment which was offered, not as

the basis for an action for enforcement through the courts of a sister state but merely as a defense in a collateral action? As the law

stood in 1873, it apparently could not.45 All difficulties, nevertheless, to its consideration of the challenge to jurisdiction in the case

were brushed aside by the Court. Whenever, it said, the record of a

judgment rendered in a state court is offered “in evidence” by either of the parties to an action in another state, it may be contradicted as to the facts necessary to sustain the former court’s jurisdiction; “and if it be shown that such facts did not exist, the record

will be a nullity, notwithstanding the claim that they did exist.” 46

Divorce Decrees: Domicile as the Jurisdictional

Prerequisite

This, however, was only the beginning of the Court’s lawmaking in cases in rem. The most important class of such cases is that

in which the respondent to a suit for divorce offers in defense an

earlier decree from the courts of a sister state. By the almost universally accepted view prior to 1906, a proceeding in divorce was

one against the marriage status, i.e., in rem, and hence might be

validly brought by either party in any state where he or she was

bona fide domiciled; 47 and, conversely, when the plaintiff did not

have a bona fide domicile in the state, a court could not render a

decree binding in other states even if the nonresident defendant entered a personal appearance.48

45 1 H. BLACK, A TREATISE ON THE LAW OF JUDGMENTS § 246 (1891).

46 See also Simmons v. Saul, 138 U.S. 439, 448 (1891). In other words, the challenge to jurisdiction is treated as equivalent to the plea nul tiel record, a plea that

was recognized even in Mills v. Duryee as available against an attempted invocation of the full faith and credit clause. What is not pointed out by the Court is that

it was also assumed in the earlier case that such a plea could always be rebutted by

producing a transcript, properly authenticated in accordance with the act of Congress, of the judgment in the original case. See also Brown v. Fletcher’s Estate, 210

U.S. 82 (1908); German Savings Soc’y v. Dormitzer, 192 U.S. 125, 128 (1904); Grover & Baker Machine Co. v. Radcliffe, 137 U.S. 287, 294 (1890).

47 Cheever v. Wilson, 76 U.S. (9 Wall.) 108 (1870).

48 Andrews v. Andrews, 188 U.S. 14 (1903). See also German Savings Soc’y v.

Dormitzer, 192 U.S. 125 (1904).

Sec. 1—Full Faith and Credit

938 ART. IV—STATES’ RELATIONS
Divorce Suit: In Rem or in Personam; Judicial Indecision.—In 1906, however, by a vote of five to four, the Court departed from its earlier ruling, rendered five years previously in

Atherton v. Atherton,

49 and in Haddock v. Haddock,50 it announced

that a divorce proceeding might be viewed as one in personam. In

the former case it was held, in the latter case denied, that a divorce granted a husband without personal service upon the wife,

who at the time was residing in another state, was entitled to recognition under the full faith and credit clause and the acts of Congress; the difference between the cases consisted solely in the fact

that in the Atherton case the husband had driven the wife from

their joint home by his conduct, while in the Haddock case he had

deserted her. The court that granted the divorce in Atherton v. Atherton

was held to have had jurisdiction of the marriage status, with the

result that the proceeding was one in rem and hence required only

service by publication upon the respondent. Haddock’s suit, on the

contrary, was held to be as to the wife in personam and so to require personal service upon her or her voluntary appearance, neither of which had been had; although, notwithstanding this, the decree in the latter case was held to be valid in the state where obtained

because of the state’s inherent power to determine the status of its

own citizens. The upshot was a situation in which a man and a

woman, when both were in Connecticut, were divorced; when both

were in New York, were married; and when the one was in Connecticut and the other in New York, the former was divorced and the

latter married. In Atherton v. Atherton the Court had earlier acknowledged that “a husband without a wife, or a wife without a

husband, is unknown to the law.”

The practical difficulties and distresses likely to result from such

anomalies were pointed out by critics of the decision at the time.

In point of fact, they have been largely avoided, because most of

the state courts have continued to give judicial recognition and full

faith and credit to one another’s divorce proceedings on the basis

of the older idea that a divorce proceeding is one in rem, and that

if the applicant is bona fide domiciled in the state the court has

jurisdiction in this respect. Moreover, until the second of the Williams v. North Carolina cases 51 was decided in 1945, there had not

been manifested the slightest disposition to challenge judicially the

power of the states to determine what shall constitute domicile for

divorce purposes. A few years before, the Court in Davis v. Davis 52

49 181 U.S. 155, 162 (1901).

50 201 U.S. 562 (1906).

51 317 U.S. 287 (1942) 325 U.S. 226 (1945).

52 305 U.S. 32 (1938).

Sec. 1—Full Faith and Credit

ART. IV—STATES’ RELATIONS 939
rejected contentions adverse to the validity of a Virginia decree of

which enforcement was sought in the District of Columbia. In this

case, a husband, after having obtained in the District a decree of

separation subject to payment of alimony, established years later a

residence in Virginia and sued there for a divorce. Personally served

in the District, where she continued to reside, the wife filed a plea

denying that her husband was a resident of Virginia and averred

that he was guilty of a fraud on the court in seeking to establish a

residence for purposes of jurisdiction. In ruling that the Virginia

decree, granting to the husband an absolute divorce minus any alimony payment, was enforceable in the District, the Court stated

that in view of the wife’s failure, while in Virginia litigating her

husband’s status to sue, to answer the husband’s charges of willful

desertion, it would be unreasonable to hold that the husband’s domicile in Virginia was not sufficient to entitle him to a divorce effective in the District. The finding of the Virginia court on domicile

and jurisdiction was declared to bind the wife. Davis v. Davis is

distinguishable from the Williams v. North Carolina decisions in that

in the former determination of the jurisdictional prerequisite of domicile was made in a contested proceeding whereas in the Williams cases it was not.

Williams I and Williams II.—In Williams I and Williams II,

the husband of one marriage and the wife of another left North Carolina, obtained six-week divorce decrees in Nevada, married there,

and resumed their residence in North Carolina where both previously had been married and domiciled. Prosecuted for bigamy, the

defendants relied upon their Nevada decrees and won the preliminary round of this litigation, that is, in Williams I,53 when a majority of the Justices, overruling Haddock v. Haddock, declaring that

in this case, the Court must assume that the petitioners for divorce had a bona fide domicile in Nevada and not that their Nevada domicile was a sham. “[E]ach State, by virtue of its command

over the domiciliaries and its large interest in the institution of marriage, can alter within its own borders the marriage status of the

spouse domiciled there, even though the other spouse is absent. There

is no constitutional barrier if the form and nature of substituted

service meet the requirements of due process.” Accordingly, a decree granted by Nevada to one, who, it is assumed, is at the time

bona fide domiciled therein, is binding upon the courts of other states,

including North Carolina in which the marriage was performed and

where the other party to the marriage is still domiciled when the

divorce was decreed. In view of its assumptions, which it justified

53 317 U.S. 287, 298–99 (1942).

Sec. 1—Full Faith and Credit

940 ART. IV—STATES’ RELATIONS
on the basis of an inadequate record, the Court did not here pass

upon the question whether North Carolina had the power to refuse

full faith and credit to a Nevada decree because it was based on

residence rather than domicile or because, contrary to the findings

of the Nevada court, North Carolina found that no bona fide domicile had been acquired in Nevada.54

Presaging what ruling the Court would make when it did get

around to passing upon the latter question, Justice Jackson, dissenting in Williams I, protested that “this decision repeals the divorce

laws of all the states and substitutes the law of Nevada as to all

marriages one of the parties to which can afford a short trip there. . . .

While a state can no doubt set up its own standards of domicile as

to its internal concerns, I do not think it can require us to accept

and in the name of the Constitution impose them on other states. . . .

The effect of the Court’s decision today—that we must give extraterritorial effect to any judgment that a state honors for its own

purposes—is to deprive this Court of control over the operation of

the full faith and credit and the due process clauses of the Federal

Constitution in cases of contested jurisdiction and to vest it in the

first state to pass on the facts necessary to jurisdiction.” 55

Notwithstanding that one of the deserted spouses had died since

the initial trial and that another had remarried, North Carolina,

without calling into question the status of the latter marriage, began a new prosecution for bigamy; when the defendants appealed

the conviction resulting therefrom, the Supreme Court, in Williams

II,56 sustained the adjudication of guilt as not denying full faith and

credit to the Nevada divorce decree. Reiterating the doctrine that

jurisdiction to grant divorce is founded on domicile,57 the Court held

that a decree of divorce rendered in one state may be collaterally

impeached in another by proof that the court that rendered the decree lacked jurisdiction (the parties not having been domiciled therein),

even though the record of proceedings in that court purports to show

jurisdiction.58

54 317 U.S. at 302.

55 317 U.S. at 312, 321, 315.

56 325 U.S. 226, 229 (1945).

57 Bell v. Bell, 181 U.S. 175 (1901); Andrews v. Andrews, 188 U.S. 14 (1903).

58 Strong dissents were filed, which have influenced subsequent holdings. Among

these was that of Justice Rutledge, which attacked both the consequences of the

decision as well as the concept of jurisdictional domicile on which it was founded:

“Unless ‘matrimonial domicil,’ banished in Williams I [by the overruling of Haddock v. Haddock], has returned renamed [‘domicil of origin’] in Williams II, every

decree becomes vulnerable in every state. Every divorce, wherever granted . . . may

now be reexamined by every other state, upon the same or different evidence, to

redetermine the ‘jurisdiction fact,’ always the ultimate conclusion of ‘domicil.’ . . . ”

325 U.S. at 248.

Sec. 1—Full Faith and Credit

ART. IV—STATES’ RELATIONS 941
Cases Following Williams II.—Fears registered by the dissenters in the second Williams case that it might undermine the

stability of all divorces and that the court of each forum state, by

its own independent determination of domicile, might refuse recognition of foreign decrees, were temporarily set at rest by Sherrer v.

Sherrer,

59 which required Massachusetts, a state of domiciliary origin, to accord full faith and credit to a 90-day Florida decree that

the husband had contested. The husband, upon receiving notice by

mail, retained Florida counsel who entered a general appearance

and denied all allegations in the complaint, including the wife’s residence. At the hearing, the husband, though present in person and

by counsel, did not offer evidence in rebuttal of the wife’s proof of

her Florida residence, and, when the Florida court ruled that she

was a bona fide resident, the husband did not appeal. Because the

findings of the requisite jurisdictional facts, unlike those in the second Williams case, were made in proceedings in which the defendant appeared and participated, the requirements of full faith and

credit were held to bar him from collaterally attacking such findings in a suit instituted by him in his home state of Massachu-

“The Constitution does not mention domicil. Nowhere does it posit the powers

of the states or the nation upon that amorphous, highly variable common law conception. . . . No legal conception, save possibly ‘jurisdiction’ . . . affords such possibilities for uncertain application. . . . Apart from the necessity for travel, [to effect

a change of domicile, the latter] criterion comes down to a purely subjective mental

state, related to remaining for a length of time never yet defined with clarity. . . .

When what must be proved is a variable, the proof and the conclusion which follows

upon it inevitably take on that character. . . . [The majority has] not held that denial of credit will be allowed, only if the evidence [as to the place of domicile] is

different or depending in any way upon the character or the weight of the difference. The test is not different evidence. It is evidence, whether the same or different

and, if different, without regard to the quality of the difference, from which an opposing set of inferences can be drawn by the trier of fact ‘not unreasonably.’ . . . But

[the Court] does not define ‘not unreasonably.’ It vaguely suggests a supervisory function, to be exercised when the denial [of credit] strikes its sensibilities as wrong, by

some not stated standard. . . . There will be no ‘weighing’ [of evidence]. There will

be only examination for sufficiency, with the limits marked by ‘scintillas’ and the

like.” 325 U.S. at 255, 258, 259, 251.

No less disposed to prophesy undesirable results from this decision was Justice

Black whose dissenting opinion Justice Douglas joined:

“[T]oday, as to divorce decrees, [the Full Faith and Credit Clause] . . . has become a nationally disruptive force. . . . [T]he Court has in effect [held] . . . that ‘the

full faith and credit clause does not apply to actions for divorce, and that the states

alone have the right to determine what effect shall be given to the decrees of other

states in this class of cases.’ . . . If the Court is today abandoning that principle

. . . that a marriage validly consummated under one state’s laws is valid in every

other state [, then a] . . . consequence is to subject people to criminal prosecutions

for adultery and bigamy merely because they exercise their constitutional right to

pass from a state in which they were validly married on to another state which

refuses to recognize their marriage. Such a consequence runs counter to the basic

guarantees of our federal union.” 325 U.S. at 264, 265.

59 334 U.S. 343 (1948).

Sec. 1—Full Faith and Credit

942 ART. IV—STATES’ RELATIONS
setts, particularly in the absence of proof that the divorce decree

was subject to such collateral attack in a Florida court. Having failed

to take advantage of the opportunities afforded him by his appearance in the Florida proceeding, the husband was thereafter precluded from relitigating in another state the issue of his wife’s domicile already passed upon by the Florida court.

In Coe v. Coe,

60 embracing a similar set of facts, the Court applied like reasoning to reach a similar result. Massachusetts again

was compelled to recognize the validity of a six-week Nevada decree obtained by a husband who had left Massachusetts after a court

of that state had refused him a divorce and had granted his wife

separate support. In the Nevada proceeding, the wife appeared personally and by counsel filed a cross-complaint for divorce, admitted

the husband’s residence, and participated personally in the proceedings. After finding that it had jurisdiction of the plaintiff, defendant, and the subject matter involved, the Nevada court granted

the wife a divorce, which was valid, final, and not subject to collateral attack under Nevada law. The husband married again, and on

his return to Massachusetts, his ex-wife petitioned the Massachusetts court to adjudge him in contempt for failing to make payments for her separate support under the earlier Massachusetts decree. Inasmuch as there was no intimation that under Massachusetts

law a decree of separate support would survive a divorce, recognition of the Nevada decree as valid accordingly necessitated a rejection of the ex-wife’s contention.

Appearing to review Williams II, and significant for the social

consequences produced by the result it decreed, is Rice v. Rice.

61 To

60 334 U.S. 378 (1948). In a dissenting opinion filed in Sherrer v. Sherrer, but

applicable also to Coe v. Coe, Justice Frankfurter, with Justice Murphy concurring,

asserted his inability to accept the proposition advanced by the majority that “regardless of how overwhelming the evidence may have been that the asserted domicile in the State offering bargain-counter divorces was a sham, the home State of

the parties is not permitted to question the matter if the form of a controversy has

been gone through.” 334 U.S. at 377.

61 336 U.S. 674 (1949). Of four justices dissenting, Black, Douglas, Rutledge, and

Jackson, Justice Jackson alone filed a written opinion. To him the decision was “an

example of the manner in which, in the law of domestic relations, ‘confusion now

hath made his masterpiece,’ . . . I think that the judgment of the Connecticut court,

but for the first Williams case and its progeny, might properly have held that the

Rice divorce decree was void for every purpose because it was rendered by a state

court which never obtained jurisdiction of the nonresident defendant and which had

no power to reach into another state and summon her before it. But if we adhere to

the holdings that the Nevada court had power over her for the purpose of blasting

her marriage and opening the way to a successor, I do not see the justice of inventing a compensating confusion in the device of divisible divorce by which the parties

are half-bound and half-free and which permits Rice to have a wife who cannot become his widow and to leave a widow who was no longer his wife.” Id. at 676, 679–

680.

Sec. 1—Full Faith and Credit

ART. IV—STATES’ RELATIONS 943
determine the widowhood status of the party litigants in relation

to inheritance of property of a husband who had deserted his first

wife in Connecticut, had obtained an ex parte divorce in Nevada,

and after remarriage, had died without ever returning to Connecticut, the first wife, joining the second wife and the administrator of

his estate as defendants, petitioned a Connecticut court for a declaratory judgment. After having placed upon the first wife the burden of proving that the decedent had not acquired a bona fide domicile in Nevada, and after giving proper weight to the claims of

power by the Nevada court, the Connecticut court concluded that

the evidence sustained the contentions of the first wife, and in so

doing, it was upheld by the Supreme Court. Sherrer v. Sherrer and

Coe v. Coe, previously discussed, were declared not to be in point,

because no personal service had been made upon the first wife, nor

had she in any way participated in the Nevada proceedings. She

was not, therefore, precluded from challenging the findings of the

Nevada court that the decedent was, at the time of the divorce, domiciled in that state.62

Claims for Alimony or Property in Forum State.—In Esenwein

v. Commonwealth,

63 decided on the same day as the second Williams case, the Supreme Court also sustained a Pennsylvania court

in its refusal to recognize an ex parte Nevada decree on the ground

that the husband who obtained it never acquired a bona fide domicile in the latter state. In this instance, the husband and wife had

separated in Pennsylvania, where the wife was granted a support

order; after two unsuccessful attempts to win a divorce in that state,

the husband departed for Nevada. Upon the receipt of a Nevada

decree, the husband thereafter established a residence in Ohio and

filed an action in Pennsylvania for total relief from the support order. In a concurring opinion, in which he was joined by Justice Black,

Justice Douglas stressed the “basic difference between the problem

of marital capacity and the problem of support,” and stated that it

was “not apparent that the spouse who obtained the decree can de62 Vermont violated the clause in sustaining a collateral attack on a Florida divorce decree, the presumption of Florida’s jurisdiction over the cause and the parties not having been overcome by extrinsic evidence or the record of the case. Cook

v. Cook, 342 U.S. 126 (1951). Sherrer and Coe were relied upon. There seems, therefore, to be no doubt of their continued vitality.

A Florida divorce decree was also at the bottom of another case in which the

daughter of a divorced man by his first wife and his legatee under his will sought to

attack his divorce in the New York courts and thereby indirectly his third marriage.

The Court held that, because the attack would not have been permitted in Florida

under the doctrine of res judicata, it was not permissible under the Full Faith and

Credit Clause in New York. On the whole, it appears that the principle of res judicata

is slowly winning out against the principle of domicile. Johnson v. Muelberger, 340

U.S. 581 (1951).

63 325 U.S. 279 (1945).

Sec. 1—Full Faith and Credit

944 ART. IV—STATES’ RELATIONS
feat an action for maintenance or support in another State by showing that he was domiciled in the State which awarded him the divorce decree,” unless the other spouse appeared or was personally

served. “The State where the deserted wife is domiciled has a deep

concern in the welfare of the family deserted by the head of the

household. If he is required to support his former wife, he is not

made a bigamist and the offspring of his second marriage are not

bastardized.” Or, as Justice Rutledge succinctly stated in a concurring opinion, “the jurisdictional foundation for a decree in one state

capable of foreclosing an action for maintenance or support in another may be different from that required to alter the marital status with extraterritorial effect.” 64

Three years later, but on this occasion speaking for a majority

of the Court, Justice Douglas reiterated these views in Estin v. Estin.

65

In this case, a New York court had granted a wife a decree of separation and awarded her alimony. Subsequently, in Nevada, her husband obtained an ex parte divorce decree, which made no provision

for alimony. He ceased paying the New York-awarded alimony, and

the wife sued him in New York. The husband argued that the Nevada decree had wiped out the alimony claim, but Justice Douglas

found that “Nevada had no power to adjudicate [the wife’s] rights

in the New York judgment, [and] New York need not give full faith

and credit to that phase of Nevada’s judgment. . . . . The result in

this situation is to make the divorce divisible—to give effect to the

Nevada decree insofar as it affects marital status and to make it

ineffective on the issue of alimony.” 66 Accordingly, the Nevada decree could not prevent New York from applying its own rule of law

which, unlike that of Pennsylvania,67 does permit a support order

to survive a divorce decree.68

64 325 U.S. at 281–83.

65 334 U.S. 541 (1948). See also the companion case of Kreiger v. Kreiger, 334

U.S. 555 (1948).

66 334 U.S. at 549.

67 Esenwein v. Commonwealth, 325 U.S. 279, 280 (1945).

68 Because the record, in his opinion, did not make it clear whether New York

“law” held that no “ex parte” divorce decree could terminate a prior New York separate maintenance decree, or merely that no “ex parte” decree of divorce of another

State could, Justice Frankfurter dissented and recommended that the case be remanded for clarification. Justice Jackson dissented on the ground that under New

York law, a New York divorce would terminate the wife’s right to alimony, and if the

Nevada decree is good, it was entitled to no less effect in New York than a local

decree. However, for reasons stated in his dissent in the first Williams case, 317

U.S. 287, he would have preferred not to give standing to constructive service divorces obtained on short residence. 334 U.S. 541, 549–54 (1948). These two Justices

filed similar dissents in the companion case of Kreiger v. Kreiger, 334 U.S. 555, 557

(1948).

Sec. 1—Full Faith and Credit

ART. IV—STATES’ RELATIONS 945
Such a result was justified as “accommodat[ing] the interests

of both Nevada and New York in this broken marriage by restricting each State to the matters of her dominant concern,” 69 the concern of New York being that of protecting the abandoned wife against

impoverishment. In Simons v. Miami National Bank,

70 the Court

held that a dower right in the deceased husband’s estate is extinguished even though a divorce decree was obtained in a proceeding

in which the nonresident wife was served by publication only and

did not make a personal appearance.71 The Court found the principle of Estin v. Estin 72 inapplicable. In Simons, the Court rejected

the contention that the forum court, in giving recognition to the foreign court’s separation decree providing for maintenance and support, has to allow for dower rights in the deceased husband’s estate

in the forum state.73 Full faith and credit is not denied to a sister

state’s separation decree, including an award of monthly alimony,

where nothing in the foreign state’s separation decree could be construed as creating or preserving any interest in the nature of or in

lieu of dower in any property of the decedent, wherever located and

where the law of the forum state did not treat such a decree as

having such effect nor indicate such an effect irrespective of the existence of the foreign state’s decree.74

Decrees Awarding Alimony, Custody of Children.—A byproduct of divorce litigation are decrees for the payment of alimony, judgments for accrued and unpaid installments of alimony,

and judicial awards of the custody of children, all of which necessitate application of the Full Faith and Credit Clause when extrastate

enforcement is sought for them. Thus, a judgment in State A for

alimony in arrears and payable under a prior judgment of separation that is not by its terms conditional nor subject by the law of

State A to modification or recall, and on which execution was directed to issue, is entitled to recognition in the forum state. Although an obligation for accrued alimony could have been modified

or set aside in State A prior to its merger in the judgment, such a

judgment, by the law of State A, is not lacking in finality.75 As to

the finality of alimony decrees in general, the Court had previously

ruled that where such a decree is rendered, payable in future installments, the right to such installments becomes absolute and vested

on becoming due, provided no modification of the decree has been

69 334 U.S. at 549.

70 381 U.S. 81 (1965).

71 381 U.S. at 84–85.

72 334 U.S. 541 (1948).

73 381 U.S. at 84–85.

74 381 U.S. at 85.

75 Barber v. Barber, 323 U.S. 77, 84 (1944).

Sec. 1—Full Faith and Credit

946 ART. IV—STATES’ RELATIONS
made prior to the maturity of the installments.76 However, a judicial order requiring the payment of arrearages in alimony, which

exceeded the alimony previously decreed, is invalid for want of due

process, the respondent having been given no opportunity to contest it.77 “A judgment obtained in violation of procedural due process,” said Chief Justice Stone, “is not entitled to full faith and credit

when sued upon in another jurisdiction.” 78

An example of a custody case was one involving a Florida divorce decree that was granted ex parte to a wife who had left her

husband in New York, where he was served by publication. The decree carried with it an award of the exclusive custody of the child,

whom the day before the husband had secretly seized and brought

back to New York. The Court ruled that the decree was adequately

honored by a New York court when, in habeas corpus proceedings,

it gave the father rights of visitation and custody of the child during stated periods and exacted a surety bond of the wife conditioned on her delivery of the child to the father at the proper times,79

it having not been “shown that the New York court in modifying

the Florida decree exceeded the limits permitted under Florida laws.

There is therefore a failure of proof that the Florida decree received less credit in New York than it had in Florida.”

Answering a question left open in the preceding holding as to

the binding effect of the ex parte award, the Court more recently

acknowledged that, in a proceeding challenging a mother’s right to

retain custody of her children, a state is not required to give effect

to the decree of another state’s court, which had never acquired personal jurisdiction over the mother of her children, and which awarded

custody to the father as the result of an ex parte divorce action in76 Sistare v. Sistare, 218 U.S. 1, 11 (1910). See also Barber v. Barber, 62 U.S.

(21 How.) 582 (1859); Lynde v. Lynde, 181 U.S. 183, 186–187 (1901); Audubon v.

Shufeldt, 181 U.S. 575, 577 (1901); Bates v. Bodie, 245 U.S. 520 (1918); Yarborough

v. Yarborough, 290 U.S. 202 (1933); Loughran v. Loughran, 292 U.S. 216 (1934).

77 Griffin v. Griffin, 327 U.S. 220 (1946).

78 327 U.S. at 228. An alimony case of a quite extraordinary pattern was that of

Sutton v. Leib, 342 U.S. 402 (1952). Because of the diverse citizenship of the parties, who had once been husband and wife, the case was brought by the latter in a

federal court in Illinois. Her suit was to recover unpaid alimony that was to continue until her remarriage. To be sure, she had, as she confessed, remarried in Nevada, but the marriage had been annulled in New York on the ground that the man

was already married, because his divorce from his previous wife was null and void,

she having neither entered a personal appearance nor been personally served. The

Court, speaking by Justice Reed, held that the New York annulment of the Nevada

marriage must be given full faith and credit in Illinois but left Illinois to decide for

itself the effect of the annulment upon the obligations of petitioner’s first husband.

79 Halvey v. Halvey, 330 U.S. 610, 615 (1947).

Sec. 1—Full Faith and Credit

ART. IV—STATES’ RELATIONS 947
stituted by him.80 In Kovacs v. Brewer,

81 however, the Court indicated that a finding of changed circumstances rendering observance of an absentee foreign custody decree inimical to the best

interests of the child is essential to sustain the validity of the forum court’s refusal to enforce a foreign decree, rendered with jurisdiction over all the parties but the child, and revising an initial decree by transferring custody from the paternal grandfather to the

mother. However, when, as is true in Virginia, agreements by parents as to shared custody of a child do not bind the state’s courts,

the dismissal by a Virginia court of a habeas corpus petition instituted by a father to obtain custody was not res judicata in that state;

therefore, even if the Full Faith and Credit Clause were applicable

to child custody decrees, it would not require a South Carolina court,

in a custody suit instituted by the wife, to recognize a court order

not binding in Virginia.82

Status of the Law.—The doctrine of divisible divorce, as developed by Justice Douglas in Estin v. Estin,

83 may have become the

prevailing standard for determining the enforceability of foreign divorce decrees. If this is the case, then it may be that an ex parte

divorce, founded upon acquisition of domicile by one spouse in the

state that granted it, is effective to destroy the marital status of

both parties in the state of domiciliary origin and probably in all

other states. The effect is to preclude subsequent prosecutions for

bigamy but not to alter rights as to property, alimony, or custody of

children in the state of domiciliary origin of a spouse who neither

was served nor appeared personally.

In any event, the accuracy of these conclusions has not been

impaired by any decision of the Court since 1948. Thus, in Armstrong

v. Armstrong,

84 an ex parte divorce decree obtained by the husband

in Florida was deemed to have been adequately recognized by an

Ohio court when, with both parties before it, it disposed of the wife’s

suit for divorce and alimony with a decree limited solely to an award

80 May v. Anderson, 345 U.S. 528 (1953). Justices Jackson, Reed, and Minton

dissented.

81 356 U.S. 604 (1958). Rejecting the implication that recognition must be accorded unless the circumstances have changed, Justice Frankfurter dissented on the

ground that in determining what is best for the welfare of the child, the forum court

cannot be bound by an absentee, foreign custody decree, “irrespective of whether

changes in circumstances are objectively provable.”

82 Ford v. Ford, 371 U.S. 187, 192–94 (1962). As part of a law dealing with parental kidnaping, Congress, in Pub. L. 96–611, 8(a), 94 Stat. 3569, 28 U.S.C. § 1738A,

required states to give full faith and credit to state court custody decrees provided

the original court had jurisdiction and is the home state of the child.

83 334 U.S. 541 (1948).

84 350 U.S. 568 (1956).

Sec. 1—Full Faith and Credit

948 ART. IV—STATES’ RELATIONS
of alimony.85 Similarly, a New York court was held not bound by an

ex parte Nevada divorce decree, rendered without personal jurisdiction over the wife, to the extent that it relieved the husband of all

marital obligations, and in an ex parte action for separation and

alimony instituted by the wife, it was competent to sequester the

husband’s property in New York to satisfy his obligations to the wife.86

Other Types of Decrees

Probate Decrees.—Many judgments, enforcement of which has

given rise to litigation, embrace decrees of courts of probate respecting the distribution of estates. In order that a court have jurisdiction of such a proceeding, the decedent must have been domiciled

in the state, and the question whether he was so domiciled at the

time of his death may be raised in the court of a sister state.87 Thus,

when a court of State A, in probating a will and issuing letters, in

a proceeding to which all distributees were parties, expressly found

that the testator’s domicile at the time of death was in State A,

such adjudication of domicile was held not to bind one subsequently appointed as domiciliary administrator c.t.a. in State B, in

which he was liable to be called upon to deal with claims of local

creditors and that of the State itself for taxes, he having not been

a party to the proceeding in State A. In this situation, it was held,

a court of State C, when disposing of local assets claimed by both

personal representatives, was free to determine domicile in accordance with the law of State C.88

Similarly, there is no such relation of privity between an executor appointed in one state and an administrator c.t.a. appointed in

another state as will make a decree against the latter binding upon

the former.89 On the other hand, judicial proceedings in one state,

under which inheritance taxes have been paid and the administration upon the estate has been closed, are denied full faith and credit

by the action of a probate court in another state in assuming jurisdiction and assessing inheritance taxes against the beneficiaries of

85 Four Justices, Black, Douglas, Clark, and Chief Justice Warren, disputed the

Court’s contention that the Florida decree contained no ruling on the wife’s entitlement to alimony and mentioned that for want of personal jurisdiction over the wife,

the Florida court was not competent to dispose of that issue. 350 U.S. at 575.

86 Vanderbilt v. Vanderbilt, 354 U.S. 416 (1957). Two Justices dissented. Justice

Frankfurter was unable to perceive “why dissolution of the marital relation is not

so personal as to require personal jurisdiction over the absent spouse, while the denial of alimony . . . is.” Justice Harlan maintained that, because the wife did not

become a domiciliary of New York until after the Nevada decree, she had no predivorce rights in New York that the latter was obligated to protect.

87 Tilt v. Kelsey, 207 U.S. 43 (1907); Burbank v. Ernst, 232 U.S. 162 (1914).

88 Riley v. New York Trust Co., 315 U.S. 343 (1942).

89 Brown v. Fletcher’s Estate, 210 U.S. 82, 90 (1908). See also Stacy v. Thrasher,

47 U.S. (6 How.) 44, 58 (1848); McLean v. Meek, 59 U.S. (18 How.) 16, 18 (1856).

Sec. 1—Full Faith and Credit

ART. IV—STATES’ RELATIONS 949
the estate, when under the law of the former state the order of the

probate court barring all creditors who had failed to bring in their

demand from any further claim against the executors was binding

upon all.90 What is more important, however, is that the res in such

a proceeding, that is, the estate, in order to entitle the judgment to

recognition under Article IV, 1, must have been located in the state

or legally attached to the person of the decedent. Such a judgment

is accordingly valid, generally speaking, to distribute the intangible property of the decedent, though the evidences thereof were

actually located elsewhere.91 This is not so, on the other hand, as

to tangibles and realty. In order that the judgment of a probate court

distributing these be entitled to recognition under the Constitution, they must have been located in the state; as to tangibles and

realty outside the state, the decree of the probate court is entirely

at the mercy of the lex rei sitae.

92 So, the probate of a will in one

state, while conclusive in that state, does not displace legal provisions necessary to its validity as a will of real property in other

states.93

Adoption Decrees.—That a statute legitimizing children born

out of wedlock does not entitle them by the aid of the Full Faith

and Credit Clause to share in the property located in another state

is not surprising, in view of the general principle (to which there

are exceptions) that statutes do not have extraterritorial operation.94 For the same reason, adoption proceedings in one state are

not denied full faith and credit by the law of the sister state that

excludes children adopted by proceedings in other states from the

right to inherit land in the sister state.95

Garnishment Decrees.—Garnishment proceedings combine some

of the elements of both an in rem and an in personam action. Sup90 Tilt v. Kelsey, 207 U.S. 43 (1907). In the case of Borer v. Chapman, 119 U.S.

587, 599 (1887), involving a complicated set of facts, it was held that a judgment in

a probate proceeding, which was merely ancillary to proceedings in another State

and which ordered the residue of the estate to be assigned to the legatee and discharged the executor from further liability, did not prevent a creditor, who was not

a resident of the State in which the ancillary judgment was rendered, from setting

up his claim in the state probate court which had the primary administration of the

estate.

91 Blodgett v. Silberman, 277 U.S. 1 (1928).

92 Kerr v. Moon, 22 U.S. (9 Wheat.) 565 (1824); McCormick v. Sullivant, 23 U.S.

(10 Wheat.) 192 (1825); Clarke v. Clarke, 178 U.S. 186 (1900). The controlling principle of these cases is not confined to proceedings in probate. A court of equity “not

having jurisdiction of the res cannot affect it by its decree nor by a deed made by a

master in accordance with the decree.” Fall v. Eastin, 215 U.S. 1, 11 (1909).

93 Robertson v. Pickrell, 109 U.S. 608, 611 (1883). See also Darby v. Mayer, 23

U.S. (10 Wheat.) 465 (1825); Gasquet v. Fenner, 247 U.S. 16 (1918).

94 Olmstead v. Olmstead, 216 U.S. 386 (1910).

95 Hood v. McGehee, 237 U.S. 611 (1915).

Sec. 1—Full Faith and Credit

950 ART. IV—STATES’ RELATIONS
pose that A owes B and B owes C, and that the two former live in

a different state from C. A, while on a brief visit to C’s state, is

presented with a writ attaching his debt to B and also a summons

to appear in court on a named day. The result of the proceedings

thus instituted is that a judgment is entered in C’s favor against A

to the amount of his indebtedness to B. Subsequently A is sued by

B in their home state and offers the judgment, which he has in the

meantime paid, in defense. It was argued on behalf of B that A’s

debt to him had a situs in their home state and furthermore that C

could not have sued B in this same state without formally acquiring a domicile there. Both propositions were, however, rejected by

the Court, which held that the judgment in the garnishment proceedings was entitled to full faith and credit as against B’s action.96

Penal Judgments: Types Entitled to Recognition

The Full Faith and Credit Clause has been interpreted in the

light of the “incontrovertible maxim” that “the courts of no country

execute the penal laws of another.” 97 In the leading case of Huntington v. Attrill,

98 however, the Court so narrowly defined “penal”

in this connection as to make it substantially synonymous with “criminal” and on this basis held a judgment which had been recovered

under a state statute making the officers of a corporation who signed

and recorded a false certificate of the amount of its capital stock

liable for all of its debts to be entitled under Article IV, § 1, to recognition and enforcement in the courts of sister states. Nor, in general, is a judgment for taxes to be denied full faith and credit in

state and federal courts merely because it is for taxes. In Nelson v.

George,

99 in which a prisoner was tried in California and North Carolina and convicted and sentenced in both states for various felonies, the Court determined that the Full Faith and Credit Clause

did not require California to enforce a penal judgment handed down

by North Carolina; California was free to consider what effect if any

it would give to the North Carolina detainer.100 Until the obligation to extradite matured, the Full Faith and Credit Clause did not

96 Harris v. Balk, 198 U.S. 215 (1905). See also Chicago, R.I. & P. Ry. v. Sturm,

174 U.S. 710 (1899); King v. Cross, 175 U.S. 396, 399 (1899); Louisville & Nashville

Railroad v. Deer, 200 U.S. 176 (1906); Baltimore & Ohio R.R. v. Hostetter, 240 U.S.

620 (1916). Harris itself has not survived the due process reformulation of Shaffer

v. Heitner, 433 U.S. 186 (1977). See Rush v. Savchuk, 444 U.S. 320 (1980).

97 The Antelope, 23 U.S. (10 Wheat.) 66, 123 (1825). See also Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).

98 146 U.S. 657 (1892). See also Dennick v. Railroad Co., 103 U.S. 11 (1881);

Moore v. Mitchell, 281 U.S. 18 (1930); Milwaukee County v. White Co., 296 U.S. 268

(1935).

99 399 U.S. 224 (1970).

100 399 U.S. at 229.

Sec. 1—Full Faith and Credit

ART. IV—STATES’ RELATIONS 951
require California to enforce the North Carolina penal judgment in

any way.

Fraud as a Defense to Suits on Foreign Judgments

With regard to whether recognition of a state judgment can be

refused by the forum state on other than jurisdictional grounds, there

are dicta to the effect that judgments for which extraterritorial operation is demanded under Article IV, § 1 and acts of Congress are

“impeachable for manifest fraud.” But unless the fraud affected the

jurisdiction of the court, the vast weight of authority is against the

proposition. Also, it is universally agreed that a judgment may not

be impeached for alleged error or irregularity,101 or as contrary to

the public policy of the state where recognition is sought for it under the Full Faith and Credit Clause.102 Previously listed cases indicate, however, that the Court in fact has permitted local policy to

determine the merits of a judgment under the pretext of regulating

jurisdiction.103 Thus, in Cole v. Cunningham,

104 the Court sustained a Massachusetts court in enjoining, in connection with insolvency proceedings instituted in that state, a Massachusetts creditor from continuing in New York courts an action that had been

commenced there before the insolvency suit was brought. This was

done on the theory that a party within the jurisdiction of a court

may be restrained from doing something in another jurisdiction opposed to principles of equity, it having been shown that the creditor was aware of the debtor’s embarrassed condition when the New

York action was instituted. The injunction unquestionably denied

full faith and credit and commanded the assent of only five Justices.

RECOGNITION OF RIGHTS BASED UPON

CONSTITUTIONS, STATUTES, COMMON LAW

Development of the Modern Rule

Although the language of section one suggests that the same

respect should be accorded to “public acts” that is accorded to “judicial proceedings” (“full faith and credit shall be given in each State

to the public acts, records, and judicial proceedings of every other

State”), and the Court has occasionally relied on this parity of treat101 Christmas v. Russell, 72 U.S. (5 Wall.) 290 (1866); Maxwell v. Stewart, 88

U.S. (21 Wall.) 71 (1875); Hanley v. Donoghue, 116 U.S. 1 (1885); Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888); Simmons v. Saul, 138 U.S. 439 (1891); American

Express Co. v. Mullins, 212 U.S. 311 (1909).

102 Fauntleroy v. Lum, 210 U.S. 230 (1908).

103 Anglo-American Prov. Co. v. Davis Prov. Co., 191 U.S. 373 (1903).

104 133 U.S. 107 (1890).

Sec. 1—Full Faith and Credit

952 ART. IV—STATES’ RELATIONS
ment,105 the Court has usually differentiated “the credit owed to

laws (legislative measures and common law) and to judgments.” 106

The current understanding is that the Full Faith and Credit Clause

is “exacting” with respect to final judgments of courts, but “is less

demanding with respect to choice of laws.” 107

The Court has explained that, where a statute or policy of the

forum state is set up as a defense to a suit brought under the statute of another state or territory, or where a foreign statute is set

up as a defense to a suit or proceedings under a local statute, the

conflict is to be resolved, not by giving automatic effect to the Full

Faith and Credit Clause and thus compelling courts of each state

to subordinate their own statutes to those of others, but by weighing the governmental interests of each jurisdiction.108 That is, the

Full Faith and Credit Clause, in its design to transform the states

from independent sovereigns into a single unified nation, directs that

a state, when acting as the forum for litigation having multistate

aspects or implications, respect the legitimate interests of other states

and avoid infringement upon their sovereignty. But because the forum state is also a sovereign in its own right, in appropriate cases

it may attach paramount importance to its own legitimate interests.109

105 See Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887) (statutes); and Smithsonian Institution v. St. John, 214 U.S. 19 (1909) (state constitutional provision).

106 Baker v. General Motors Corp., 522 U.S. 222, 232 (1998), quoted in Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488, 494 (2003). Justice Nelson, in the Dred

Scott case, drew an analogy to international law, concluding that states, as well as

nations, judge for themselves the rules governing property and persons within their

territories. Scott v. Sandford, 60 U.S. (19 How.) 393, 460 (1857). “One State cannot

exempt property from taxation in another,” the Court concluded in Bonaparte v. Tax

Court, 104 U.S. 592 (1882), holding that no provision of the Constitution, including

the Full Faith and Credit Clause, enabled a law exempting from taxation certain

debts of the enacting state to prevent another state (the state in which the creditor

resided) from taxing the debts. See also Bank of Augusta v. Earle, 38 U.S. (13 Pet.)

519, 589–96 (1839); Kryger v. Wilson, 242 U.S. 171 (1916); and Bond v. Hume, 243

U.S. 15 (1917).

107 Baker v. General Motors Corp., 522 U.S. at 232.

108 Alaska Packers Ass’n. v. Industrial Accident Comm’n, 294 U.S. 532 (1935);

Bradford Elec. Co. v. Clapper, 286 U.S. 145 (1932). When, in a state court, the validity of an act of the legislature of another state is not in question, and the controversy turns merely upon its interpretation or construction, no question arises under

the Full Faith and Credit Clause. See also Western Life Indemnity Co. v. Rupp, 235

U.S. 261 (1914), citing Glenn v. Garth, 147 U.S. 360 (1893); Lloyd v. Matthews, 155

U.S. 222, 227 (1894); Banholzer v. New York Life Ins. Co., 178 U.S. 402 (1900); Allen v. Alleghany Co., 196 U.S. 458, 465 (1905); Texas & N.O.R.R. v. Miller, 221 U.S.

408 (1911). See also National Mut. B. & L. Ass’n v. Brahan, 193 U.S. 635 (1904);

Johnson v. New York Life Ins. Co., 187 U.S. 491, 495 (1903); Pennsylvania Fire Ins.

Co. v. Gold Issue Mining Co., 243 U.S. 93 (1917).

109 E.g., Allstate Ins. Co. v. Hague, 449 U.S. 302 (1981); Nevada v. Hall, 440

U.S. 410 (1979); Carroll v. Lanza, 349 U.S. 408 (1955); Pacific Employers Ins. Co. v.

Sec. 1—Full Faith and Credit

ART. IV—STATES’ RELATIONS 953
As such, a state need not “substitute for its own statute, applicable to persons and events within it, the statute of another state

reflecting a conflicting and opposed policy,” so long as the state does

not adopt a “policy of hostility to the” public acts of that other state

in so doing.110 In recent years, the Court has, in protracted litigation by a Nevada citizen in a Nevada court over alleged abusive

practices by a California state agency, twice interpreted the “policy

of hostility” standard.111 In 2003, in Franchise Tax Board of California v. Hyatt, the Supreme Court held that the Nevada Supreme Court

did not exhibit “hostility” in declining to apply a California law affording complete immunity to state agencies, because the state high

court had, in considering “comity principles with a healthy regard

for California’s sovereign status,” legitimately relied on “the contours of Nevada’s own sovereign immunity from suit as a benchmark for its analysis.” 112 Thirteen years later, after the case had

been remanded and the Nevada Supreme Court had crafted a “special rule” for damages in the matter wherein the California state

agency could not rely on the Nevada sovereign immunity statute

limiting liability to $50,000, the Supreme Court reviewed whether

the Nevada court’s ruling conflicted with the Full Faith and Credit

Clause.113 In contrast to the 2003 ruling, the 2016 ruling held that

the Nevada Supreme Court had acted in violation of the Full Faith

and Credit Clause. Specifically, the High Court concluded that upholding the Nevada Supreme Court’s “special rule”—which was supported by a “conclusory statement” respecting California’s lack of

oversight of its own agencies and was viewed by the Court as reflecting a “policy of hostility to the public Acts’ of a sister State”—

would allow for a “system of special and discriminatory rules” that

conflicted with the Constitution’s “vision of 50 individual and equally

dignified States.” 114 While the Franchise Tax Board litigation demonstrates that the “policy of hostility” standard still exists as a threshold inquiry into whether a state is providing full faith and credit to

the public acts of a sister state, ordinarily a state has significant

discretion in applying their own choice of law provisions in matters

arising in that state’s courts, and the Court will not engage in any

Industrial Accident Comm’n, 306 U.S. 493 (1939); Alaska Packers Ass’n v. Industrial Accident Comm’n, 294 U.S. 532 (1935).

110 See Carroll, 349 U.S. at 412–13.

111 See Franchise Tax Bd. of Cal. v. Hyatt (Franchise Tax Bd. II), 578 U.S. ___,

No. 14–1175, slip op. (2016); Franchise Tax Bd. of Cal. v. Hyatt (Franchise Tax Bd.

I), 538 U.S. 488 (2003).

112 See Franchise Tax Bd. I, 538 U.S. at 499.

113 See Franchise Tax Bd. II, slip op. at 3–4.

114 See id. at 7.

Sec. 1—Full Faith and Credit

954 ART. IV—STATES’ RELATIONS
broad “balancing-of-interests” approach to determine the appropriate application of a given state law.115

Transitory Actions: Death Statutes.—The initial effort in this

direction was made in connection with transitory actions based on

statute. Earlier, such actions had rested upon the common law, which

was fairly uniform throughout the states, so that there was usually little discrepancy between the law under which the plaintiff from

another jurisdiction brought his action (lex loci) and the law under

which the defendant responded (lex fori). In the late 1870s, however, the states, abandoning the common law rule on the subject,

began passing laws that authorized the representatives of a decedent whose death had resulted from injury to bring an action for

damages.116 The question at once presented itself whether, if such

an action was brought in a state other than that in which the injury occurred, it was governed by the statute under which it arose

or by the law of the forum state, which might be less favorable to

the defendant. Nor was it long before the same question presented

itself with respect to transitory action ex contractu, where the contract involved had been made under laws peculiar to the state where

made, and with those laws in view.

Actions Upon Contract.—In Chicago & Alton R.R. v. Wiggins

Ferry Co.,

117 the Court indicated that it was the law under which

the contract was made, not the law of the forum state, that should

govern. Its utterance on the point was, however, not merely dictum, but was based on an error, namely, the false supposition that

the Constitution gives “acts” the same extraterritorial operation as

the Act of 1790 does “judicial records and proceedings.” Notwith115 Id. at 7–8 (noting that while the Court, in the instant case, could “safely

conclude” that Nevada’s special rule violated the Constitution, the Court had “abandoned” any broader balancing test with respect to the Full Faith and Credit Clause

and “public acts”).

116 Dennick v. Railroad Co., 103 U.S. 11 (1881), was the first so-called “Death

Act” case to reach the Supreme Court. See also Stewart v. Baltimore & O.R.R., 168

U.S. 445 (1897). Even today the obligation of a state to furnish a forum for the determination of death claims arising in another state under the laws thereof appears

to rest on a rather precarious basis. In Hughes v. Fetter, 341 U.S. 609 (1951), the

Court, by a narrow majority, held invalid under the full faith and credit clause a

statute of Wisconsin which, as locally interpreted, forbade its courts to entertain

suits of this nature; in First Nat’l Bank v. United Air Lines, 342 U.S. 396 (1952), a

like result was reached under an Illinois statute. More recently, the Court has acknowledged that the Full Faith and Credit Clause does not compel the forum state,

in an action for wrongful death occurring in another jurisdiction, to apply a longer

period of limitations set out in the wrongful death statute of the state in which the

fatal injury was sustained. Wells v. Simonds Abrasive Co., 345 U.S. 514 (1953). Justices Jackson, Black, and Minton, in dissenting, advanced the contrary principle that

the clause requires that the law where the tort action arose should follow said action in whatever forum it is pursued.

117 119 U.S. 615 (1887).

Sec. 1—Full Faith and Credit

ART. IV—STATES’ RELATIONS 955
standing which, this dictum is today the basis of “the settled rule”

that the defendant in a transitory action is entitled to all the benefits resulting from whatever material restrictions the statute under which plaintiff’s rights of action originated sets thereto, except

that courts of sister states cannot be thus prevented from taking

jurisdiction in such cases.118

However, the modern doctrine permits a forum state with sufficient contacts with the parties or the matter in dispute to follow

its own law. In Allstate Ins. Co. v. Hague,

119 the decedent was a

Wisconsin resident who had died in an automobile accident within

Wisconsin near the Minnesota border in the course of his daily employment commute to Wisconsin. He had three automobile insurance policies on three automobiles, each limited to $15,000. Following his death, his widow and personal representative moved to

Minnesota, and she sued in that state. She sought to apply Minnesota law, under which she could “stack” or aggregate all three policies, permissible under Minnesota law but not allowed under Wisconsin law, where the insurance contracts had been made. The Court,

in a divided opinion, permitted resort to Minnesota law, because of

the number of contacts the state had with the matter. On the other

hand, an earlier decision is in considerable conflict with Hague. There,

a life insurance policy was executed in New York, on a New York

insured, with a New York beneficiary. The insured died in New York,

and his beneficiary moved to Georgia and sued to recover on the

policy. The insurance company defended on the ground that the insured, in the application for the policy, had made materially false

statements that rendered it void under New York law. The defense

was good under New York law, impermissible under Georgia law,

and Georgia’s decision to apply its own law was overturned, the Court

stressing the surprise to the parties of the resort to the law of another state and the absence of any occurrence in Georgia to which

its law could apply.120

Stockholder Corporation Relationship.—The protections of

the Full Faith and Credit Clause extend beyond transitory actions.

Some legal relationships are so complex, the Court holds, that the

law under which they were formed ought always to govern them as

long as they persist.121 One such relationship is that of a stockholder and his corporation. Hence, if a question arises as to the liability of the stockholders of a corporation, the courts of the forum

118 Northern Pacific R.R. v. Babcock, 154 U.S. 190 (1894); Atchison, T. & S.F.

Ry. v. Sowers, 213 U.S. 55, 67 (1909).

119 449 U.S. 302 (1981). See also Clay v. Sun Ins. Office, 377 U.S. 179 (1964).

120 John Hancock Mut. Life Ins. Co. v. Yates, 299 U.S. 178 (1936).

121 Modern Woodmen v. Mixer, 267 U.S. 544 (1925).

Sec. 1—Full Faith and Credit

956 ART. IV—STATES’ RELATIONS
state are required by the Full Faith and Credit Clause to determine the question in accordance with the constitution, laws and judicial decisions of the corporation’s home states.122 Illustrative applications of the latter rule are to be found in the following cases.

A New Jersey statute forbidding an action at law to enforce a stockholder’s liability arising under the laws of another state and providing that such liability may be enforced only in equity, and that in

such a case the corporation, its legal representatives, all its creditors, and stockholders, should be necessary parties, was held not to

preclude an action at law in New Jersey by the New York superintendent of banks against 557 New Jersey stockholders in an insolvent New York bank to recover assessments made under the laws

of New York.123 Also, in a suit to enforce double liability, brought in

Rhode Island against a stockholder in a Kansas trust company, the

courts of Rhode Island were held to be obligated to extend recognition to the statutes and court decisions of Kansas whereunder it is

established that a Kansas judgment recovered by a creditor against

the trust company is not only conclusive as to the liability of the

corporation but also an adjudication binding each stockholder therein.

The only defenses available to the stockholder are those which he

could make in a suit in Kansas.124

Fraternal Benefit Society: Member Relationship.—The same

principle applies to the relationship that is formed when one takes

out a policy in a “fraternal benefit society.” Thus, in Royal Arcanum

v. Green,

125 in which a fraternal insurance association chartered under the laws of Massachusetts had been sued in the courts of New

York by a citizen of the latter state on a contract of insurance made

in that state, the Court held that the defendant company was entitled under the full faith and credit clause to have the case determined in accordance with the laws of Massachusetts and its own

constitution and by-laws as these had been construed by the Massachusetts courts.

Nor has the Court manifested any disposition to depart from

this rule. In Sovereign Camp v. Bolin,

126 it declared that a state in

which a certificate of life membership of a foreign fraternal benefit

association is issued, which construes and enforces the certificate

according to its own law rather than according to the law of the

122 Converse v. Hamilton, 224 U.S. 243 (1912); Selig v. Hamilton, 234 U.S. 652

(1914); Marin v. Augedahl, 247 U.S. 142 (1918).

123 Broderick v. Rosner, 294 U.S. 629 (1935). See also Thormann v. Frame, 176

U.S. 350, 356 (1900); Reynolds v. Stockton, 140 U.S. 254, 264 (1891).

124 Hancock Nat’l Bank v. Farnum, 176 U.S. 640 (1900).

125 237 U.S. 531 (1915), followed in Modern Woodmen v. Mixer, 267 U.S. 544

(1925).

126 305 U.S. 66, 75, 79 (1938).

Sec. 1—Full Faith and Credit

ART. IV—STATES’ RELATIONS 957
state in which the association is domiciled, denies full faith and credit

to the association’s charter embodied in the status of the domiciliary state as interpreted by the latter’s court. “The beneficiary certificate was not a mere contract to be construed and enforced according to the laws of the State where it was delivered. Entry into

membership of an incorporated beneficiary society is more than a

contract; it is entering into a complex and abiding relation and the

rights of membership are governed by the law of the State of incorporation. [Hence] another State, wherein the certificate of membership was issued, cannot attach to membership rights against the

society which are refused by the law of domicile.” Consistent with

that, the Court also held, in Order of Travelers v. Wolfe,

127 that South

Dakota, in a suit brought therein by an Ohio citizen against an Ohio

benefit society, must give effect to a provision of the constitution of

the society prohibiting the bringing of an action on a claim more

than six months after disallowance by the society, notwithstanding

that South Dakota’s period of limitation was six years and that its

own statutes voided contract stipulations limiting the time within

which rights may be enforced. Objecting to these results, Justice

Black dissented on the ground that fraternal insurance companies

are not entitled, either by the language of the Constitution, or by

the nature of their enterprise, to such unique constitutional protection.

Insurance Company, Building and Loan Association: Contractual Relationships.—Whether or not distinguishable by nature of their enterprise, stock and mutual insurance companies and

mutual building and loan associations, unlike fraternal benefit societies, have not been accorded the same unique constitutional protection; with few exceptions,128 they have had controversies arising

out of their business relationships settled by application of the law

of the forum state. In National Mutual B. & L. Ass’n v. Brahan,

129

the principle applicable to these three forms of business organizations was stated as follows: where a corporation has become localized in a state and has accepted the laws of the state as a condition of doing business there, it cannot abrogate those laws by

attempting to make contract stipulations, and there is no violation

of the Full Faith and Credit Clause in instructing a jury to find

according to local law notwithstanding a clause in a contract that

it should be construed according to the laws of another state.

127 331 U.S. 586, 588–89, 637 (1947).

128 New York Life Ins. Co. v. Head, 234 U.S. 149 (1914); Aetna Life Ins. Co. v.

Dunken, 266 U.S. 389 (1924).

129 193 U.S. 635 (1904).

Sec. 1—Full Faith and Credit

958 ART. IV—STATES’ RELATIONS
Thus, the Court held in Brahan, when a Mississippi borrower,

having repaid a mortgage loan to a New York building and loan

association, sued in a Mississippi court to recover, as usurious, certain charges collected by the association, the usury law of Mississippi rather than that of New York controlled. In this case, the loan

contract, which was negotiated in Mississippi subject to approval

by the New York office, did not expressly state that it was governed by New York law. Similarly, when the New York Life Insurance Company, which had expressly stated in its application and

policy forms that they would be controlled by New York law, was

sued in Missouri on a policy sold to a resident thereof, the court of

that state was sustained in its application of Missouri, rather than

New York law.130 Also, in an action in a federal court in Texas to

collect the amount of a life insurance policy which had been made

in New York and later changed by instruments assigning beneficial

interest, it was held that questions (1) whether the contract remained one governed by the law of New York with respect to rights

of assignees, rather than by the law of Texas, (2) whether the public policy of Texas permits recovery by one named beneficiary who

has no beneficial interest in the life of the insured, and (3) whether

lack of insurable interest becomes material when the insurer acknowledges liability and pays the money into court, were questions

of Texas law, to be decided according to Texas decisions.131 Similarly, a state, by reason of its potential obligation to care for dependents of persons injured or killed within its limits, is conceded to

have a substantial interest in insurance policies, wherever issued,

which may afford compensation for such losses; accordingly, it is competent, by its own direct action statute, to grant the injured party

a direct cause of action against the insurer of the tortfeasor, and to

refuse to enforce the law of the state, in which the policy is issued

or delivered, which recognizes as binding a policy stipulation which

forbids direct actions until after the determination of the liability

of the insured tortfeasor.132

Consistent with the latter holding are the following two involving mutual insurance companies. In Pink v. A.A.A. Highway Ex130 New York Life Ins. Co. v. Cravens, 178 U.S. 389 (1900). See also American

Fire Ins. Co v. King Lumber Co., 250 U.S. 2 (1919).

131 Griffin v. McCoach, 313 U.S. 498 (1941).

132 Watson v. Employers Liability Corp., 348 U.S. 66 (1954). In Clay v. Sun Ins.

Office, 363 U.S. 207 (1960), three dissenters, Justices Black, and Douglas, and Chief

Justice Warren, would have resolved the constitutional issue which the Court avoided,

and would have sustained application of the forum state’s statute of limitations fixing a period in excess of that set forth in the policy.

Sec. 1—Full Faith and Credit

ART. IV—STATES’ RELATIONS 959
press,

133 the New York insurance commissioner, as a statutory liquidator of an insolvent auto mutual company organized in New York,

sued resident Georgia policyholders in a Georgia court to recover

assessments alleged to be due by virtue of their membership in it.

The Supreme Court held that, although by the law of the state of

incorporation, policyholders of a mutual insurance company become members thereof and as such liable to pay assessments adjudged to be required in liquidation proceedings in that state, the

courts of another state are not required to enforce such liability against

local resident policyholders who did not appear and were not personally served in the foreign liquidation proceedings but are free to

decide according to local law the questions whether, by entering into

the policies, residents became members of the company. Again, in

State Farm Ins. Co. v. Duel,

134 the Court ruled that an insurance

company chartered in State A, which does not treat membership

fees as part of premiums, cannot plead denial of full faith and credit

when State B, as a condition of entry, requires the company to maintain a reserve computed by including membership fees as well as

premiums received in all states. Were the company’s contention accepted, “no State,” the Court observed, “could impose stricter financial standards for foreign corporations doing business within its borders than were imposed by the State of incorporation.” It is not

apparent, the Court added, that State A has an interest superior to

that of State B in the financial soundness and stability of insurance companies doing business in State B.

Workers’ Compensation Statutes.—Finally, the relationship of

employer and employee, insofar as the obligations of the one and

the rights of the other under worker’s compensation acts are concerned, has been the subject of differing and confusing treatment.

In an early case, the injury occurred in New Hampshire, resulting

in death to a workman who had entered the defendant company’s

employ in Vermont, the home state of both parties. The Court required the New Hampshire courts to respect a Vermont statute which

precluded a worker from bringing a common-law action against his

employer for job related injuries where the employment relation was

formed in Vermont, prescribing a constitutional rule giving priority

to the place of the establishment of the employment relationship

133 314 U.S. 201, 206–08 (1941). However, a decree of a Montana Supreme Court,

insofar as it permitted judgment creditors of a dissolved Iowa surety company to

levy execution against local assets to satisfy judgment, as against title to such assets of the Iowa insurance commissioner as statutory liquidator and successor to

the dissolved company, was held to deny full faith and credit to the statutes of Iowa.

Clark v. Williard, 292 U.S. 112 (1934).

134 324 U.S. 154, 159–60 (1945).

Sec. 1—Full Faith and Credit

960 ART. IV—STATES’ RELATIONS
over the place of injury.135 The same result was achieved in a subsequent case, but the Court promulgated a new rule, applied thereafter, which emphasized a balancing of the governmental interests

of each jurisdiction, rather than the mere application of the statutory rule of one or another state under full faith and credit.136 Thus,

the Court held that the clause did not preclude California from disregarding a Massachusetts’s workmen’s compensation statute, making its law exclusive of any common law action or any law of any

other jurisdiction, and applying its own act in the case of an injury

suffered by a Massachusetts employee of a Massachusetts employer while in California in the course of his employment.137 It is

therefore settled that an injured worker may seek a compensation

award either in the state in which the injury occurred or in the

state in which the employee resided, his employer was principally

located, and the employment relation was formed, even if one statute or the other purported to confer an exclusive remedy on the

workman.138

Less settled is the question whether a second state, with interests in the matter, may supplement a workers’ compensation award

provided in the first state. At first, the Court ruled that a Louisiana employee of a Louisiana employer, who was injured on the job

in Texas and who received an award under the Texas act, which

did not grant further recovery to an employee who received compensation under the laws of another state, could not obtain additional

compensation under the Louisiana statute.139 Shortly, however, the

Court departed from this holding, permitting Wisconsin, the state

of the injury, to supplement an award pursuant to the laws of Illinois, where the worker resided and where the employment contract had been entered into.140 Although the second case could have

been factually distinguished from the first,141 the Court instead chose

to depart from the principle of the first, saying that only if the laws

of the first state making an award contained “unmistakable lan135 Bradford Elec. Co. v. Clapper, 286 U.S. 145 (1932).

136 Alaska Packers Ass’n v. Industrial Accident Comm’n, 294 U.S. 532 (1935).

The state where the employment contract was made was permitted to apply its workmen’s compensation law despite the provision in the law of the state of injury making its law the exclusive remedy for injuries occurring there. See id. at 547 (stating

the balancing test).

137 Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U.S. 493 (1939).

138 In addition to Alaska Packers and Pacific Ins., see Carroll v. Lanza, 349 U.S.

408 (1955); Cardillo v. Liberty Mutual Co., 330 U.S. 469 (1947); Crider v. Zurich

Ins. Co., 380 U.S. 39 (1965); Nevada v. Hall, 440 U.S. 410, 421–24 (1979).

139 Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943).

140 Industrial Comm’n v. McCartin, 330 U.S. 622 (1947).

141 Employer and employee had entered into a contract of settlement under the

Illinois act, the contract expressly providing that it did not affect any rights the employee had under Wisconsin law. 330 U.S. at 624.

Sec. 1—Full Faith and Credit

ART. IV—STATES’ RELATIONS 961
guage” to the effect that those laws were exclusive of any remedy

under the laws of any other state would supplementary awards be

precluded.142 Although the overwhelming number of state court decisions since follow McCartin, and Magnolia has been little noticed, all the Justices expressed dissatisfaction with the former case

as a rule of the Full Faith and Credit Clause, although a majority

of the Court followed it and permitted a supplementary award.143

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.144

FULL FAITH AND CREDIT: MISCELLANY

Full Faith and Credit in Federal Courts

The rule of 28 U.S.C. §§ 1738–1739 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 states.145 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

142 330 U.S. at 627–28, 630.

143 Thomas v. Washington Gas Light Co., 448 U.S. 261 (1980). For the disapproval of McCartin, see id. at 269–72 (plurality opinion of four), 289 (concurring opinion of three), 291 (dissenting opinion of two). But the four Justice plurality would

have instead overruled Magnolia, id. at 277–86, and adopted the rule of interest

balancing used in deciding which state may apply its laws in the first place. The

dissenting two Justices would have overruled McCartin and followed Magnolia. Id.

at 290. The other Justices considered Magnolia the sounder rule but decided to follow McCurtin because it could be limited to workmen’s compensation cases, thus

requiring no evaluation of changes throughout the reach of the Full Faith and Credit

Clause. Id. at 286.

144 Watkins v. Conway, 385 U.S. 188, 190–91 (1965).

145 Cooper v. Newell, 173 U.S. 555, 567 (1899), See also Pennington v. Gibson,

57 U.S. (16 How.) 65, 81 (1854); Cheever v. Wilson, 76 U.S. (9 Wall.) 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 Ass’n, 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).

Sec. 1—Full Faith and Credit

962 ART. IV—STATES’ RELATIONS
should, if they do not infringe federal law or policy.146 However, the

refusal of a territorial court in Hawaii, which had jurisdiction of

the action 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 in which

no judgment had been entered, did not violate this clause.147

The power to prescribe the effect to be given to the judicial proceedings of the courts of the United States is conferred by other

provisions of the Constitution, such as those that 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.148

Evaluation Of Results Under Provision

The Court, after 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 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.149

146 Milwaukee County v. White Co., 296 U.S. 268 (1935).

147 Equitable Life Assurance Society v. Brown, 187 U.S. 308 (1902). See also Gibson v. Lyon, 115 U.S. 439 (1885).

148 Embry v. Palmer, 107 U.S. 3, 9 (1883). See also Northern Assurance Co. v.

Grand View Ass’n, 203 U.S. 106 (1906); Louisville & Nashville R.R. 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. v. Pittsburgh Const. Co., 219 U.S. 92 (1911); Knights of Pythias v. Meyer,

265 U.S. 30, 33 (1924).

149 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

Sec. 1—Full Faith and Credit

ART. IV—STATES’ RELATIONS 963
The question arises whether the application to date, not by the

Court alone but by Congress as well, of Article IV, § 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 McElmoyle 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.

SCOPE OF POWERS OF CONGRESS UNDER

PROVISION

Under the present system, suit ordinarily must 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?” 150

Indeed, there are few clauses of the Constitution, the merely

literal possibilities of which have been so little developed as the Full

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 HARV. L. REV. 533, 562 (1926). It can hardly be said that the law has been

subsequently clarified on this point.

150 Cook, The Power of Congress Under the Full Faith and Credit Clause, 28

YALE L.J. 421, 430 (1919).

Sec. 1—Full Faith and Credit

964 ART. IV—STATES’ RELATIONS
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.

JUDGMENTS OF FOREIGN STATES

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.151

SECTION 2. Clause 1. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several

States.

STATE CITIZENSHIP: PRIVILEGES AND IMMUNITIES

Origin and Purpose

“The primary purpose of this clause, like the clauses between which

it is located . . . was to help fuse into one Nation a collection of independent sovereign States.” 152 Precedent for this clause was a much

151 No right, privilege, or immunity is conferred by the Constitution in respect

to judgments of foreign states and nations. Aetna Life Ins. 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. § 1781. Several States have similar provisions, 2 J. MOORE, DIGEST

OF INTERNATIONAL LAW 108–109 (1906).

152 Toomer v. Witsell, 334 U.S. 385, 395 (1948).

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities

ART. IV—STATES’ RELATIONS 965
wordier and a somewhat unclear 153 clause of the Articles of Confederation. “The better to secure and perpetuate mutual friendship and

intercourse among the people of the different States in this Union, the

free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each

State shall have free ingress and regress to and from any other State,

and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively . . . .” 154 In the Convention, the present clause

was presented, reported by the Committee on Detail, and adopted all

in the language ultimately approved.155 Little commentary was addressed to it,156 and we may assume with Justice Miller that “[t]here

can be but little question that the purpose of both these provisions is

the same, and that the privileges and immunities intended are the same

in each. In the Articles of Confederation we have some of these specifically mentioned, and enough perhaps to give some general idea of

the class of civil rights meant by the phrase.” 157 At least four theories have been proffered regarding the purpose of this clause. First,

the clause is a guaranty to the citizens of the different states of equal

treatment by Congress; in other words, it is a species of equal protection clause binding on the National Government. Though it received

some recognition in the Dred Scott case,158 particularly in the opinion of Justice Catron,159 this theory is today obsolete.160 Second, the

153 THE FEDERALIST, No. 42 (J. Cooke ed. 1961), 285–286 (Madison).

154 1 F. Thorpe ed., The Federal and State Constitutions, H. DOC. NO. 357, 59th

Cong., 2d Sess. (1909), 10.

155 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 173, 187, 443

(rev. ed. 1937).

156 “It may be esteemed the basis of the Union, that ‘the citizens of each State

shall be entitled to all the privileges and immunities of citizens of the several States.’

And if it be a just principle that every government ought to possess the means of

executing its own provisions by its own authority, it will follow, that in order to the

inviolable maintenance of that equality of privileges and immunities to which the

citizens of the Union will be entitled, the national judiciary ought to preside in all

cases in which one State or its citizens are opposed to another State or its citizens.

To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary that its construction should be committed to that tribunal

which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union,

will never be likely to feel any bias inauspicious to the principles on which its is

founded.” THE FEDERALIST, No. 80 (J. Cooke ed. 1961), 537–538 (Hamilton).

157 Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 75 (1873).

158 Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

159 60 U.S. at 518, 527–29.

160 Today, the Due Process Clause of the Fifth Amendment imposes equal protection standards on the Federal Government. Bolling v. Sharpe, 347 U.S. 497 (1954);

Schneider v. Rusk, 377 U.S. 163, 168 (1964); Shapiro v. Thompson, 394 U.S. 618,

641–42 (1969).

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities

966 ART. IV—STATES’ RELATIONS
clause is a guaranty to the citizens of each state of the natural and

fundamental rights inherent in the citizenship of persons in a free society, the privileges and immunities of free citizens, which no state could

deny to citizens of other states, without regard to the manner in which

it treated its own citizens. This theory found some expression in a few

state cases 161 and best accords with the natural law-natural rights language of Justice Washington in Corfield v. Coryell.

162

If it had been accepted by the Court, this theory might well have

endowed the Supreme Court with a reviewing power over restrictive state legislation as broad as that which it later came to exercise under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, but it was firmly rejected by the Court.163 Third,

the clause guarantees to the citizen of any state the rights which

he enjoys as such even when he is sojourning in another state; that

is, it enables him to carry with him his rights of state citizenship

throughout the Union, unembarrassed by state lines. This theory,

too, the Court rejected.164 Fourth, the clause merely forbids any state

to discriminate against citizens of other states in favor of its own.

It is this narrow interpretation that has become the settled one. “It

was undoubtedly the object of the clause in question to place the

citizens of each State upon the same footing with citizens of other

States, so far as the advantages resulting from citizenship in those

States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them

by other States; it gives them the right of free ingress into other

161 Campbell v. Morris, 3 H. & McH. 288 (Md. 1797); Murray v. McCarty, 2 Munf.

373 (Va. 1811); Livingston v. Van Ingen, 9 Johns. Case. 507 (N.Y. 1812); Douglas v.

Stephens, 1 Del. Ch. 465 (1821); Smith v. Moody, 26 Ind. 299 (1866).

162 6 Fed. Cas. 546, 550 (No. 3230) (C.C.E.D. Pa. 1823). (Justice Washington on

circuit), quoted infra, “All Privileges and Immunities of Citizens in the Several States.”

“At one time it was thought that this section recognized a group of rights which,

according to the jurisprudence of the day, were classed as ‘natural rights’; and that

the purpose of the section was to create rights of citizens of the United States by

guaranteeing the citizens of every State the recognition of this group of rights by

every other State. Such was the view of Justice Washington.” Hague v. CIO, 307

U.S. 496, 511 (1939) (Justice Roberts for the Court). This view of the clause was

asserted by Justices Field and Bradley, Slaughter House Cases, 83 U.S. (16 Wall.)

97, 117–18 (1873) (dissenting opinions); Butchers’ Union Slaughter-House and LiveStock Landing Co. v. Crescent City Live-Stock Landing and Slaughter-House Co.,

111 U.S. 746, 760 (1884) (Justice Field concurring), but see infra, and was possibly

understood so by Chief Justice Taney. Scott v. Sandford, 60 U.S. (19 How.) 393, 423

(1857). See also id. at 580 (Justice Curtis dissenting). The natural rights concept of

privileges and immunities was strongly held by abolitionists and their congressional

allies who drafted the similar clause into 1 of the Fourteenth Amendment. Graham,

Our ‘Declaratory’ Fourteenth Amendment, reprinted in H. GRAHAM, EVERYMAN’S CONSTITUTION: HISTORICAL ESSAYS ON THE FOURTEENTH AMENDMENT, THE CONSPIRACY THEORY, AND AMERICAN CONSTITUTIONALISM 295 (1968).

163 McKane v. Durston, 153 U.S. 684, 687 (1894); see also cases cited infra.

164 City of Detroit v. Osborne, 135 U.S. 492 (1890).

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities

ART. IV—STATES’ RELATIONS 967
States, and egress from them; it insures to them in other States

the same freedom possessed by the citizens of those States in the

acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of

their laws.” 165

The recent cases emphasize that interpretation of the clause is

tied to maintenance of the Union. “Some distinctions between residents and nonresidents merely reflect the fact that this is a Nation

composed of individual States, and are permitted; other distinctions are prohibited because they hinder the formation, the purpose, or the development of a single Union of those States. Only

with respect to those ‘privileges’ and ‘immunities’ bearing upon the

vitality of the Nation as a single entity must the State treat all

citizens, resident and nonresident, equally.” 166 Although the clause

“was intended to create a national economic union,” it also protects

noneconomic interests relating to the Union.167

Hostile discrimination against all nonresidents infringes the

clause,168 but controversies between a state and its own citizens are

not covered by the provision.169 However, a state discrimination in

favor of residents of one of its municipalities implicates the clause,

even though the disfavored class consists of in-state as well as outof-state inhabitants.170 The clause should not be read so literally,

the Court held, as to permit states to exclude out-of-state residents

from benefits through the simple expediency of delegating authority to political subdivisions.171 A violation can occur whether or not

a statute explicitly discriminates against out-of-state interests.172

165 Paul v. Virginia, 75 U.S. (8 Wall.) 168, 180 (1869) (Justice Field for the Court;

but see supra); see also Slaughter House Cases, 83 U.S. (16 Wall.) 36, 77 (1873);

Chambers v. Baltimore & O.R.R., 207 U.S. 142 (1907); Whitfield v. Ohio, 297 U.S.

431 (1936).

166 Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371, 383 (1978). See

also Austin v. New Hampshire, 420 U.S. 656, 660–65 (1975) (clause “implicates not

only the individual’s right to nondiscriminatory treatment but also, perhaps more

so, the structural balance essential to the concept of federalism.” Id. at 662); Hicklin

v. Orbeck, 437 U.S. 518, 523–24 (1978).

167 Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 281–82 (1985).

See also Doe v. Bolton, 410 U.S. 179, 200 (1973) (discrimination against out-of-state

residents seeking medical care violates clause).

168 Blake v. McClung, 172 U.S. 239, 246 (1898); Travis v. Yale & Towne Mfg.

Co., 252 U.S. 60 (1920).

169 Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 138 (1873); Cove v. Cunningham,

133 U.S. 107 (1890). But see Zobel v. Williams, 457 U.S. 55, 71 (1982) (Justice O’Connor

concurring).

170 United Building & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208

(1984).

171 465 U.S. at 217. The holding illustrates what the Court has referred to as

the “mutually reinforcing relationship” between the Commerce Clause and the Privileges and Immunities Clause. Supreme Court of New Hampshire v. Piper, 470 U.S.

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities

968 ART. IV—STATES’ RELATIONS
How Implemented

The Privileges and Immunities Clause is self-executory, that is

to say, its enforcement is dependent upon the judicial process. It

does not authorize penal legislation by Congress. Federal statutes

prohibiting conspiracies to deprive any person of rights or privileges secured by state laws,173 or punishing infractions by individuals of the right of citizens to reside peacefully in the several states

and to have free ingress into and egress from such states,174 have

been held void.

Citizens of Each State

A question much mooted before the Civil War was whether the

term could be held to include free Negroes. In the Dred Scott case,175

the Court answered it in the negative. “Citizens of each State,” Chief

Justice Taney argued, meant citizens of the United States as understood at the time the Constitution was adopted, and Negroes were

not then regarded as capable of citizenship. The only category of

national citizenship added under the Constitution comprised aliens,

naturalized in accordance with acts of Congress.176 In dissent, Justice Curtis not only denied the Chief Justice’s assertion that there

were no Negro citizens of states in 1789 but further argued that,

although Congress alone could determine what classes of aliens should

be naturalized, the states retained the right to extend citizenship

to classes of persons born within their borders who had not previously enjoyed citizenship and that one upon whom state citizenship was thus conferred became a citizen of the state in the full

sense of the Constitution.177 So far as persons born in the United

States, and subject to the jurisdiction thereof are concerned, the question was put at rest by the Fourteenth Amendment.

Corporations.—At a comparatively early date, the claim was

made that a corporation chartered by a state and consisting of its

citizens was entitled to the benefits of the comity clause in the transaction of business in other states. It was argued that the Court was

274, 280 n.8 (1985) (quoting Hicklin v. Orbeck, 437 U.S. 518, 531 (1978)). See, e.g.,

Dean Milk Co. v. City of Madison, 424 U.S. 366 (1976) (city protectionist ordinance

that disadvantages both out-of-state producers and some in-state producers violates

the Commerce Clause).

172 “[A]bsence of an express statement . . . identifying out-of-state citizenship

as a basis for disparate treatment is not a sufficient basis for rejecting [a] claim.”

Hillside Dairy, Inc. v. Lyons, 539 U.S. 59, 67 (2003).

173 United States v. Harris, 106 U.S. 629, 643 (1883). See also Baldwin v. Franks,

120 U.S. 678 (1887).

174 United States v. Wheeler, 254 U.S. 281 (1920).

175 Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

176 60 U.S. at 403–11.

177 60 U.S. at 572–90.

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities

ART. IV—STATES’ RELATIONS 969
bound to look beyond the act of incorporation and see who were

the incorporators. If it found these to consist solely of citizens of

the incorporating state, it was bound to permit them through the

agency of the corporation to exercise in other states such privileges

and immunities as the citizens thereof enjoyed. In Bank of Augusta v. Earle,

178 this view was rejected. The Court held that the

comity clause was never intended “to give to the citizens of each

State the privileges of citizens in the several States, and at the same

time to exempt them from the liabilities which the exercise of such

privileges would bring upon individuals who were citizens of the

State. This would be to give the citizens of other States far higher

and greater privileges than are enjoyed by the citizens of the State

itself.” 179 A similar result was reached in Paul v. Virginia,

180 but

by a different course of reasoning. The Court there held that a corporation, in this instance, an insurance company, was “the mere creation of local law” and could “have no legal existence beyond the

limits of the sovereignty” 181 which created it; even recognition of

its existence by other states rested exclusively in their discretion.

Later recent cases held that this discretion is qualified by other provisions of the Constitution notably the Commerce Clause and the

Fourteenth Amendment.182 By reason of its similarity to the corporate form of organization, a Massachusetts trust has been denied

the protection of this clause.183

All Privileges and Immunities of Citizens in the Several

States

The classical judicial exposition of the meaning of this phrase

is that of Justice Washington in Corfield v. Coryell,

184 which was

decided by him on circuit in 1823. The question at issue was the

validity of a New Jersey statute that prohibited “any person who is

not, at the time, an actual inhabitant and resident in this State”

from raking or gathering “clams, oysters or shells” in any of the

waters of the state, on board any vessel “not wholly owned by some

person, inhabitant of and actually residing in this State. . . . The

inquiry is,” wrote Justice Washington, “what are the privileges and

immunities of citizens in the several States? We feel no hesitation

in confining these expressions to those privileges and immunities

which are, in their nature, fundamental; which belong, of right, to

178 38 U.S. (13 Pet.) 519 (1839).

179 38 U.S. at 586.

180 75 U.S. (8 Wall.) 168 (1869).

181 75 U.S. at 181.

182 Crutcher v. Kentucky, 141 U.S. 47 (1891).

183 Hemphill v. Orloff, 277 U.S. 537 (1928).

184 6 Fed. Cas. 546 (No. 3,230) (C.C.E.D. Pa., 1823).

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities

970 ART. IV—STATES’ RELATIONS
the citizens of all free governments; and which have, at all times,

been enjoyed by the citizens of the several States which compose

this Union . . . .” 185 He specified the following rights as answering

this description: “Protection by the Government; the enjoyment of

life and liberty, with the right to acquire and possess property of

every kind, and to pursue and obtain happiness and safety; subject

nevertheless to such restraints as the government must justly prescribe for the general good of the whole. The right of a citizen of

one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to

claim the benefits of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold

and dispose of property, either real or personal; and an exemption

from higher taxes or impositions than are paid by the other citizens of the State . . . .” 186

After thus defining broadly the private and personal rights which

were protected, Justice Washington went on to distinguish them from

the right to a share in the public patrimony of the state. “[W]e cannot accede” the opinion proceeds, “to the proposition . . . that, under this provision of the Constitution, the citizens of the several

States are permitted to participate in all the rights which belong

exclusively to the citizens of any particular State, merely upon the

ground that they are enjoyed by those citizens; much less, that in

regulating the use of the common property of the citizens of such

State, the legislature is bound to extend to the citizens of all other

States the same advantages as are secured to their own citizens.” 187 The right of a state to the fisheries within its borders he

then held to be in the nature of a property right, held by the state

“for the use of the citizens thereof;” the state was under no obligation to grant “co-tenancy in the common property of the State, to

the citizens of all the other States.” 188 The precise holding of this

case was confirmed in McCready v. Virginia;

189 the logic of Geer v.

Connecticut 190 extended the same rule to wild game, and Hudson

Water Co. v. McCarter 191 applied it to the running water of a state.

In Toomer v. Witsell,

192 however, the Court refused to apply this rule

to free-swimming fish caught in the three-mile belt off the coast of

South Carolina. It held instead that “commercial shrimping in the

185 6 Fed. Cas. at 551–52.

186 6 Fed. Cas. at 552.

187 6 Fed. Cas. at 552.

188 6 Fed. Cas. at 552.

189 94 U.S. 391 (1877).

190 161 U.S. 519 (1896).

191 209 U.S. 349 (1908).

192 334 U.S. 385 (1948).

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities

ART. IV—STATES’ RELATIONS 971
marginal sea, like other common callings, is within the purview of

the privileges and immunities clause” and that a severely discriminatory license fee exacted from nonresidents was unconstitutional.193

The virtual demise of the state ownership theory of animals and

natural resources 194 compelled the Court to review and revise its

mode of analysis of state restrictions that distinguished between residents and nonresidents 195 in respect to hunting and fishing and working with natural resources. A two-pronged test emerged. First, the

Court held, it must be determined whether an activity in which a

nonresident wishes to engage is within the protection of the clause.

Such an activity must be “fundamental,” must, that is, be essential

or basic, “interference with which would frustrate the purposes of

the formation of the Union, . . . ” Justice Washington’s opinion on

Circuit in Coryell afforded the Court the standard; while recognizing that the opinion relied on notions of natural rights, the Court

thought he used the term “fundamental” in the modern sense as

well. Such activities as the pursuit of common callings within the

state, the ownership and disposition of privately held property within

the state, and the access to the courts of the state, had been recognized in previous cases as fundamental and protected against unreasonable burdening; but sport and recreational hunting, the issue in the particular case, was not a fundamental activity. It had

nothing to do with one’s livelihood and implicated no other interest

recognized as fundamental.196 Subsequent cases have recognized that

the right to practice law 197 and the right to seek employment on

public contracts 198 are to be considered fundamental activity. Contrariwise, accessing public records through a state freedom of infor193 334 U.S. at 403. In Mullaney v. Anderson, 342 U.S. 415 (1952), an Alaska

statute providing for the licensing of commercial fishermen in territorial waters and

levying a license fee of $50.00 on nonresident and only $5.00 on resident fishermen

was held void under Art. IV, § 2 on the authority of Toomer v. Witsell.

194 The cases arose in the Commerce Clause context. See Douglas v. Seacoast

Products, Inc., 431 U.S. 265, 284 (1977) (dictum). Geer v. Connecticut, 161 U.S. 519

(1896), was overruled in Hughes v. Oklahoma, 441 U.S. 322 (1979); Hudson Water

Co. v. McCarter, 209 U.S. 349 (1908), was overruled in Sporhase v. Nebraska ex rel.

Douglas, 458 U.S. 941 (1982).

195 Although the clause specifically refers to “citizens,” the Court treats the terms

“citizens” and “residents” as “essentially interchangeable.” Austin v. New Hampshire, 420 U.S. 656, 662 n.8 (1975); Hicklin v. Orbeck, 437 U.S. 518, 524 n.8 (1978).

196 Baldwin v. Montana Fish & Game Comm’n, 436 U.S. 371, 387 (1978).

197 Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985).

198 United Building & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208

(1984).

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities

972 ART. IV—STATES’ RELATIONS
mation act was held not to be a fundamental activity, and a state

may limit such access to its own citizens.199

Second, finding a fundamental interest protected under the clause,

in the particular case the right to pursue an occupation or common

calling, the Court used a two-pronged analysis to determine whether

the state’s distinction between residents and nonresidents was justified. Thus, the state was compelled to show that nonresidents constituted a peculiar source of the evil at which the statute was aimed

and that the discrimination bore a substantial relationship to the

particular “evil” they are said to represent, e.g., that it is “closely

tailored” to meet the actual problem. An Alaska statute giving residents preference over nonresidents in hiring for work on the oil and

gas pipelines within the state failed both elements of the test.200

No state justification for exclusion of new residents from the practice of law on grounds not applied to long-term residents has been

approved by the Court.201

Universal practice has also established a political exception to

the clause to which the Court has given its approval. “A State may,

by rule uniform in its operation as to citizens of the several States,

require residence within its limits for a given time before a citizen

of another State who becomes a resident thereof shall exercise the

right of suffrage or become eligible to office.” 202

Discrimination in Private Rights

Not only has judicial construction of the comity clause excluded

certain privileges of a public nature from its protection, but the courts

also have established the proposition that the purely private and

199 McBurney v. Young, 569 U.S. ___, No. 12–17, slip op. at 4 (2013). The Court

further found that any incidental burden on a nonresident’s ability to earn a living,

own property, or exercise another “fundamental” activity could largely be ameliorated by using other available authorities. The Court emphasized that the primary

purpose of the state freedom of information act was to provide state citizens with a

means to obtain an accounting of their public officials.

200 Hicklin v. Orbeck, 437 U.S. 518 (1978). Activity relating to pursuit of an occupation or common calling the Court recognized had long been held to be protected

by the clause. The burden of showing constitutional justification was clearly placed

on the state, id. at 526–28, rather than giving the statute the ordinary presumption

of constitutionality. See Mullaney v. Anderson, 342 U.S. 415, 418 (1952).

201 Barnard v. Thorstenn, 489 U.S. 546 (1989); Supreme Court of Virginia v. Friedman, 487 U.S. 59 (1988); Supreme Court of New Hampshire v. Piper, 470 U.S. 274

(1985). For the application of this test, see Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287, 296–99 (1998).

202 Blake v. McClung, 172 U.S. 239, 256 (1898). Of course as to suffrage, see

Dunn v. Blumstein, 405 U.S. 330 (1972), but not as to candidacy, the principle is

now qualified under the Equal Protection Clause of the Fourteenth Amendment. Baldwin

v. Montana Fish & Game Comm’n, 436 U.S. 371, 383 (1978) (citing Kanapaux v.

Ellisor, 419 U.S. 891 (1974); Chimento v. Stark, 353 F. Supp. 1211 (D.N.H.), aff’d,

414 U.S. 802 (1973)).

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities

ART. IV—STATES’ RELATIONS 973
personal rights to which the clause admittedly extends are not in

all cases beyond the reach of state legislation which differentiates

citizens and noncitizens. Broadly speaking, these rights are held subject to the reasonable exercise by a state of its police power, and

the Court has recognized that there are cases in which discrimination against nonresidents may be reasonably resorted to by a state

in aid of its own public health, safety and welfare. To that end a

state may reserve the right to sell insurance to persons who have

resided within the state for a prescribed period of time.203 It may

require a nonresident who does business within the state 204 or who

uses the highways of the state 205 to consent, expressly or by implication, to service of process on an agent within the state. Without

violating this section, a state may limit the dower rights of a nonresident to lands of which the husband died seized while giving a

resident dower in all lands held during the marriage,206 or may leave

the rights of nonresident married persons in respect of property within

the state to be governed by the laws of their domicile, rather than

by the laws it promulgates for its own residents.207 But a state may

not give a preference to resident creditors in the administration of

the property of an insolvent foreign corporation.208 An act of the

Confederate Government, enforced by a state, to sequester a debt

owed by one of its residents to a citizen of another state was held

to be a flagrant violation of this clause.209

Access to Courts

The right to sue and defend in the courts is one of the highest

and most essential privileges of citizenship and must be allowed by

each state to the citizens of all other states to the same extent that

it is allowed to its own citizens.210 The constitutional requirement

is satisfied if the nonresident is given access to the courts of the

state upon terms that, in themselves, are reasonable and adequate

for the enforcing of any rights he may have, even though they may

not be technically the same as those accorded to resident citizens.211 The Supreme Court upheld a state statute of limitations

that prevented a nonresident from suing in the state’s courts after

203 La Tourette v. McMaster, 248 U.S. 465 (1919).

204 Doherty & Co. v. Goodman, 294 U.S. 623 (1935).

205 Hess v. Pawloski, 274 U.S. 352, 356 (1927).

206 Ferry v. Spokane, P. & S. Ry., 258 U.S. 314 (1922), followed in Ferry v. Corbett,

258 U.S. 609 (1922).

207 Conner v. Elliott, 59 U.S. (18 How.) 591, 593 (1856).

208 Blake v. McClung, 172 U.S. 239, 248 (1898).

209 Williams v. Bruffy, 96 U.S. 176, 184 (1878).

210 Chambers v. Baltimore & O.R.R., 207 U.S. 142, 148 (1907); McKnett v. St.

Louis & S.F. Ry., 292 U.S. 230, 233 (1934).

211 Canadian Northern Ry. v. Eggen, 252 U.S. 553 (1920).

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities

974 ART. IV—STATES’ RELATIONS
expiration of the time for suit in the place where the cause of action arose 212 and another such statute which that suspended its

operation as to resident plaintiffs, but not as to nonresidents, during the period of the defendant’s absence from the state.213 A state

law making it discretionary with the courts to entertain an action

by a nonresident of the state against a foreign corporation doing

business in the state was sustained because it was applicable alike

to citizens and noncitizens residing out of the state.214 A statute

permitting a suit in the courts of the state for wrongful death occurring outside the state, only if the decedent was a resident of the

state, was sustained, because it operated equally upon representatives of the deceased whether citizens or noncitizens.215 Being patently nondiscriminatory, a Uniform Reciprocal State Law to secure the attendance of witnesses from within or without a state in

criminal proceedings, whereunder an Illinois resident, while temporarily in Florida, was summoned to appear at a hearing for determination as to whether he should be surrendered to a New York

officer for testimony in the latter state, does not violate this clause.216

Taxation

In the exercise of its taxing power, a state may not discriminate substantially between residents and nonresidents. In Ward v.

Maryland,

217 the Court set aside a state law that imposed specific

taxes upon nonresidents for the privilege of selling within the state

goods that were produced in other states. Also found to be incompatible with the comity clause was a Tennessee license tax, the amount

of which was dependent upon whether the person taxed had his

chief office within or without the state.218 In Travis v. Yale & Towne

Mfg. Co.,

219 the Court, although sustaining the right of a state to

tax income accruing within its borders to nonresidents,220 held the

particular tax void because it denied to nonresidents exemptions which

were allowed to residents. The “terms ‘resident’ and ‘citizen’ are not

212 252 U.S. at 563.

213 Chemung Canal Bank v. Lowery, 93 U.S. 72, 76 (1876).

214 Douglas v. New York, N.H. & H.R.R., 279 U.S. 377 (1929).

215 Chambers v. Baltimore & O.R.R., 207 U.S. 142 (1907).

216 New York v. O’Neill, 359 U.S. 1 (1959). Justices Douglas and Black dissented.

217 79 U.S. (12 Wall.) 418, 424 (1871). See also Downham v. Alexandria Council,

77 U.S. (10 Wall.) 173, 175 (1870).

218 Chalker v. Birmingham & N.W. Ry., 249 U.S. 522 (1919).

219 252 U.S. 60 (1920).

220 252 U.S. at 62–64. See also Shaffer v. Carter, 252 U.S. 37 (1920). In Austin

v. New Hampshire, 420 U.S. 656 (1975), the Court held void a state commuter income tax, inasmuch as the State imposed no income tax on its own residents and

thus the tax fell exclusively on nonresidents’ income and was not offset even approximately by other taxes imposed upon residents alone.

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities

ART. IV—STATES’ RELATIONS 975
synonymous,” wrote Justice Pitney, “. . . but a general taxing scheme

. . . if it discriminates against all non-residents, has the necessary

effect of including in the discrimination those who are citizens of

other States . . . .” 221 Where there were no discriminations between citizens and noncitizens, a state statute taxing the business

of hiring persons within the state for labor outside the state was

sustained.222

The Court returned to the privileges-and-immunities restrictions upon disparate state taxation of residents and nonresidents

in Lunding v. New York Tax Appeals Tribunal.

223 In this case, the

state denied nonresidents any deduction from taxable income for

alimony payments, although it permitted residents to deduct such

payments. Although it observed that approximate equality between

residents and nonresidents was required by the clause, the Court

acknowledged that precise equality was neither necessary nor in most

instances possible. But it was required of the challenged state that

it demonstrate a “substantial reason” for the disparity, and the discrimination must bear a “substantial relationship” to that reason.224 A state, under this analysis, may not deny nonresidents a

general tax exemption provided to residents that would reduce their

tax burdens, but it could limit specific expense deductions based on

some relationship between the expenses and their in-state property

or income. Here, the state flatly denied the exemption. Moreover,

the Court rejected various arguments that had been presented, finding that most of those arguments, while they might support targeted denials or partial denials, simply reiterated the state’s contention that it need not afford any exemptions at all. This section of

the Constitution does not prevent a territorial government, exercising powers delegated by Congress, from imposing a discriminatory

license tax on nonresident fishermen operating within its waters.225

However, what at first glance may appear to be a discrimination may turn out not to be when the entire system of taxation prevailing in the enacting state is considered. On the basis of overall

fairness, the Court sustained a Connecticut statute that required

nonresident stockholders to pay a state tax measured by the full

market value of their stock while resident stockholders were subject to local taxation on the market value of that stock reduced by

221 252 U.S. 60, 78–79 (1920).

222 Williams v. Fears, 179 U.S. 270, 274 (1900).

223 522 U.S. 287 (1998).

224 522 U.S. at 298.

225 Haavik v. Alaska Packers Ass’n, 263 U.S. 510 (1924).

Sec. 2—Interstate Comity Cl. 1—State Citizenship: Privileges and Immunities

976 ART. IV—STATES’ RELATIONS
the value of the real estate owned by the corporation.226 Occasional

or accidental inequality to a nonresident taxpayer is not sufficient

to defeat a scheme of taxation whose operation is generally equitable.227 In an early case the Court brushed aside as frivolous the

contention that a state violated this clause by subjecting one of its

own citizens to a property tax on a debt due from a nonresident

secured by real estate situated where the debtor resided.228

Clause 2. A person charged in any State with Treason, Felony,

or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the

State from which he fled, be delivered up, to be removed to the

State having Jurisdiction of the Crime.

INTERSTATE RENDITION

Duty to Surrender Fugitives From Justice

Although this provision is not in its nature self-executing, and

there is no express grant to Congress of power to carry it into effect, that body passed a law shortly after the Constitution was adopted, imposing upon the governor of each state the duty to deliver

up fugitives from justice found in such state.229 The Supreme Court

has accepted this contemporaneous construction as establishing the

validity of this legislation.230 The duty to surrender is not absolute

and unqualified; if the laws of the state to which the fugitive has

fled have been put in force against him, and he is imprisoned there,

226 Travellers’ Ins. Co. v. Connecticut, 185 U.S. 364, 371 (1902).

227 Maxwell v. Bugbee, 250 U.S. 525 (1919).

228 Kirtland v. Hotchkiss, 100 U.S. 491, 499 (1879). Cf. Colgate v. Harvey, 296

U.S. 404 (1935), in which discriminatory taxation of bank deposits outside the state

owned by a citizen of the state was held to infringe a privilege of national citizenship, in contravention of the Fourteenth Amendment. Colgate v. Harvey was overruled by Madden v. Kentucky, 309 U.S. 83, 93 (1940).

229 1 Stat. 302 (1793), 18 U.S.C. § 3182. The Act requires rendition of fugitives

at the request of a demanding “Territory,” as well as of a State, thus extending beyond the terms of the clause. In New York ex rel. Kopel v. Bingham, 211 U.S. 468

(1909), the Court held that the legislative extension was permissible under the territorial clause. See Puerto Rico v. Branstad, 483 U.S. 219, 229–230 (1987).

230 Roberts v. Reilly, 116 U.S. 80, 94 (1885). See also Innes v. Tobin, 240 U.S.

127 (1916). Justice Story wrote: “[T]he natural, if not the necessary conclusion is,

that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed

upon it by the Constitution”; and again, “it has, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly

given, and duties expressly enjoined thereby.” Prigg v. Pennsylvania, 41 U.S. (16 Pet.)

539, 616, 618–19 (1842).

Sec. 2—Interstate Comity Cl. 2—Interstate Rendition

ART. IV—STATES’ RELATIONS 977
the demands of those laws may be satisfied before the duty of obedience to the requisition arises.231 But, in Kentucky v. Dennison,

232

the Court held that this statute was merely declaratory of a moral

duty; that the Federal Government “has no power to impose on a

State officer, as such, any duty whatever, and compel him to perform it,” 233 and consequently that a federal court could not issue a

mandamus to compel the governor of one state to surrender a fugitive to another. Long considered a constitutional derelict, Dennison

was finally formally overruled in 1987.234 Now, states and territories may invoke the power of federal courts to enforce against state

officers this and other rights created by federal statute, including

equitable relief to compel performance of federally imposed duties.235

Fugitive From Justice Defined.—To be a fugitive from justice within the meaning of this clause, it is necessary that, in the

regular course of judicial proceedings, one have been charged with

a crime, but it is not necessary that one have left the state after

having been charged. It is sufficient that, having been charged with

a crime in one state, one is found in another state.236 And the motive that induced the departure is immaterial.237 Even if a fugitive

were brought involuntarily into the state where found by requisition from another state, he may be surrendered to a third state upon

an extradition warrant.238 A person indicted a second time for the

same offense is nonetheless a fugitive from justice by reason of the

fact that after dismissal of the first indictment, on which he was

originally indicted, he left the state with the knowledge of, or without objection by, state authorities.239 But a defendant cannot be extradited if he was only constructively present in the demanding state

231 Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 371 (1873).

232 65 U.S. (24 How.) 66 (1861); cf. Prigg v. Pennsylvania 41 U.S. (16 Pet.) 539,

612 (1842).

233 65 U.S. (24 How.) 66, 107 (1861). Congress in 1934 plugged the loophole created by this decision by making it unlawful for any person to flee from one state to

another for the purpose of avoiding prosecution in certain cases. 48 Stat. 782, 18

U.S.C. § 1073.

234 Puerto Rico v. Branstad, 483 U.S. 219 (1987). “Kentucky v. Dennison is the

product of another time. The conception of the relation between the States and the

Federal Government there announced is fundamentally incompatible with more than

a century of constitutional development.” Id. at 230.

235 483 U.S. at 230.

236 Roberts v. Reilly, 116 U.S. 80, 95 (1885). See also Strassheim v. Daily, 221

U.S. 280 (1911); Appleyard v. Massachusetts, 203 U.S. 222 (1906); Ex parte Reggel,

114 U.S. 642, 650 (1885).

237 Drew v. Thaw, 235 U.S. 432, 439 (1914).

238 Innes v. Tobin, 240 U.S. 127 (1916).

239 Bassing v. Cady, 208 U.S. 386 (1908).

Sec. 2—Interstate Comity Cl. 2—Interstate Rendition

978 ART. IV—STATES’ RELATIONS
at the time of the commission of the crime charged.240 For the purpose of determining who is a fugitive from justice, the words “treason, felony or other crime” embrace every act forbidden and made

punishable by a law of a state,241 including misdemeanors.242

Procedure for Removal.—Only after a person has been charged

with a crime in the regular course of judicial proceedings is the governor of a state entitled to make demand for his return from another state.243 The person demanded has no constitutional right to

be heard before the governor of the state in which he is found on

the question whether he has been substantially charged with crime

and is a fugitive from justice.244 The constitutionally required surrender is not to be interfered with by habeas corpus upon speculations as to what ought to be the result of a trial.245 Nor is it proper

thereby to inquire into the motives controlling the actions of the

governors of the demanding and surrendering states.246 Matters of

defense, such as the running of the statute of limitations,247 or the

contention that continued confinement in the prison of the demanding state would amount to cruel and unjust punishment,248 cannot

be heard on habeas corpus but should be tested in the courts of the

demanding state, where all parties may be heard, where all pertinent testimony will be readily available, and where suitable relief,

if any, may be fashioned. A defendant will, however, be discharged

on habeas corpus if he shows by clear and satisfactory evidence that

he was outside the demanding state at the time of the crime.249 If,

however, the evidence is conflicting, habeas corpus is not a proper

proceeding to try the question of alibi.250 The habeas court’s role is,

therefore, very limited.251

Trial of Fugitives After Removal.—There is nothing in the

Constitution or laws of the United States that exempts an offender,

240 Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903).

241 Kentucky v. Dennison, 65 U.S. (24 How.) 66, 103 (1861).

242 Taylor v. Taintor, 83 U.S. (16 Wall.) 366, 375 (1873).

243 Kentucky v. Dennison, 65 U.S. (24 How.) 66, 104 (1861); Pierce v. Creecy,

210 U.S. 387 (1908). See also Matter of Strauss, 197 U.S. 324, 325 (1905); Marbles

v. Creecy, 215 U.S. 63 (1909); Strassheim v. Daily, 221 U.S. 280 (1911).

244 Munsey v. Clough, 196 U.S. 364 (1905); Pettibone v. Nichols, 203 U.S. 192

(1906).

245 Drew v. Thaw, 235 U.S. 432 (1914).

246 Pettibone v. Nichols, 203 U.S. 192 (1906).

247 Biddinger v. Commissioner of Police, 245 U.S. 128 (1917). See also Rodman

v. Pothier, 264 U.S. 399 (1924).

248 Sweeney v. Woodall, 344 U.S. 86 (1952).

249 Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903). See also South Carolina v. Bailey, 289 U.S. 412 (1933).

250 Munsey v. Clough, 196 U.S. 364, 375 (1905).

251 Michigan v. Doran, 439 U.S. 282, 289 (1978). In California v. Superior Court,

482 U.S. 400 (1987), the Court reiterated that extradition is a “summary procedure.”

Sec. 2—Interstate Comity Cl. 2—Interstate Rendition

ART. IV—STATES’ RELATIONS 979
brought before the courts of a state for an offense against its laws,

from trial and punishment, even though he was brought from another state by unlawful violence,252 or by abuse of legal process,253

and a fugitive lawfully extradited from another state may be tried

for an offense other than that for which he was surrendered.254 The

rule is different, however, with respect to fugitives surrendered by

a foreign government, pursuant to treaty. In that case the offender

may be tried only “for the offense with which he is charged in the

proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge,

to return to the country from whose asylum he had been forcibly

taken under those proceedings.” 255

Clause 3. No person held to Service or Labour in one State,

under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from

such Service or Labour, but shall be delivered up on Claim of

the Party to whom such Service or Labour may be due.

FUGITIVES FROM LABOR

This clause contemplated the existence of a positive unqualified right on the part of the owner of a slave which no state law

could in any way regulate, control, or restrain. Consequently the

owner of a slave had the same right to seize and repossess him in

another state, as the local laws of his own state conferred upon him,

and a state law that penalized such seizure was held unconstitutional.256 Congress had the power and the duty, which it exercised

by the Act of February 12, 1793,257 to carry into effect the rights

given by this section,258 and the states had no concurrent power to

legislate on the subject.259 However, a state statute providing a penalty for harboring a fugitive slave was held not to conflict with this

clause because it did not affect the right or remedy either of the

252 Ker v. Illinois, 119 U.S. 436, 444 (1886); Mahon v. Justice, 127 U.S. 700, 707,

712, 714 (1888).

253 Cook v. Hart, 146 U.S. 183, 193 (1892); Pettibone v. Nichols, 203 U.S. 192,

215 (1906).

254 Lascelles v. Georgia, 148 U.S. 537, 543 (1893).

255 United States v. Rauscher, 119 U.S. 407, 430 (1886).

256 Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 612 (1842).

257 1 Stat. 302 (1793).

258 Jones v. Van Zandt, 46 U.S. (5 How.) 215, 229 (1847); Ableman v. Booth, 62

U.S. (21 How.) 506 (1859).

259 Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 625 (1842).

Sec. 2—Interstate Comity Cl. 2—Interstate Rendition

980 ART. IV—STATES’ RELATIONS
master or the slave; by it the state simply prescribed a rule of conduct for its own citizens in the exercise of its police power.260

SECTION 3. Clause 1. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected

within the Jurisdiction of any other State; nor any State be formed

by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as

well as of the Congress.

DOCTRINE OF THE EQUALITY OF STATES

“Equality of constitutional right and power is the condition of

all the States of the Union, old and new.” 261 This doctrine, now a

truism of constitutional law, did not find favor in the Constitutional Convention. That body struck out from this section, as reported by the Committee on Detail, two sections to the effect that

“new States shall be admitted on the same terms with the original

States. But the Legislature may make conditions with the new States

concerning the public debt which shall be subsisting.” 262 Opposing

this action, Madison insisted that “the Western States neither would

nor ought to submit to a union which degraded them from an equal

rank with the other States.” 263 Nonetheless, after further expressions of opinion pro and con, the Convention voted nine states to

two to delete the requirement of equality.264

Prior to this time, however, Georgia and Virginia had ceded to

the United States large territories held by them, upon condition that

new states should be formed therefrom and admitted to the Union

on an equal footing with the original states.265 Since the admission

of Tennessee in 1796, Congress has included in each state’s act of

260 Moore v. Illinois, 55 U.S. (14 How.) 13, 17 (1853).

261 Escanaba Co. v. City of Chicago, 107 U.S. 678, 689 (1883).

262 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 454 (rev. ed.

1937).

263 Id.

264 Id. The present provision was then adopted as a substitute. Id. at 455.

265 Pollard v. Hagan, 44 U.S. (3 How.) 212, 221 (1845). The Continental Congress in responding in the Northwest Ordinance, on July 13, 1787, provided that

when each of the designated states in the territorial area achieved a population of

60,000 free inhabitants it was to be admitted “on an equal footing with the original

States, in all respects whatever.” An Ordinance for the Government of the Territory

of the United States Northwest of the River Ohio, Art. V, 5 JOURNALS OF CONGRESS 752–

754 (1823 ed.), reprinted in C. Tansill ed., Documents Illustrative of the Formation

of the Union of the American States, H. DOC. NO. 398, 69th Cong., 1st Sess. (1927),

47, 54.

Sec. 3—New States Cl. 1—Admission of New States to Union

ART. IV—STATES’ RELATIONS 981
admission a clause providing that the state enters the Union “on

an equal footing with the original States in all respects whatever.” 266 With the admission of Louisiana in 1812, the principle of

equality was extended to states created out of territory purchased

from a foreign power.267 By the Joint Resolution of December 29,

1845, Texas, then an independent Nation, “was admitted into the

Union on an equal footing with the original States in all respects

whatever.” 268

However, if the doctrine rested merely on construction of the

declarations in the admission acts, then the conditions and limitations imposed by Congress and agreed to by the states in order to

be admitted would nonetheless govern, since they must be construed along with the declarations. Again and again, however, in

adjudicating the rights and duties of states admitted after 1789,

the Supreme Court has referred to the condition of equality as if it

were an inherent attribute of the Federal Union.269 That the doctrine is of constitutional stature was made evident at least by the

time of the decision in Pollard’s Lessee, if not before.270 Pollard’s

Lessee involved conflicting claims by the United States and Alabama of ownership of certain partially inundated lands on the shore

of the Gulf of Mexico in Alabama. The enabling act for Alabama

had contained both a declaration of equal footing and a reservation

to the United States of these lands.271 Rather than an issue of mere

land ownership, the Court saw the question as one concerning sovereignty and jurisdiction of the states. Because the original states

retained sovereignty and jurisdiction over the navigable waters and

the soil beneath them within their boundaries, retention by the United

States of either title to or jurisdiction over common lands in the

new states would bring those states into the Union on less than an

equal footing with the original states. This, the Court would not

permit. “Alabama is, therefore, entitled to the sovereignty and jurisdiction over all the territory within her limits, subject to the common law, to the same extent that Georgia possessed it, before she

266 1 Stat. 491 (1796). Prior to Tennessee’s admission, Vermont and Kentucky

were admitted with different but conceptually similar terminology. 1 Stat. 191 (1791);

1 Stat. 189 (1791).

267 2 Stat. 701, 703 (1812).

268 Justice Harlan, speaking for the Court, in United States v. Texas, 143 U.S.

621, 634 (1892) (citing 9 Stat. 108).

269 Permoli v. Municipality No. 1, 44 U.S. (3 How.) 589, 609 (1845); McCabe v.

Atchison, T. & S.F. Ry., 235 U.S. 151 (1914); Illinois Cent. R.R. v. Illinois, 146 U.S.

387, 434 (1892); Knight v. U.S. Land Association, 142 U.S. 161, 183 (1891); Weber v.

Harbor Commissioners, 85 U.S. (18 Wall.) 57, 65 (1873).

270 Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212 (1845). See Mayor of New

Orleans v. United States, 35 U.S. (10 Pet.) 662 (1836); Permoli v. Municipality No. 1

of New Orleans, 44 U.S. (3 How.) 588 (1845).

271 3 Stat. 489, 492 (1819).

Sec. 3—New States Cl. 1—Admission of New States to Union

982 ART. IV—STATES’ RELATIONS
ceded it to the United States. To maintain any other doctrine, is to

deny that Alabama has been admitted into the union on an equal

footing with the original states, the constitution, laws, and compact, to the contrary notwithstanding. . . . [T]o Alabama belong the

navigable waters and soils under them, in controversy in this case,

subject to the rights surrendered by the Constitution to the United

States; and no compact that might be made between her and the

United States could diminish or enlarge these rights.”

272

Finally, in 1911, the Court invalidated a restriction on the change

of location of the state capital, which Congress had imposed as a

condition for the admission of Oklahoma, on the ground that Congress may not embrace in an enabling act conditions relating wholly

to matters under state control.273 In an opinion, from which Justices Holmes and McKenna dissented, Justice Lurton argued: “The

power is to admit ‘new States into this Union,’ ‘This Union’ was

and is a union of States, equal in power, dignity and authority, each

competent to exert that residuum of sovereignty not delegated to

the United States by the Constitution itself. To maintain otherwise

would be to say that the Union, through the power of Congress to

admit new States, might come to be a union of States unequal in

power, as including States whose powers were restricted only by

the Constitution, with others whose powers had been further restricted by an act of Congress accepted as a condition of admission.” 274

The equal footing doctrine is generally a limitation upon the

terms by which Congress admits a state.275 That is, states must be

admitted on an equal footing in the sense that Congress may not

272 Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 228–29 (1845) (emphasis

supplied). See also id. at 222–23. A unanimous Court explained the rule on state

ownership of navigable waters in PPL Montana, LLC v. Montana, 565 U.S. ___, No.

10–218, slip op. (2012). Under the equal footing doctrine, a State, upon entering the

Union, gains title to the beds of waters then navigable or tidally influenced, subject

only to federal powers under the Constitution (e.g., the Commerce Clause). By contrast, the United States retains any title vested in it to lands beneath waters not

then navigable or tidally influenced. For the distinct purpose of the equal footing

doctrine, “navigable waters” are those waters used, or susceptible to use, for trade

and travel by customary means at the time of statehood. Furthermore, the “navigability” of rivers is determined on a segment-by-segment basis, and lands under portions of a stream that were impassable at statehood were not conveyed by force of

the doctrine.

273 Coyle v. Smith, 221 U.S. 559 (1911).

274 221 U.S. at 567.

275 See South Carolina v. Katzenbach, 383 U.S. 301, 328–29 (1966). However, in

recent years the Court has relied on the general principle of “constitutional equality” among the states to strike down both federal and state laws. See, e.g., Franchise Tax Bd. of Cal. v. Hyatt, 578 U.S. ___, No. 14–1175, slip op. at 7 (2016); Shelby

Cty. v. Holder, 570 U.S. ___, No. 12–96, slip op. at 9 (citing Nw. Austin Mun. Util.

Dist. No. One v. Holder, 557 U.S. 193, 203 (2009)).

Sec. 3—New States Cl. 1—Admission of New States to Union

ART. IV—STATES’ RELATIONS 983
exact conditions solely as a tribute for admission, but it may, in

the enabling or admitting acts or subsequently impose requirements that would be or are valid and effectual if the subject of congressional legislation after admission.276 Thus, Congress may embrace in an admitting act a regulation of commerce among the states

or with Indian tribes or rules for the care and disposition of the

public lands or reservations within a state. “[I]n every such case

such legislation would derive its force not from any agreement or

compact with the proposed new State, nor by reason of its acceptance of such enactment as a term of admission, but solely because

the power of Congress extended to the subject, and, therefore, would

not operate to restrict the State’s legislative power in respect of any

matter which was not plainly within the regulating power of Congress.” 277

Until recently the requirement of equality has applied primarily to political standing and sovereignty rather than to economic or

property rights.278 Broadly speaking, every new state is entitled to

exercise all the powers of government which belong to the original

states of the Union.279 It acquires general jurisdiction, civil and criminal, for the preservation of public order, and the protection of persons and property throughout its limits even as to federal lands,

except where the Federal Government has reserved 280 or the state

has ceded some degree of jurisdiction to the United States, and, of

course, no state may enact a law that would conflict with the constitutional powers of the United States. Consequently, it has jurisdiction to tax private activities carried on within the public domain

(although not to tax the Federal lands), if the tax does not constitute an unconstitutional burden on the Federal Government.281 Statutes applicable to territories, e.g., the Northwest Territory Ordinance of 1787, cease to have any operative force when the territory,

276 Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 224–25, 229–30 (1845); Coyle

v. Smith, 221 U.S. 559, 573–74 (1911). See also Bolln v. Nebraska, 176 U.S. 83, 89

(1900); Ward v. Race Horse, 163 U.S. 504, 514 (1895); Escanaba Co. v. City of Chicago, 107 U.S. 678, 688 (1882); Withers v. Buckley, 61 U.S. (20 How.) 84, 92 (1857).

277 Coyle v. Smith, 221 U.S. 559, 574 (1911). Examples include Stearns v. Minnesota, 179 U.S. 223 (1900) (congressional authority to dispose of and to make rules

and regulations respecting the property of the United States); United States v. Sandoval,

231 U.S. 28 (1913) (regulating Indian tribes and intercourse with them); United States

v. Chavez, 290 U.S. 357 (1933) (same); Willamette Iron Bridge Co. v. Hatch, 125

U.S. 1, 9–10 (1888) (prevention of interference with navigability of waterways under Commerce Clause).

278 United States v. Texas, 339 U.S. 707, 716 (1950); Stearns v. Minnesota, 179

U.S. 223, 245 (1900).

279 Pollard’s Lessee v. Hagan, 44 U.S. (3 How.) 212, 223 (1845); McCabe v. Atchison

T. & S.F. Ry., 235 U.S. 151 (1914).

280 Van Brocklin v. Tennessee, 117 U.S. 151, 167 (1886).

281 Wilson v. Cook, 327 U.S. 474 (1946).

Sec. 3—New States Cl. 1—Admission of New States to Union

984 ART. IV—STATES’ RELATIONS
or any part thereof, is admitted to the Union, except as adopted by

state law.282 When the enabling act contains no exclusion of jurisdiction as to crimes committed on Indian reservations by persons

other than Indians, state courts are vested with jurisdiction.283 But

the constitutional authority of Congress to regulate commerce with

Indian tribes is not inconsistent with the equality of new states,284

and conditions inserted in the New Mexico Enabling Act forbidding

the introduction of liquor into Indian territory were therefore valid.285

Similarly, Indian treaty rights to hunt, fish, and gather on lands

ceded to the Federal Government were not extinguished by statehood. These “usufructuary” rights were subject to reasonable state

regulation, and hence were not irreconcilable with state sovereignty over natural resources.286

Admission of a state on an equal footing with the original states

involves the adoption as citizens of the United States of those whom

Congress makes members of the political community and who are

recognized as such in the formation of the new state.287

Judicial Proceedings Pending on Admission of New States

Whenever a territory is admitted into the Union, the cases pending in the territorial court that are of exclusive federal cognizance

are transferred to the federal court having jurisdiction over the area;

cases not cognizable in the federal courts are transferred to the tribunals of the new state, and those over which federal and state courts

have concurrent jurisdiction may be transferred either to the state

or federal courts by the party possessing the option under existing

law.288 Where Congress neglected to make provision for disposition

of certain pending cases in an enabling act for the admission of a

state to the Union, a subsequent act supplying the omission was

held valid.289 After a case, begun in a United States court of a territory, is transferred to a state court under the operation of the en282 Permoli v. First Municipality, 44 U.S. (3 How.) 589, 609 (1845); Sands v. Manistee

River Imp. Co., 123 U.S. 288, 296 (1887); see also Withers v. Buckley, 61 U.S. (20

How.) 84, 92 (1858); Huse v. Glover, 119 U.S. 543 (1886); Willamette Iron Bridge

Co. v. Hatch, 125 U.S. 1, 9 (1888); Cincinnati v. Louisville & Nashville R.R., 223

U.S. 390 (1912).

283 Draper v. United States, 164 U.S. 240 (1896), following United States v.

McBratney, 104 U.S. 621 (1882).

284 Dick v. United States, 208 U.S. 340 (1908); Ex parte Webb, 225 U.S. 663

(1912).

285 United States v. Sandoval, 231 U.S. 28 (1913).

286 Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204 (1999)

(overruling Ward v. Race Horse, 163 U.S. 504 (1896)).

287 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 170 (1892).

288 Baker v. Morton, 79 U.S. (12 Wall.) 150, 153 (1871).

289 Freeborn v. Smith, 69 U.S. (2 Wall.) 160 (1865).

Sec. 3—New States Cl. 1—Admission of New States to Union

ART. IV—STATES’ RELATIONS 985
abling act and the state constitution, the appellate procedure is governed by the state statutes and procedures.290

The new state, without the express or implied assent of Congress, cannot enact that the records of the former territorial court

of appeals should become records of its own courts or provide by

law for proceedings based thereon.291

Property Rights of States to Soil Under Navigable Waters

The “equal footing” doctrine has had an important effect on the

property rights of new states to soil under navigable waters 292 and

tidally influenced waters.293 In Pollard’s Lessee v. Hagan,

294 as was

observed above, the Court held that the original states had reserved to themselves the ownership of the shores of navigable waters and the soils under them, and that under the principle of equality the title to the soils beneath navigable water passes to a new

state upon admission. The principle of this case, which also applies

to tidally influenced waters, supplies the rule of decision in many

property-claims cases.295

After refusing to extend the inland-water rule of Pollard’s Lessee to the three mile marginal belt under the ocean along the coast,296

the Court applied the principle in reverse in United States v. Texas.

297

Because the original states had been found not to own the soil un290 John v. Paullin, 231 U.S. 583 (1913).

291 Hunt v. Palao, 45 U.S. (4 How.) 589 (1846). Cf. Benner v. Porter, 50 U.S. (9

How.) 235, 246 (1850).

292 “Navigable waters”, for equal footing purposes, are those waters used, or susceptible to use, for trade and travel at the time of statehood. PPL Montana, LLC v.

Montana, 565 U.S. ___, No. 10–218, slip op. at 11–13 (2012).

293 E.g., Knight v. U.S. Land Association, 142 U.S. 161, 183 (1891).

294 44 U.S. (3 How.) 212, 223 (1845). See also Martin v. Waddell, 41 U.S. (16

Pet.) 367, 410 (1842).

295 See PPL Montana, LLC v. Montana, 565 U.S. ___, No. 10–218, slip op. (2012)

(Montana not able to charge rent to hydroelectric facilities located on portions of

rivers that were impassable when Montana became a State); Phillips Petroleum Co.

v. Mississippi, 484 U.S. 469 (1988) (confirming language in earlier cases recognizing

state sovereignty over tidal but nonnavigable lands); Utah Division of State Lands

v. United States, 482 U.S. 193 (1987) (applying presumption against congressional

intent to defeat state title to find inadequate federal reservation of lake bed); Idaho

v. United States, 533 U.S. 262 (2001) (presumption rebutted by indications—some

occurring after statehood—that Congress intended to reserve certain submerged lands

for benefit of an Indian tribe); Oregon ex rel. State Land Bd. v. Corvallis Sand &

Gravel Co., 429 U.S. 363 (1977) (doctrine requires utilization of state common law

rather than federal to determine ownership of land underlying river that is navigable but not an interstate boundary); Shively v. Bowlby, 152 U.S. 1 (1894) (whether

Oregon or a pre-statehood grantee from the United States of riparian lands near

mouth of Columbia River owned soil below high-water mark).

296 United States v. California, 332 U.S. 19, 38 (1947); United States v. Louisiana, 339 U.S. 699 (1950).

297 339 U.S. 707, 716 (1950). See United States v. Maine, 420 U.S. 515 (1975)

(unanimously reaffirming the California, Louisiana, and Texas cases).

Sec. 3—New States Cl. 1—Admission of New States to Union

986 ART. IV—STATES’ RELATIONS
der the three mile belt, Texas, which concededly did own this soil

before its annexation to the United States, was held to have surrendered its dominion and sovereignty over it, upon entering the Union

on terms of equality with the existing states. To this extent, the

earlier rule that unless otherwise declared by Congress the title to

every species of property owned by a territory passes to the state

upon admission 298 has been qualified. However, when Congress,

through passage of the Submerged Lands Act of 1953,299 surrendered its paramount rights to natural resources in the marginal seas

to certain states, without any corresponding cession to all states,

the transfer was held to entail no abdication of national sovereignty over control and use of the oceans in a manner destructive

of the equality of the states.300

While the territorial status continues, the United States has power

to convey property rights, such as rights in soil below the highwater mark along navigable waters,301 or the right to fish in designated waters,302 which will be binding on the state.

Clause 2. The Congress shall have Power to dispose of and

make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice

any Claims of the United States, or of any particular State.

PROPERTY AND TERRITORY: POWERS OF CONGRESS

Methods of Disposing of Property

The Constitution is silent as to the methods of disposing of property of the United States. In United States v. Gratiot,

303 in which

the validity of a lease of lead mines on government lands was put

298 Brown v. Grant, 116 U.S. 207, 212 (1886).

299 67 Stat. 29, 43 U.S.C. §§ 1301–1315.

300 Alabama v. Texas, 347 U.S. 272, 274–77, 281 (1954). Justice Black and Douglas dissented.

301 Shively v. Bowlby, 152 U.S. 1, 47 (1894). See also Joy v. St. Louis, 201 U.S.

332 (1906).

302 United States v. Winans, 198 U.S. 371, 378 (1905); Seufert Bros. v. United

States, 249 U.S. 194 (1919). A fishing right granted by treaty to Indians does not

necessarily preclude the application to Indians of state game laws regulating the

time and manner of taking fish. New York ex rel. Kennedy v. Becker, 241 U.S. 556

(1916). See also Metlakatla Indians v. Egan, 369 U.S. 45, 54, 57–59 (1962); Kake

Village v. Egan, 369 U.S. 60, 64–65, 67–69, 75–76 (1962). But it has been held to be

violated by exacting a license fee that is both regulatory and revenue-producing. Tulee

v. Washington, 315 U.S. 681 (1942).

303 39 U.S. (14 Pet.) 526 (1840).

Sec. 3—New States Cl. 2—Property of the United States

ART. IV—STATES’ RELATIONS 987
in issue, the contention was advanced that “disposal is not letting

or leasing,” and that Congress has no power “to give or authorize

leases.” The Court sustained the leases, saying “the disposal must

be left to the discretion of Congress.” 304 Nearly a century later this

power to dispose of public property was relied upon to uphold the

generation and sale of electricity by the Tennessee Valley Authority. The reasoning of the Court ran thus: the potential electrical energy made available by the construction of a dam in the exercise of

its constitutional powers is property which the United States is entitled to reduce to possession; to that end it may install the equipment necessary to generate such energy. In order to widen the market and make a more advantageous disposition of the product, it

may construct transmission lines and may enter into a contract with

a private company for the interchange of electric energy.305

Public Lands: Federal and State Powers Thereover

No appropriation of public lands may be made for any purpose

except by authority of Congress.306 However, Congress was held to

have acquiesced in the long-continued practice of withdrawing land

from the public domain by Executive Orders.307 In 1976 Congress

enacted legislation that established procedures for withdrawals and

that explicitly disclaimed continued acquiescence in any implicit executive withdrawal authority.308 The comprehensive authority of Congress over public lands includes the power to prescribe the times,

conditions, and mode of transfer thereof and to designate the persons to whom the transfer shall be made,309 to declare the dignity

and effect of titles emanating from the United States,310 to determine the validity of grants which antedate the government’s acquisition of the property,311 to exempt lands acquired under the homestead laws from previously contracted debts,312 to withdraw land

304 39 U.S. at 533, 538.

305 Ashwander v. TVA, 297 U.S. 288, 335–40 (1936). See also Alabama Power

Co. v. Ickes, 302 U.S. 464 (1938).

306 United States v. Fitzgerald, 40 U.S. (15 Pet.) 407, 421 (1841). See also California v. Deseret Water, Oil & Irrigation Co., 243 U.S. 415 (1917); Utah Power &

Light Co. v. United States, 243 U.S. 389 (1917).

307 Sioux Tribe v. United States, 316 U.S. 317 (1942); United States v. Midwest

Oil Co., 236 U.S. 459, 469 (1915).

308 Federal Land Policy and Management Act, Pub. L. 94–579, § 704(a); 90 Stat.

2792 (1976).

309 Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99 (1872); see also Irvine v. Marshall, 61 U.S. (20 How.) 558 (1858); Emblem v. Lincoln Land Co., 184 U.S. 660, 664

(1902).

310 Bagnell v. Broderick, 38 U.S. (13 Pet.) 436, 450 (1839). See also Field v. Seabury,

60 U.S. (19 How.) 323, 332 (1857).

311 Tameling v. United States Freehold & Immigration Co., 93 U.S. 644, 663 (1877).

See also Maxwell Land-Grant Case, 121 U.S. 325, 366 (1887).

312 Ruddy v. Rossi, 248 U.S. 104 (1918).

Sec. 3—New States Cl. 2—Property of the United States

988 ART. IV—STATES’ RELATIONS
from settlement and to prohibit grazing thereon,313 to prevent unlawful occupation of public property and to declare what are nuisances, as affecting such property, and provide for their abatement,314 and to prohibit the introduction of liquor on lands purchased

and used for an Indian colony.315 Congress may limit the disposition of the public domain to a manner consistent with its views of

public policy. A restriction inserted in a grant of public lands to a

municipality which prohibited the grantee from selling or leasing

to a private corporation the right to sell or sublet water or electric

energy supplied by the facilities constructed on such land was held

valid.316

Unanimously upholding a federal law to protect wild-roaming

horses and burros on federal lands, the Court restated the applicable principles governing Congress’s power under this clause. It

empowers Congress to act as both proprietor and legislature over

the public domain; Congress has complete power to make those “needful rules” which in its discretion it determines are necessary. When

Congress acts with respect to those lands covered by the clause, its

legislation overrides conflicting state laws.317 Absent action by Congress, however, states may in some instances exercise some jurisdiction over activities on federal lands.318

No state may tax public lands of the United States within its

borders,319 nor may state legislation interfere with the power of Congress under this clause or embarrass its exercise.320 Thus, by virtue of a Treaty of 1868, according self-government to Navajos living on an Indian Reservation in Arizona, the tribal court, rather

than the courts of that state, had jurisdiction over a suit for a debt

owed by an Indian resident thereof to a non-Indian conducting a

store on the reservation under federal license.321 The question whether

title to land that has once been the property of the United States

has passed from it must be resolved by the laws of the United States;

after title has passed, “that property, like all other property in the

state, is subject to the state legislation; so far as that legislation is

313 Light v. United States, 220 U.S. 523 (1911). See also The Yosemite Valley Case,

82 U.S. (15 Wall.) 77 (1873).

314 Camfield v. United States, 167 U.S. 518, 525 (1897). See also Jourdan v. Barrett, 45 U.S. (4 How.) 169 (1846); United States v. Waddell, 112 U.S. 76 (1884).

315 United States v. McGowan, 302 U.S. 535 (1938).

316 United States v. City of San Francisco, 310 U.S. 16 (1940).

317 Kleppe v. New Mexico, 426 U.S. 529 (1976).

318 California Coastal Comm’n v. Granite Rock Co., 480 U.S. 572 (1987).

319 Van Brocklin v. Tennessee, 117 U.S. 151 (1886); cf. Wilson v. Cook, 327 U.S.

474 (1946).

320 Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99 (1872). See also Irvine v. Marshall, 61 U.S. (20 How.) 558 (1858); Emblem v. Lincoln Land Co., 184 U.S. 660, 664

(1902).

321 Williams v. Lee, 358 U.S. 217 (1959).

Sec. 3—New States Cl. 2—Property of the United States

ART. IV—STATES’ RELATIONS 989
consistent with the admission that the title passed and vested according to the laws of the United States.” 322 In construing a conveyance by the United States of land within a state, the settled and

reasonable rule of construction of the state affords a guide in determining what impliedly passes to the grantee as an incident to land

expressly granted.323 But a state statute enacted subsequently to a

federal grant cannot operate to vest in the state rights that either

remained in the United States or passed to its grantee.324

Territories: Powers of Congress Thereover

In the territories, Congress has the entire dominion and sovereignty, national and local, and has full legislative power over all

subjects upon which a state legislature might act.325 It may legislate directly with respect to the local affairs of a territory or it may

transfer that function to a legislature elected by the citizens thereof,326

which will then be invested with all legislative power except as limited by the Constitution of the United States and acts of Congress.327 In 1886, Congress prohibited the enactment by territorial

legislatures of local or special laws on enumerated subjects.328 The

constitutional guarantees of private rights are applicable in territories which have been made a part of the United States by congressional action 329 but not in unincorporated territories.330 Congress

322 Wilcox v. McConnel, 38 U.S. (13 Pet.) 498, 517 (1839).

323 Oklahoma v. Texas, 258 U.S. 574, 595 (1922).

324 United States v. Oregon, 295 U.S. 1, 28 (1935).

325 Simms v. Simms, 175 U.S. 162, 168 (1899). See also United States v. McMillan,

165 U.S. 504, 510 (1897); El Paso & N.E. Ry. v. Gutierrez, 215 U.S. 87 (1909); First

Nat’l Bank v. County of Yankton, 101 U.S. 129, 133 (1880).

326 Binns v. United States, 194 U.S. 486, 491 (1904). See also Sere v. Pitot, 10

U.S. (6 Cr.) 332, 336 (1810); Murphy v. Ramsey, 114 U.S. 15, 44 (1885).

327 Walker v. New Mexico & So. Pac. R.R., 165 U.S. 593, 604 (1897); Simms v.

Simms, 175 U.S. 162, 163 (1899); Wagoner v. Evans, 170 U.S. 588, 591 (1898).

328 24 Stat. 170 (1886).

329 Downes v. Bidwell, 182 U.S. 244, 271 (1901). See also Mormon Church v.

United States, 136 U.S. 1, 14 (1890); ICC v. United States ex rel. Humboldt Steamship Co., 224 U.S. 474 (1912).

330 Downes v. Bidwell, 182 U.S. 244 (1901); Dorr v. United States, 195 U.S. 138

(1904); Balzac v. Porto Rico, 258 U.S. 298 (1922) (collectively, the Insular Cases).

The guarantees of fundamental rights apply to persons in Puerto Rico, id. at 312–

13, but what these are and how they are to be determined, in light of Balzac’s holding that the right to a civil jury trial was not protected. The vitality of the Insular

Cases has been questioned by some Justices (Reid v. Covert, 354 U.S. 1, 14 (1957)

(plurality opinion); Torres v. Puerto Rico, 442 U.S. 465, 474, 475 (1979) (concurring

opinion of four Justices)), but there is no doubt that the Court adheres to it (United

States v. Verdugo-Urquidez, 494 U.S. 259, 268 (1990); Harris v. Rosario, 446 U.S.

651 (1980)). Applying stateside rights in Puerto Rico are Calero-Toledo v. Pearson

Yacht Leasing Co., 416 U.S. 663 (1974) (procedural due process); Examining Bd. v.

Flores de Otero, 426 U.S. 572 (1976) (equal protection principles); Torres v. Puerto

Rico, 442 U.S. 465 (1979) (search and seizure); Harris v. Rosario, supra (same); Rodriguez v. Popular Democratic Party, 457 U.S. 1, 7–8 (1982) (equality of voting rights);

Sec. 3—New States Cl. 2—Property of the United States

990 ART. IV—STATES’ RELATIONS
may establish, or may authorize the territorial legislature to create, legislative courts whose jurisdiction is derived from statutes enacted pursuant to this section other than from Article III.331 Such

courts may exercise admiralty jurisdiction despite the fact that such

jurisdiction may be exercised in the states only by constitutional

courts.332

SECTION 4. The United States shall guarantee to every State

in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the

Legislature, or of the Executive (when the Legislature cannot

be convened) against domestic Violence.

GUARANTEE OF REPUBLICAN FORM OF

GOVERNMENT

The first clause of this section, in somewhat different language,

was contained in the Virginia Plan introduced in the Convention

and was obviously attributable to Madison.333 Through the various

permutations into its final form,334 the object of the clause seems

Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328, 331

n.1 (1986) (First Amendment speech). See also Califano v. Torres, 435 U.S. 1, 4 n.6

(1978) (right to travel assumed). Puerto Rico is, of course, not the only territory that

is the subject of the doctrine of the Insular Cases. E.g., Ocampo v. United States,

234 U.S. 91 (1914) (Philippines and Sixth Amendment jury trial); Hawaii v. Mankichi,

190 U.S. 197 (1903) (grand jury indictment and trial by jury).

331 American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 546 (1828). See also Clinton v. Englebrecht, 80 U.S. (13 Wall.) 434, 447 (1872); Hornbuckle v. Toombs, 85

U.S. (18 Wall.) 648, 655 (1874); Reynolds v. United States, 98 U.S. 145, 154 (1879);

The “City of Panama,” 101 U.S. 453, 460 (1880); McAllister v. United States, 141

U.S. 174, 180 (1891); United States v. McMillan, 165 U.S. 504, 510 (1897); Romeu v.

Todd, 206 U.S. 358, 368 (1907).

332 American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 545 (1828).

333 “Resd. that a Republican government . . . ought to be guaranteed by the United

States to each state.” 1 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787

22 (rev. ed. 1937). In a letter in April, 1787, to Randolph, who formally presented

the Virginia Plan to the Convention, Madison had suggested that “an article ought

to be inserted expressly guaranteeing the tranquility of the states against internal

as well as external danger. . . . Unless the Union be organized efficiently on republican principles innovations of a much more objectionable form may be obtruded.” 2

WRITINGS OF JAMES MADISON 336 (G. Hunt ed., 1900). On the background of the clause,

see W. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION ch. 1 (1972).

334 Thus, on June 11, the language of the provision was on Madison’s motion

changed to: “Resolved that a republican constitution and its existing laws ought to

be guaranteed to each state by the United States.” 1 M. FARRAND, THE RECORDS OF THE

FEDERAL CONVENTION OF 1787 193–194, 206 (rev. ed. 1937). Then, on July 18, Gouverneur

Morris objected to this language on the ground that “[h]e should be very unwilling

that such laws as exist in R. Island ought to be guaranteed to each State of the

Union.” 2 id. at 47. Madison then suggested language “that the Constitutional authority of the States shall be guaranteed to them respectively against domestic as

Sec. 4—Obligations of United States to States

ART. IV—STATES’ RELATIONS 991
clearly to have been more than an authorization for the Federal

Government to protect states against foreign invasion or internal

insurrection,335 a power seemingly already conferred in any case.336

No one can now resurrect the full meaning of the clause and intent

which moved the Framers to adopt it, but with the exception of the

reliance for a brief period during Reconstruction the authority contained within the confines of the clause has been largely unexplored.337

In Luther v. Borden,

338 the Supreme Court established the doctrine that questions arising under this section are political, not judicial, in character and that “it rests with Congress to decide what

government is the established one in a State . . . as well as its republican character.” 339 Texas v. White 340 held that the action of the

President in setting up provisional governments at the conclusion

of the war was justified, if at all, only as an exercise of his powers

as Commander-in-Chief and that such governments were to be regarded merely as provisional regimes to perform the functions of

government pending action by Congress. On the ground that the

issues were not justiciable, the Court in the early part of this century refused to pass on a number of challenges to state governmental reforms and thus made the clause in effect noncognizable by the

courts in any matter,341 a status from which the Court’s opinion in

well as foreign violence,” whereas Randolph wanted to add to this the language “and

that no State be at liberty to form any other than a Republican Govt.” Wilson then

moved, “as a better expression of the idea,” almost the present language of the section, which was adopted. Id. at 47–49.

335 Thus, Randolph on June 11, supporting Madison’s version pending then, said

that “a republican government must be the basis of our national union; and no state

in it ought to have it in their power to change its government into a monarchy.” 1

id. at 206. Again, on July 18, when Wilson and Mason indicated their understanding that the object of the proposal was “merely” to protect states against violence,

Randolph asserted: “The Resoln. has 2 Objects. 1. to secure Republican government.

2. to suppress domestic commotions. He urged the necessity of both these provisions.” 2 id. at 47. Following speakers alluded to the dangers of monarchy being

created peacefully as necessitating the provision. Id. at 48. See W. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION ch. 2 (1972).

336 See Article I, § 8, cl. 15.

337 See generally W. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION (1972).

338 48 U.S. (7 How.) 1 (1849).

339 48 U.S. at 42.

340 74 U.S. (7 Wall.) 700, 729 (1869). In Georgia v. Stanton, 73 U.S. (6 Wall.) 50

(1868), the state attempted to attack Reconstruction legislation on the premise that

it already had a republican form of government and that Congress was thus not

authorized to act. The Court viewed the congressional decision as determinative.

341 Pacific States Tel. Co. v. Oregon, 223 U.S. 118 (1912); Kiernan v. City of Portland, 223 U.S. 151 (1912); Davis v. Ohio, 241 U.S. 565 (1916); Ohio v. Akron Park

Dist., 281 U.S. 74 (1930); O’Neill v. Leamer, 239 U.S. 244 (1915); Highland Farms

Dairy v. Agnew, 300 U.S. 608 (1937). But in certain earlier cases the Court had disposed of Guarantee Clause questions on the merits. Forsyth v. City of Hammond,

166 U.S. 506 (1897); Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875).

Sec. 4—Obligations of United States to States

992 ART. IV—STATES’ RELATIONS
Baker v. Carr,

342 despite its substantial curbing of the political question doctrine, did not release it.343

Similarly, in Luther v. Borden,

344 the Court indicated that it rested

with Congress to determine the means proper to fulfill the guarantee of protection to the states against domestic violence. Chief Justice Taney declared that Congress might have placed it in the power

of a court to decide when the contingency had happened that required the Federal Government to interfere, but that instead Congress had by the act of February 28, 1795,345 authorized the President to call out the militia in case of insurrection against the

government of any state. It followed, said Taney, that the President “must, of necessity, decide which is the government, and which

party is unlawfully arrayed against it, before he can perform the

duty imposed upon him by the act of Congress,” 346 which determination was not subject to review by the courts.

In recent years, the authority of the United States to use troops

and other forces in the states has not generally been derived from

this clause and it has been of little importance.

342 369 U.S. 186, 218–32 (1962). In the Court’s view, Guarantee Clause questions were nonjusticiable because resolution of them had been committed to Congress and not because they involved matters of state governmental structure.

343 Subsequently, the Court, speaking through Justice O’Connor, raised without

deciding the possibility that the Guarantee Clause is justiciable and is a constraint

upon Congress’s power to regulate the activities of the states. New York v. United

States, 505 U.S. 144, 183–85 (1992); Gregory v. Ashcroft, 501 U.S. 452, 463 (1991).

The opinions draw support from a powerful argument for using the Guarantee Clause

as a judicially enforceable limit on federal power. Merritt, The Guarantee Clause

and State Autonomy: Federalism for a Third Century, 88 COLUM. L. REV. 1 (1988).

344 48 U.S. (7 How.) 1 (1849).

345 1 Stat. 424.

346 Luther v. Borden, 48 U.S. (7 How.) 1, 43 (1849).

Sec. 4—Obligations of United States to States

ART. IV—STATES’ RELATIONS 993