829

ARTICLE IV

STATES’ RELATIONS

CONTENTS

Page

Section 1. Full Faith and Credit ............................................................................................... 831

Sources and Effect of This Provision ........................................................................................ 831

Private International Law ................................................................................................. 831

Judgments: Effect to Be Given in Forum State ...................................................................... 832

In General ........................................................................................................................... 832

Jurisdiction: A Prerequisite to Enforcement of Judgments ............................................ 837

Judgments in Personam ............................................................................................. 837

Service on Foreign Corporations ................................................................................ 838

Service on Nonresident Motor Vehicle Owners ........................................................ 839

Judgments in Rem ...................................................................................................... 839

Divorce Decrees: Domicile as the Jurisdictional Prerequisite ........................................ 840

Divorce Suit: In Rem or in Personam; Judicial Indecision ...................................... 841

Williams I and Williams II ......................................................................................... 842

Cases Following Williams II ....................................................................................... 844

Claims for Alimony or Property in Forum State ...................................................... 846

Decrees Awarding Alimony, Custody of Children .................................................... 848

Status of the Law ........................................................................................................ 850

Other Types of Decrees ...................................................................................................... 851

Probate Decrees ........................................................................................................... 851

Adoption Decrees ......................................................................................................... 852

Garnishment Decrees .................................................................................................. 852

Penal Judgments: Types Entitled to Recognition ............................................................ 853

Fraud as a Defense to Suits on Foreign Judgments ....................................................... 853

Recognition of Rights Based Upon Constitutions, Statutes, Common Law .......................... 854

Development of the Modern Rule ...................................................................................... 854

Transitory Actions: Death Statutes ........................................................................... 856

Actions Upon Contract ................................................................................................ 857

Stockholder Corporation Relationship ....................................................................... 858

Fraternal Benefit Society: Member Relationship ..................................................... 858

Insurance Company, Building and Loan Association: Contractual Relationship .. 859

Workmen’s Compensation Statutes ........................................................................... 861

Full Faith and Credit and Statutes of Limitation .................................................... 863

Full Faith and Credit: Miscellany ............................................................................................ 863

Full Faith and Credit in Federal Court ............................................................................ 863

Evaluation of Results Under Provision ............................................................................ 864

Scope of Powers of Congress Under Provision ........................................................................ 866

Judgments of Foreign States .................................................................................................... 866

Section 2. Interstate Comity ..................................................................................................... 867

Clause 1. State Citizenship: Privileges and Immunities ................................................. 867

Origin and Purpose ..................................................................................................... 867

How Implemented ....................................................................................................... 870

Citizens of Each State ................................................................................................. 870

Corporations ......................................................................................................... 871
830 ART. IV—STATES’ RELATIONS

Section 2. Interstate Comity—Continued

Clause 1. State Citizenship: Privileges and Immunities—Continued

All Privileges and Immunities of Citizens in the Several States ............................ 871

Discrimination in Private Rights ............................................................................... 874

Access to Courts .......................................................................................................... 875

Taxation ....................................................................................................................... 876

Clause 2. Interstate Rendition .......................................................................................... 877

Duty to Surrender Fugitives from Justice ................................................................ 878

Fugitive from Justice: Defined ............................................................................ 879

Procedure for Removal ......................................................................................... 879

Trial of Fugitives After Removal ........................................................................ 880

Clause 3. Fugitives from Labor ......................................................................................... 881

Section 3. Admission of New States to Union; Property of United States ............................ 881

Clause 1. Admission of New States to Union ................................................................... 881

Doctrine of the Equality of States .............................................................................. 881

Judicial Proceedings Pending on Admission of New States ............................. 885

Property Rights of States to Soil Under Navigable Waters ............................. 886

Clause 2. Property of the United States ........................................................................... 887

Property and Territory: Powers of Congress ............................................................. 888

Methods of Disposing Thereof ............................................................................. 888

Public Lands: Federal and State Powers Thereover ......................................... 888

Territories: Powers of Congress Thereover ........................................................ 890

Section 4. Obligations of United States to States ................................................................... 891

Guarantee of Republican Form of Government ............................................................... 891
831

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

Supreme Court enforced this rule.

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 THIS PROVISION

Private International Law

The historical background of this section is furnished by that

branch of private law which is variously termed ‘‘private international law,’’ ‘‘conflict of laws,’’ ‘‘comity,’’ This 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 which 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 which the judg-
832 ART. IV—STATES’ RELATIONS

Sec. 1—Full Faith and Credit: Judicial Proceedings

2 Congressional legislation under the full faith and credit clause, so far as it is

pertinent to adjudication hereunder, is today embraced in 28 U.S.C. §§ 1738–1739.

See also 28 U.S.C. §§ 1740–1742. 3Mankin v. Chandler, 16 Fed Cas. 625, 626 (No. 9030) (C.C.D. Va. 1823).

ments of the courts of one country shall receive from those of another country.

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 section now under consideration 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
ART. IV—STATES’ RELATIONS 833

Sec. 1—Full Faith and Credit: Judicial Proceedings

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

Insurance Company v. Harris, 97 U.S. 331 (1878). 5 1 Stat. 122.

6On 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 3 Wheat. (16 U.S.) 234 (1818).

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

407, 413–420 (1850); Bank of Alabama v. Dalton, 9 How. (50 U.S.) 522, 528 (1850);

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

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

Great Western Telegraph Co. v. Purdy, 162 U.S. 329 (1896); Wells v. Simonds Abrasive Co., 345 U.S. 514, 516–518 (1953). Recently, 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., 727.

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

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 inasmuch 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 adopted the latter view,

saying 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 And in Hampton v. McConnell, 7 some

years later, Chief Justice Marshall went even further, using language which 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 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,
834 ART. IV—STATES’ RELATIONS

Sec. 1—Full Faith and Credit: Judicial Proceedings

9 Cole v. Cunningham, 133 U.S. 107, 112 (1890). See also Stacy v. Thrasher, 6

How. (47 U.S.) 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, 7 Wall. (74 U.S.)

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). 11Sistare v. Sistare, 218 U.S. 1 (1910). 12Michigan Trust Co. v. Ferry, 228 U.S. 346 (1913). See also Fall v. Eastin, 215

U.S. 1 (1909).

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 necessary, 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, it has been further held that foreign judgments

enjoy, not the right of priority or privilege or lien which they have

in the State where they are pronounced but only that which 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
ART. IV—STATES’ RELATIONS 835

Sec. 1—Full Faith and Credit: Judicial Proceedings

13Milwaukee County v. White Co., 296 U.S. 268, 275–276 (1935). 14 Board of Public Works v. Columbia College, 17 Wall. (84 U.S.) 521 (1873);

Robertson v. Pickrell, 109 U.S. 608, 610 (1883). 15Kersh Lake Dist. v. Johnson, 309 U.S. 485 (1940). See also Texas & Pac. Ry.

Co. 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 3 Wheat. (16 U.S.) 234 (1818). 19 Anglo-Am. Prov. Co. v. Davis Prov. Co., No. 1, 191 U.S. 373 (1903). 20Fauntleroy 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

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

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 which 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, by way of substitution,

any clear-cut 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
836 ART. IV—STATES’ RELATIONS

Sec. 1—Full Faith and Credit: Judicial Proceedings

was ‘‘directed to jurisdiction,’’ the Mississippi statute to ‘‘merits,’’ but four Justices

could not grasp the distinction. 21Kenney 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). 22 Broderick v. Rosner, 294 U.S. 629 (1935), approved in Hughes v. Fetter, 341

U.S. 609 (1951). 23 Union National 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). 25Titus v. Wallick, 306 U.S. 282, 291–292 (1939). 26Morris 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, 3 Wheat. (16 U.S.) 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?

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 affecting 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, which 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,

inasmuch as 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
ART. IV—STATES’ RELATIONS 837

Sec. 1—Full Faith and Credit: Judicial Proceedings

27 Cooper v. Reynolds, 10 Wall. (77 U.S.) 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 Natl. Assur. Co. v. North Carolina Life & Accident & Health Ins. Guar.

Assn., 455 U.S. 691 (1982). 28 Board of Public Works v. Columbia College, 17 Wall. (84 U.S.) 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.

Rogers v. Alabama, 192 U.S. 226, 231 (1904); Wells Fargo & Co. v. Ford, 238 U.S.

503 (1915). 29Grover & Baker Machine Co. v. Radcliffe, 137 U.S. 287 (1890). See also

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

204 U.S. 8 (1907); Brown v. Fletcher’s Estate, 210 U.S. 82 (1908). 30Pennoyer 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).

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

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 stat-
838 ART. IV—STATES’ RELATIONS

Sec. 1—Full Faith and Credit: Judicial Proceedings

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

Ketchum, 1 How. (52 U.S.) 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. Bank v. Farnum, 176 U.S. 640 (1900). 35Stacy v. Thrasher, 6 How. (47 U.S.) 44, 58 (1848). 36 Bigelow v. Old Dominion Copper Co., 225 U.S. 111 (1912). 37 18 How. (59 U.S.) 404 (1856).

ute thereof providing for the service of process on absent defendants, was personally served in another State is entitled to full faith

and 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

Inasmuch as 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; while

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. Here it was 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
ART. IV—STATES’ RELATIONS 839

Sec. 1—Full Faith and Credit: Judicial Proceedings

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

602 (1899). 39Simon v. Southern Railway, 236 U.S. 115 (1915). 40Goldey v. Morning News, 156 U.S. 518 (1895); Riverside Mills v. Menfee, 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). 43Kane 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 18 Wall. (85 U.S.) 457 (1874).

faith and credit 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 While 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
840 ART. IV—STATES’ RELATIONS

Sec. 1—Full Faith and Credit: Judicial Proceedings

45 1 H. BLACK, A TREATISE ON THE LAW OF JUDGMENTS (St Paul: 1891), § 246. 46See 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 which

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 Society v. Dormitzer, 192 U.S. 125, 128 (1904); Grover & Baker Machine Co. v. Radcliffe, 137 U.S. 287, 294 (1890). 47 Cheever v. Wilson, 9 Wall. (76 U.S.) 108 (1870). 48 Andrews v. Andrews, 188 U.S. 14 (1903). See also German Savings Society

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

seized outside the 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
ART. IV—STATES’ RELATIONS 841

Sec. 1—Full Faith and Credit: Judicial Proceedings

49 181 U.S. 155, 162 (1901). 50 201 U.S. 562 (1906). 51 317 U.S. 287 (1942); 325 U.S. 226 (1945).

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 it was held, in the latter 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 which 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. Shortly prior thereto, the Court in Davis v.
842 ART. IV—STATES’ RELATIONS

Sec. 1—Full Faith and Credit: Judicial Proceedings

52 305 U.S. 32 (1938). 53 317 U.S. 287, 298–299 (1942).

Davis 52 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 while in the Williams cases it was not.

Williams I and Williams II.—In the Williams I and Williams

II cases, 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 as-
ART. IV—STATES’ RELATIONS 843

Sec. 1—Full Faith and Credit: Judicial Proceedings

54 Id., 302. 55 Id., 311. 56 325 U.S. 226, 229 (1945). 57 Bell v. Bell, 181 U.S. 175 (1901); Andrews v. Andrews, 188 U.S. 14 (1903). 58Strong 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.’ . . .

sumptions, which it justified 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 extra-territorial 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 a majority of the Court held that a decree of divorce rendered in one State

may be collaterally impeached in another by proof that the court

which 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
844 ART. IV—STATES’ RELATIONS

Sec. 1—Full Faith and Credit: Judicial Proceedings

‘‘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’ . . . afford 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 have 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], . . . only examination for sufficiency.’’ 325 U.S., 248, 251, 255, 258–259.

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

Black in whose dissenting opinion Justice Douglas concurred.

‘‘The full faith and credit clause, as now interpreted, has become a disrupting

influence. The Court in effect states that the clause does not apply to divorce actions, and that States alone have the right to determine what effect shall be given

to the decrees of other States. If the Court is abandoning the principle that a marriage [valid where made is valid everywhere], a consequence is to subject people to

bigamy or adultery prosecutions because they exercise their constitutional right to

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

to recognize their marriage. Such a consequence violates basic guarantees.’’ Id., 262. 59 334 U.S. 343 (1948).

Cases Following Williams II.—Fears registered by the dissenters in the second Williams case that the stability of all divorces

might be undermined thereby and that thereafter 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 the holding in Sherrer v. Sherrer, 59 wherein Massachusetts,

a State of domiciliary origin, was required to accord full faith and

credit to a 90-day Florida decree which had been contested by the

husband. The latter, 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. Inasmuch as 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 Massachusetts, 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
ART. IV—STATES’ RELATIONS 845

Sec. 1—Full Faith and Credit: Judicial Proceedings

60 334 U.S. 378 (1948). In a dissenting opinion filed in the case of Sherrer v.

Sherrer, but applicable also to the case of 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 had been gone through.’’ 334 U.S., 343, 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,’ but for the first Williams case and its progeny, the

judgment of the Connecticut court 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. 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., 676, 679, 680.

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 decreed therein, is the case of

Rice v. Rice. 61 To 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
846 ART. IV—STATES’ RELATIONS

Sec. 1—Full Faith and Credit: Judicial Proceedings

62 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) The Sherrer and Coe cases 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 inasmuch as 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).

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.

The cases of Sherrer v. Sherrer, and Coe v. Coe, previously discussed, were declared not to be in point, inasmuch as no personal

service was made upon the first wife, nor did she in any way participate 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 Justices Black and Rutledge, 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 defeat 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 concern in the welfare
ART. IV—STATES’ RELATIONS 847

Sec. 1—Full Faith and Credit: Judicial Proceedings

64 Id., 281–283. 65 334 U.S. 541 (1948). See also the companion case of Kreiger v. Kreiger, 334

U.S. 555 (1948). 66 Esenwein v. Commonwealth, 325 U.S. 279, 280 (1945). 67 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, 549–554 (1948). These two Justices filed similar dissents in the companion case of Kreiger v. Kreiger, 334 U.S.

555, 557 (1948). 68 381 U.S. 81 (1965).

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

succinctly stated by Justice Rutledge, ‘‘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 as spokesman for a majority of the Court, Justice Douglas reiterated these views in the

case of Estin v. Estin. 65 Even though it acknowledged the validity

of an ex parte Nevada decree obtained by a husband, New York

was held not to have denied full faith and credit to the decree

when, subsequently thereto, it granted the wife a judgment for arrears in alimony founded upon a decree of separation previously

awarded to her when both she and her husband after he had resided there a year and upon constructive notice to the wife in New

York who entered no appearance, was held to be effective only to

change the marital status of both parties in all States of the Union

but ineffective on the issue of alimony. Divorce, in other words, was

viewed as being divisible; Nevada, in the absence of acquiring jurisdiction over the wife, was held incapable of adjudicating the rights

of the wife in the prior New York judgment awarding her alimony.

Accordingly, the Nevada decree could not prevent New York from

applying its own rule of law which, unlike that of Pennsylvania, 66

does permit a support order to survive a divorce decree. 67

Such a result was justified as accommodating the interests of

both New York and Nevada in the broken marriage by restricting

each State to matters of her dominant concern, the concern of New

York being that of protecting the abandoned wife against impoverishment. In Simons v. Miami National Bank, 68 the Court held that
848 ART. IV—STATES’ RELATIONS

Sec. 1—Full Faith and Credit: Judicial Proceedings

69 Id., 84–85. 70 334 U.S. 541 (1948). 71 381 U.S., 84–85. 72 Id., 85. 73 Barber v. Barber, 323 U.S. 77, 84 (1944). 74Sistare v. Sistare, 218 U.S. 1, 11 (1910). See also Barber v. Barber, 21 How.

(62 U.S.) 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).

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. 69 The Court found the principle

of Estin v. Estin 70 was not applicable. 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. 71 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. 72

Decrees Awarding Alimony, Custody of Children.—Resulting as a by-product 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 which 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. 73

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 made prior to the maturity of the installments. 74 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 oppor-
ART. IV—STATES’ RELATIONS 849

Sec. 1—Full Faith and Credit: Judicial Proceedings

75Griffin v. Griffin, 327 U.S. 220 (1946). 76 Id., 228. An alimony case of a quite extraordinary pattern was that of Sutton

v. Leib. 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 which 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, inasmuch

as 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. Sutton v. Leib, 342

U.S. 402 (1952). 77 Halvey v. Halvey, 330 U.S. 610, 615 (1947). 78May v. Anderson, 345 U.S. 528 (1953). Justices Jackson, Reed, and Minton

dissented. 79 356 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.’’

tunity to contest it. 75 ‘‘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.’’ 76

An example of a custody case was one involving a Florida divorce decree which 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, 77 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 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 instituted by him. 78 In Kovacs v. Brewer, 79 however, the

Court indicated that a finding of changed circumstances rendering

observance of an absentee foreign custody decree inimical to the
850 ART. IV—STATES’ RELATIONS

Sec. 1—Full Faith and Credit: Judicial Proceedings

80Ford v. Ford, 371 U.S. 187, 192–194 (1962). As part of a law dealing with

parental kidnapping, Congress, in P.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. 81 334 U.S. 541 (1948). 82 350 U.S. 568 (1956). 83Four 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. Id., 575

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. 80

Status of the Law.—Upon summation, one may speculate as

to whether the doctrine of divisible divorce, as developed by Justice

Douglas in Estin v. Estin, 81 has not become the prevailing standard for determining the enforceability of foreign divorce decrees. If

such be the case, it may be tenable to assert that an ex parte divorce, founded upon acquisition of domicile by one spouse in the

State which granted it, is as effective to destroy the marital status

of both parties in the State of domiciliary origin and probably in

all other States and therefore 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 rendered by the Court since 1948. Thus,

in Armstrong v. Armstrong, 82 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 of the parties before

it, it disposed of the wife’s suit for divorce and alimony with a decree limited solely to an award of alimony. 83 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,
ART. IV—STATES’ RELATIONS 851

Sec. 1—Full Faith and Credit: Judicial Proceedings

84 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 inasmuch as the wife did

not become a domiciliary of New York until after the Nevada decree, she had no

pre-divorce rights in new York which the latter was obligated to protect. 85Tilt v. Kelsey, 207 U.S. 43 (1907); Burbank v. Ernst, 232 U.S. 162 (1914). 86 Riley v. New York Trust Co., 315 U.S. 343 (1942). 87 Brown v. Fletcher’s Estate, 210 U.S. 82, 90 (1908). See also Stacy v. Thrasher, 6 How. (47 U.S.) 44, 58 (1848); McLean v. Meek, 18 How. (59 U.S.) 16, 18 (1856). 88Tilt 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 disit was competent to sequester the husband’s property in New York

to satisfy his obligations to the wife. 84

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. 85 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. 86

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. 87 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 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. 88
852 ART. IV—STATES’ RELATIONS

Sec. 1—Full Faith and Credit: Judicial Proceedings

charged 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. 89 Blodgett v. Silberman, 277 U.S. 1 (1928). 90Kerr v. Moon, 9 Wheat. (22 U.S.) 565 (1824); McCormick v. Sullivant, 10

Wheat. (23 U.S.) 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). 91 Robertson v. Pickrell, 109 U.S. 608, 611 (1883). See also Darby v. Mayer, 10

Wheat. (23 U.S.) 465 (1825); Gasquet v. Fenner, 247 U.S. 16 (1918). 92Olmstead v. Olmstead, 216 U.S. 386 (1910). 93 Hood v. McGehee, 237 U.S. 611 (1915).

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. 89 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. 90 So, the probate of a will in one State,

while conclusive therein, does not displace legal provisions necessary to its validity as a will of real property in other States. 91

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, however,

there are exceptions, that statutes do not have extraterritorial operation. 92 For the same reason, adoption proceedings in one State

are not denied full faith and credit by the law of the sister State

which excludes children adopted by proceedings in other States

from the right to inherit land therein. 93

Garnishment Decrees.—A proceeding which combines some

of the elements of both an in rem and an in personam action is the

proceeding in garnishment cases. Suppose that A owes B and B

owes C, and that the two former live in a different State than 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 de-
ART. IV—STATES’ RELATIONS 853

Sec. 1—Full Faith and Credit: Judicial Proceedings

94 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). 95The Antelope, 10 Wheat. (23 U.S.) 66, 123 (1825). See also Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888). 96 146 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). 97 399 U.S. 224 (1970). 98 Id., 229.

fense. It was argued in 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. 94

Penal Judgments: Types Entitled to Recognition

Finally, the clause has been interpreted in the light of the ‘‘incontrovertible maxim’’ that ‘‘the courts of no country execute the

penal laws of another.’’ 95 In the leading case of Huntington v.

Attrill, 96 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, 97

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. 98 Until the obligation

to extradite matured, the full faith and credit clause did not 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
854 ART. IV—STATES’ RELATIONS

Sec. 1—Full Faith and Credit: Judicial Proceedings

99 Christmas v. Russell, 5 Wall. (72 U.S.) 290 (1866); Maxwell v. Stewart, 21

Wall. (88 U.S.) 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). 100Fauntleroy v. Lum, 210 U.S. 230 (1908). 101 Anglo-American Prov. Co. v. Davis Prov. Co. No. 1, 191 U.S. 373 (1903). 102 133 U.S. 107 (1890). 103 Bank of Augusta v. Earle, 13 Pet. (38 U.S.) 519, 589–596 (1839). See Kryger

v. Wilson, 242 U.S. 171 (1916); Bond v. Hume, 243 U.S. 15 (1917).

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, 99 or as contrary to the public policy of the State where recognition is sought for it under the full faith and credit clauses. 100

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. 101 Thus in one case, Cole v.

Cunningham, 102 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 which 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

With regard to the extrastate protection of rights which have

not matured into final judgments, the full faith and credit clause

has never abolished the general principle of the dominance of local

policy over the rules of comity. 103 This was stated by Justice Nelson in the Dred Scott case, as follows: ‘‘No State . . . can enact laws

to operate beyond its own dominions . . . Nations, from convenience and comity . . . recognizes [sic] and administer the laws of

other countries. But, of the nature, extent, and utility, of them, respecting property, or the state and condition of persons within her

territories, each nation judges for itself.’’ He added that it was the

same with the States of the Union in relation to another. It followed that even though Dred Scott had become a free man in con-
ART. IV—STATES’ RELATIONS 855

Sec. 1—Full Faith and Credit: Judicial Proceedings

104Scott v. Sandford, 19 How. (60 U.S.) 393, 460 (1857); Bonaparte v. Tax

Court, 104 U.S. 592 (1882), where it was held that a law exempting from taxation

certain bonds of the enacting State did not operate extraterritorially by virtue of the

full faith and credit clause. 105 Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887). 106Smithsonian Institution v. St. John, 214 U.S. 19 (1909). 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 Insurance Co.,

178 U.S. 402 (1900); Allen v. Alleghany Co., 196 U.S. 458, 465 (1905); Texas &

N.O.RR Co. v. Miller, 221 U.S. 408 (1911). See also National Mutual B. & L. Assn.

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). 107 Alaska Packers Assn. v. Comm. 294 U.S. 532 (1935); Bradford Elec. Co. v.

Clapper, 286 U.S. 145 (1932). 108 E.g., Allstate Insurance 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.

sequence of his having resided in the ‘‘free’’ State of Illinois, he had

nevertheless upon his return to Missouri, which had the same

power as Illinois to determine its local policy respecting rights acquired extraterritorially, reverted to servitude under the laws and

judicial decisions of that State. 104

In a case decided in 1887, however, the Court remarked:

‘‘Without doubt the constitutional requirement, Art. IV, § 1, that

‘full faith and credit shall be given in each State to the public acts,

records, and judicial proceedings of every other State,’ implies that

the public acts of every State shall be given the same effect by the

courts of another State that they have by law and usage at

home.’’ 105 And this proposition was later held to extend to state

constitutional provisions. 106 More recently this doctrine has been

stated in a very mitigated form, the Court saying that where 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 its own statutes to those

of others but by appraising the governmental interest of each jurisdiction and deciding accordingly. 107 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. 108 The
856 ART. IV—STATES’ RELATIONS

Sec. 1—Full Faith and Credit: Judicial Proceedings

Co. v. Industrial Accident Comm., 306 U.S. 493 (1939); Alaska Packers Assn. v. Industrial Accident Comm., 294 U.S. 532 (1935). 109Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 818 (1985) (quoting Allstate

Insurance Co. v. Hague, 449 U.S. 302, 312–313 (1981) (plurality opinion)). 110Dennick 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 & Ohio R. Co.,

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. Bank v. United Airlines, 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.

clause (and the comparable due process clause standards) obligate

the forum State to take jurisdiction and to apply foreign law, subject to the forum’s own interest in furthering its public policy. In

order ‘‘for a State’s substantive law to be selected in a constitutionally permissible manner, that State must have a significant

contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.’’ 109 Obviously this doctrine endows the Court with

something akin to an arbitral function in the decision of cases to

which it is applied.

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 seventies, however, the States, abandoning the common law rule on the

subject, began passing laws which authorized the representatives

of a decedent whose death had resulted from injury to bring an action for damages. 110 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.
ART. IV—STATES’ RELATIONS 857

Sec. 1—Full Faith and Credit: Judicial Proceedings

111 119 U.S. 615 (1887). 112 Northern Pacific Railroad v. Babcock, 154 U.S. 190 (1894); Atchison, T. &

S.F. Ry. v. Sowers, 213 U.S. 55,67 (1909). 113 449 U.S. 302 (1981). See also Clay v. Sun Insurance Office, Ltd., 377 U.S.

179 (1964). 114 John Hancock Mutual Life Ins. Co. v. Yates, 299 U.S. 178 (1936).

Actions Upon Contract.—In Chicago & Alton R.R. v. Wiggins

Ferry Co., 111 the Court indicated that it was the law under which

the contract was made, not the law of the forum State, which

should govern. Its utterance on the point was, however, not merely

obiter, it 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.’’ Notwithstanding 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. 112

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 Insurance Co. v. Hague, 113 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. 114
858 ART. IV—STATES’ RELATIONS

Sec. 1—Full Faith and Credit: Judicial Proceedings

115Modern Woodmen v. Mixer, 267 U.S. 544 (1925). 116 Converse v. Hamilton, 224 U.S. 243 (1912); Selig v. Hamilton, 234 U.S. 652

(1914); Marin v. Augedahl, 247 U.S. 142 (1918). 117 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). 118 Hancock National Bank v. Farnum, 176 U.S. 640 (1900). 119 237 U.S.. 531 (1915), followed in Modern Woodmen v. Mixer, 267 U.S. 544

(1925).

Stockholder Corporation Relationship.—Nor is it alone to

defendants in transitory actions that the full faith and credit clause

is today a shield and a buckler. 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. 115

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 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. 116 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. 117 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. 118

Fraternal Benefit Society: Member Relationship.—The

same principle applies to the relationship which is formed when

one takes out a policy in a ‘‘fraternal benefit society.’’ Thus in

Royal Arcanum v. Green, 119 in which a fraternal insurance association chartered under the laws of Massachusetts was being 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
ART. IV—STATES’ RELATIONS 859

Sec. 1—Full Faith and Credit: Judicial Proceedings

120 305 U.S. 66, 75, 79 (1938). 121 331 U.S. 586, 588–589, 637 (1947). 122 New York Life Ins. Co. v. Head, 234 U.S. 149 (1914); Aetna Life Ins. Co. v.

Dunken, 266 U.S. 389 (1924).

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, 120 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 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 therewith, the Court also held, in Order of Travelers v.

Wolfe, 121 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, 122 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. Assn. v.
860 ART. IV—STATES’ RELATIONS

Sec. 1—Full Faith and Credit: Judicial Proceedings

123 193 U.S. 635 (1904). 124 Ibid. 125 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). 126Griffin v. McCoach, 313 U.S. 498 (1941).

Brahan, 123 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.

Thus, 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 was held to control. 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. 124 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. 125 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. 126 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 pol-
ART. IV—STATES’ RELATIONS 861

Sec. 1—Full Faith and Credit: Judicial Proceedings

127Watson v. Employers Liability Corp., 348 U.S. 66 (1954). In Clay v. Sun Insurance 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. 128 314 U.S. 201, 206–208 (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). 129 324 U.S. 154, 159–160 (1945).

icy stipulation which forbids direct actions until after the determination of the liability of the insured tortfeasor. 127

Consistent with the latter holding are the following two involving mutual insurance companies. In Pink v. A.A.A. Highway Express, 128 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, 129 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.

Workmen’s Compensation Statutes.—Finally, the relationship of employer and employee, insofar as the obligations of the one

and the rights of the other under workmen’s compensation acts are

concerned, has been the subject of differing and confusing treat-
862 ART. IV—STATES’ RELATIONS

Sec. 1—Full Faith and Credit: Judicial Proceedings

130 Bradford Elec. Co. v. Clapper, 286 U.S. 145 (1932). 131 Alaska Packers Assn. v. Comm., 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., 547 (stating the balancing test). 132Pacific Ins. Co. v. Comm., 306 U.S. 493 (1939). 133 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, 421–424 (1979). 134Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943).

ment. 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 over the place of injury. 130 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. 131 Thus, the Court held that the clause did not

preclude California from disregarding a Massachusett’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. 132 It is therefore settled that an injured workman

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. 133

Less settled is the question whether a second State, with interests in the matter, may supplement a workmen’s 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. 134 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 em-
ART. IV—STATES’ RELATIONS 863

Sec. 1—Full Faith and Credit: Judicial Proceedings

135 Industrial Comm. v. McCartin, 330 U.S. 622 (1947). 136 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. Id., 624. 137 Id., 627–628, 630. 138Thomas v. Washington Gas Light Co., 448 U.S. 261 (1980). For the disapproval of McCartin, see id., 269–272 (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., 277–286, 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., 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., 286. 139Watkins v. Conway, 385 U.S. 188, 190–191 (1965).

ployment contract had been entered into. 135 Although the second

case could have been factually distinguished from the first, 136 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 language’’ to the effect that those laws were exclusive of any remedy under the laws of any other State would supplementary awards be precluded. 137 While the overwhelming number

of state court decisions since follow McCartin and Magnolia has

been little noticed, all the Justices have recently 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. 138

Full Faith and Credit and Statutes of Limitation.—The

full faith and credit clause is not violated by a state statute providing that all suits upon foreign judgments shall be brought within

five years after such judgment shall have been obtained, where the

statute has been construed by the state courts as barring suits on

foreign judgments, only if the plaintiff could not revive his judgment in the state where it was originally obtained. 139

FULL FAITH AND CREDIT: MISCELLANY

Full Faith and Credit in Federal Courts

By the terms of 28 U.S.C. §§ 1738–1739, the rule comprised

therein pertains not merely to recognition by state courts of the

records and judicial proceedings of courts of sister States but to

recognition by ‘‘every court within the United States,’’ including

recognition of the records and proceedings of the courts of any territory or any country subject to the jurisdiction of the United

States. The federal courts are bound to give to the judgments of the

state courts the same faith and credit that the courts of one State

are bound to give to the judgments of the courts of her sister
864 ART. IV—STATES’ RELATIONS

Sec. 1—Full Faith and Credit: Judicial Proceedings

140 Cooper v. Newell, 173 U.S. 555, 567 (1899), See also Pennington v. Gibson,

16 How. (57 U.S.) 65, 81 (1854); Cheever v. Wilson, 9 Wall. (76 U.S.) 108, 123

(1870); Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291 (1888); Swift v. McPherson,

232 U.S. 51 (1914); Baldwin v. Traveling Men’s Assn., 283 U.S. 522 (1931); American Surety Co. v. Baldwin, 287 U.S. 156 (1932); Sanders v. Fertilizer Works, 292

U.S. 190 (1934); Durfee v. Duke, 375 U.S. 106 (1963); Allen v. McCurry, 449 U.S.

90 (1980); Kremer v. Chemical Const. Corp., 456 U.S. 461 (1982). 141Milwaukee County v. White Co., 296 U.S. 268 (1935). 142 Equitable Life Assurance Society v. Brown, 187 U.S. 308 (1902). See also

Gibson v. Lyon, 115 U.S. 439 (1885). 143 Embry v. Palmer, 107 U.S. 3, 9 (1883). See also Northern Assurance Co. v.

Grand View Assn., 203 U.S. 106 (1906); Louisville & N.R.R. Co. v. Stock Yards Co.,

212 U.S. 132 (1909); Atchison, T. & S.F. Ry. v. Sowers, 213 U.S. 55 (1909); West

Side R.R. Co. v. Pittsburgh Const. Co., 219 U.S. 92 (1911); Knights of Pythias v.

Meyer, 265 U.S. 30, 33 (1924).

States. 140 Where suits to enforce the laws of one State are entertained in courts of another on principles of comity, federal district

courts sitting in that State may entertain them and should, if they

do not infringe federal law or policy. 141 However, the refusal of a

territorial court in Hawaii, having jurisdiction of the action which

was on a policy issued by a New York insurance company, to admit

evidence that an administrator had been appointed and a suit

brought by him on a bond in the federal court in New York wherein no judgment had been entered, did not violate this clause. 142

The power to prescribe what effect shall be given to the judicial

proceedings of the courts of the United States is conferred by other

provisions of the Constitution, such as those which declare the extent of the judicial power of the United States, which authorize all

legislation necessary and proper for executing the powers vested by

the Constitution in the Government of the United States, and

which declare the supremacy of the authority of the National Government within the limits of the Constitution. As part of its general authority, the power to give effect to the judgment of its courts

is coextensive with its territorial jurisdiction. 143

Evaluation Of Results Under Provision

Thus the Court, from according an extrastate operation to statutes and judicial decisions in favor of defendants in transitory actions, proceeded next to confer the same protection upon certain

classes of defendants in local actions in which the plaintiff’s claim

was the outgrowth of a relationship formed *extraterritorially. But

can the Court stop at this point? If it is true, as Chief Justice Marshall once remarked, that ‘‘the Constitution was not made for the

benefit of plaintiffs’ alone,’’ so also it is true that it was not made

for the benefit of defendants alone. The day may come when the

Court will approach the question of the relation of the full faith

and credit clause to the extrastate operation of laws from the same
ART. IV—STATES’ RELATIONS 865

Sec. 1—Full Faith and Credit: Judicial Proceedings

144 Reviewing some of the cases treated in this section, a writer in 1926 said:

‘‘It appears, then, that the Supreme Court has quite definitely committed itself to

a program of making itself, to some extent, a tribunal for bringing about uniformity

in the field of conflicts...although the precise circumstances under which it will regard itself as having jurisdiction for this purpose are far from clear.’’ Dodd, The

Power of the Supreme Court to Review State Decisions in the Field of Conflict of

Laws, 39 Harv. L. Rev. 533, 562 (1926). It can hardly be said that the law has been

subsequently clarified on this point.

angle as it today views the broader question of the scope of state

legislative power. When and if this day arrives, state statutes and

judicial decisions will be given such extraterritorial operation as

seems reasonable to the Court to give them. In short, the rule of

the dominance of legal policy of the forum State will be superseded

by that of judicial review. 144

The question arises whether the application to date, not by the

Court alone but by Congress and the Court, of Article IV, § 1, can

be said to have met the expectations of its Framers. In the light

of some things said at the time of the framing of the clause this

may be doubted. The protest was raised against the clause that, in

vesting Congress with power to declare the effect state laws should

have outside the enacting State, it enabled the new government to

usurp the powers of the States, but the objection went unheeded.

The main concern of the Convention, undoubtedly, was to render

the judgments of the state courts in civil cases effective throughout

the Union. Yet even this object has been by no means completely

realized, owing to the doctrine of the Court, that before a judgment

of a state court can be enforced in a sister State, a new suit must

be brought on it in the courts of the latter, and the further doctrine

that with respect to such a suit, the judgment sued on is only evidence; the logical deduction from this proposition is that the sister

State is under no constitutional compulsion to give it a forum.

These doctrines were first clearly stated in the McElmoyle case and

flowed directly from the new states’ rights premises of the Court,

but they are no longer in harmony with the prevailing spirit of constitutional construction nor with the needs of the times. Also, the

clause seems always to have been interpreted on the basis of the

assumption that the term, ‘‘judicial proceedings,’’ refers only to

final judgments and does not include intermediate processes and

writs, but the assumption would seem to be groundless, and if it

is, then Congress has the power under the clause to provide for the

service and execution throughout the United States of the judicial

processes of the several States.
866 ART. IV—STATES’ RELATIONS

Sec. 1—Full Faith and Credit: Judicial Proceedings

145 Cook, The Power of Congress Under the Full Faith and Credit Clause, 28

Yale L.J. 421, 430 (1919). 146 No right, privilege, or immunity is conferred by the Constitution in respect

to judgments of foreign states and nations. Aetna Life Insurance Co. v. Tremblay,

223 U.S. 185 (1912). See also Hilton v. Guyot, 159 U.S. 113, 234 (1895), where a

French judgment offered in defense was held not a bar to the suit. Four Justices

dissented on the ground that ‘‘the application of the doctrine of res judicata does

not rest in discretion; and it is for the Government, and not for its courts, to adopt

the principle of retorsion, if deemed under any circumstances desirable or necessary.’’ At the same sitting of the Court, an action in a United States circuit court

on a Canadian judgment was sustained on the same ground of reciprocity, Ritchie

v. McMullen, 159 U.S. 235 (1895). See also Ingenohl v. Olsen & Co., 273 U.S. 541

(1927), where a decision of the Supreme Court of the Philippine Islands was reversed for refusal to enforce a judgment of the Supreme Court of the British colony

of Hong Kong, which was rendered ‘‘after a fair trial by a court having jurisdiction

of the parties.’’ Another instance of international cooperation in the judicial field is

furnished by letters rogatory. See 28 U.S.C. § 1781. Several States have similar provisions, 2 J. MOORE, DIGEST OF INTERNATIONAL LAW (Washington: 1906), 108–109.

SCOPE OF POWERS OF CONGRESS UNDER PROVISION

Under the present system, suit ordinarily has to be brought

where the defendant, the alleged wrongdoer, resides, which means

generally where no part of the transaction giving rise to the action

took place. What could be more irrational? ‘‘Granted that no state

can of its own volition make its process run beyond its borders . . .

is it unreasonable that the United States should by federal action

be made a unit in the manner suggested?’’ 145

Indeed, there are few clauses of the Constitution, the merely

literal possibilities of which have been so little developed as the full

faith and credit clause. Congress has the power under the clause

to decree the effect that the statutes of one State shall have in

other States. This being so, it does not seem extravagant to argue

that Congress may under the clause describe a certain type of divorce and say that it shall be granted recognition throughout the

Union and that no other kind shall. Or to speak in more general

terms, Congress has under the clause power to enact standards

whereby uniformity of state legislation may be secured as to almost

any matter in connection with which interstate recognition of private rights would be useful and valuable.

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. 146
ART. IV—STATES’ RELATIONS 867

Sec. 2—Interstate Comity Cl. 1—Privileges and Immunities

147Toomer v. Witsell, 334 U.S. 385, 395 (1948). 148THE FEDERALIST, No. 42 (J. Cooke ed. 1961), 285–286 (Madison). 149 1 F. THORPE (ed.), THE FEDERAL AND STATE CONSTITUTIONS, H. Doc. No. 357,

59th Cong., 2 sess. (Washington: 1909), 10. 150 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (New

Haven: rev. ed. 1937), 173, 187, 443. 151 ‘‘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).152Slaughter-House Cases, 16 Wall. (83 U.S.) 36, 75 (1873).

SECTION 2. 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.’’ 147 Precedent for this clause was

a much wordier and a somewhat unclear 148 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,. . .’’ 149 In the

Convention, the present clause was presented, reported by the

Committee on Detail, and adopted all in the language ultimately

approved. 150 Little commentary was addressed to it, 151 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.’’ 152
868 ART. IV—STATES’ RELATIONS

Sec. 2—Interstate Comity Cl. 1—Privileges and Immunities

153Scott v. Sandford, 19 How. (60 U.S.) 393 (1857). 154 Id., 518, 527–529. 155Today, 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,

641–642 (1969). 156 Campbell v. Morris, 3 Harr. & McHen, 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). 157 6 Fed. Cas. 546, 550 (No. 3230) (C.C.E.D. Pa. 1823). (Justice Washington on

circuit), quoted infra, text at nn. 178–182. ‘‘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, 16 Wall. (83 U.S.) 97, 117–118 (1873) (dissenting opinions);

Butchers Union Co. v. Crescent City Co., 111 U.S. 746, 760 (1884) (Justice Field

concurring), but see infra, n. 160, and was possibly understood so by Chief Justice

Taney. Scott v. Sandford, 19 How. (60 U.S.) 393, 423 (1857). And see id., 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 (Madison: 1968), 295. 158McKane v. Durston, 153 U.S. 684, 687 (1894); and see cases cited infra,

n. 160.

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, 153 particularly in the opinion of Justice Catron, 154

this theory is today obsolete. 155 Second, the 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 156 and best accords with the natural law-natural

rights language of Justice Washington in Corfield v. Coryell. 157

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. 158

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
ART. IV—STATES’ RELATIONS 869

Sec. 2—Interstate Comity Cl. 1—Privileges and Immunities

159 City of Detroit v. Osborne, 135 U.S. 492 (1890). 160Paul v. Virginia, 8 Wall. (75 U.S.) 168, 180 (1869) (Justice Field for the

Court; see supra, n. 157); and see Slaughter House Cases, 16 Wall. (83 U.S.) 36,

77 (1873); Chambers v. Baltimore & O.R.R., 207 U.S. 142 (1907); Whitfield v. Ohio,

297 U.S. 431 (1936). 161 Baldwin v. Montana Fish & Game Comm., 436 U.S. 371, 383 (1978). See also

Austin v. New Hampshire, 420 U.S. 656, 660–665 (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., 662); Hicklin v.

Orbeck, 437 U.S. 518, 523–524 (1978). 162Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 281–282 (1985).

See also Doe v. Bolton, 410 U.S. 179, 200 (1973) (discrimination against out-of-state

residents seeking medical care violates clause). 163 Blake v. McClung, 172 U.S. 239, 246 (1898); Travis v. Yale & Towne Mfg.

Co., 252 U.S. 60 (1920). 164 Bradwell v. Illinois, 16 Wall. (83 U.S.) 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).

citizenship throughout the Union, unembarrassed by state lines.

This theory, too, the Court rejected. 159 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 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.’’ 160

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.’’ 161 While the clause ‘‘was intended to create a national economic union,’’ it as well protects

noneconomic interests relating to the Union. 162

Hostile discrimination against all nonresidents infringes the

clause, 163 but controversies between a State and its own citizens

are not covered by the provision. 164 However, a state discrimination in favor of residents of one of its municipalities implicates the
870 ART. IV—STATES’ RELATIONS

Sec. 2—Interstate Comity Cl. 1—Privileges and Immunities

165 United Building & Construction Trades Council v. Mayor of Camden, 465

U.S. 208 (1984). 166 Id., 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. 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 commerce clause). 167 United States v. Harris, 106 U.S. 629, 643 (1883). See also Baldwin v.

Franks, 120 U.S. 678 (1887). 168 United States v. Wheeler, 254 U.S. 281 (1920). 169Scott v. Sandford, 19 How. (60 U.S.) 393 (1857). 170 Id., 403–411. 171 Id., 572–590.

clause, even though the disfavored class consists of in-state as well

as out-of-state inhabitants. 165 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. 166

How Implemented

This 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, 167

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, 168 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, 169 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. 170

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 while Congress alone could determine what classes of

aliens should be naturalized, the several 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. 171 So far as persons
ART. IV—STATES’ RELATIONS 871

Sec. 2—Interstate Comity Cl. 1—Privileges and Immunities

172 13 Pet. (38 U.S.) 519 (1839). 173 Id., 586. 174 8 Wall. (75 U.S.) 168 (1869). 175 Id., 181. 176 Crutcher v. Kentucky, 141 U.S. 47 (1891). 177 Hemphill v. Orloff, 277 U.S. 537 (1928). 178 6 Fed. Cas. 546 (No. 3,230) (C.C.E.D. Pa., 1823).

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 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, 172 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.’’ 173 A similar result was reached in Paul

v. Virginia, 174 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’’ 175 which created it;

even recognition of its existence by other States rested exclusively

in their discretion. More recent cases have held that this discretion

is qualified by other provisions of the Constitution notably the commerce clause and the Fourteenth Amendment. 176 By reason of its

similarity to the corporate form of organization, a Massachusetts

trust has been denied the protection of this clause. 177

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, 178 which was

decided by him on circuit in 1823. The question at issue was the

validity of a New Jersey statute which prohibited ‘‘any person who

is not, at the time, an actual inhabitant and resident in this State’’
872 ART. IV—STATES’ RELATIONS

Sec. 2—Interstate Comity Cl. 1—Privileges and Immunities

179 Id., 551–552. 180 Id., 552. 181 Ibid. 182 Ibid. 183 94 U.S. 391 (1877).

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

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, . . .’’ 179 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; . . . .’’ 180

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.’’ 181 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.’’ 182 The precise holding

of this case was confirmed in McCready v. Virginia; 183 the logic of
ART. IV—STATES’ RELATIONS 873

Sec. 2—Interstate Comity Cl. 1—Privileges and Immunities

184 161 U.S. 519 (1896). 185 209 U.S. 349 (1908). 186 334 U.S. 385 (1948). 187 Id., 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 . 188The cases arose in the commerce clause context. See Douglas v. Seacoast

Products, 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 County

Water Co. v. McCarter, 209 U.S. 349 (1908), was overruled in Sporhase v. Nebraska,

ex rel. Douglas, 458 U.S. 941 (1982). 189 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). 190 Baldwin v. Montana Fish & Game Comm., 436 U.S. 371 (1978). The

quotation is id., 387.

Geer v. Connecticut 184 extended the same rule to wild game, and

Hudson Water Co. v. McCarter 185 applied it to the running water

of a State. In Toomer v. Witsell, 186 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 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. 187

The virtual demise, however, of the state ownership theory of

animals and natural resources 188 compelled the Court to review

and revise its mode of analysis of state restrictions that distinguished between residents and nonresidents 189 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. 190 Subse-
874 ART. IV—STATES’ RELATIONS

Sec. 2—Interstate Comity Cl. 1—Privileges and Immunities

191Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985). 192 United Building & Construction Trades Council v. Mayor of Camden, 465

U.S. 208 (1984). 193 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., 526–528, rather than giving the statute the ordinary presumption

of constitutionality. See Mullaney v. Anderson, 342 U.S. 415, 418 (1952). 194 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). 195 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., 436 U.S. 371, 383 (1978) (citing

Kanapaux v. Ellisor, 419 U.S. 891 (1974); Chimento v. Stark, 353 F. Supp. 1211

(D.C.D. N.H.), aff’d. 414 U.S. 802 (1973)).

quent cases have recognized that the right to practice law 191 and

the right to seek employment on public contracts 192 are to be considered fundamental activity.

Second, finding a fundamental interest protected under the

clause, in the particular case the right to pursue an occupation or

common calling, the Court employed 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. 193 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. 194

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.’’ 195

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 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
ART. IV—STATES’ RELATIONS 875

Sec. 2—Interstate Comity Cl. 1—Privileges and Immunities

196LaTourette v. McMaster, 248 U.S. 465 (1919). 197Doherty & Co. v. Goodman, 294 U.S. 623 (1935). 198 Hess v. Pawloski, 274 U.S. 352, 356 (1927). 199Ferry v. Spokane P. & S. Ry. Co., 258 U.S. 314 (1922), followed in Ferry v.

Corbett, 258 U.S. 609 (1922). 200 Conner v. Elliott, 18 How. (59 U.S.) 591, 593 (1856). 201 Blake v. McClung, 172 U.S. 239, 248 (1898). 202Williams v. Bruffy, 96 U.S. 176, 184 (1878). 203 Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 148 (1907); McKnett v.

St. Louis & S.F. Ry. Co., 292 U.S. 230, 233 (1934). 204 Canadian Northern Ry. Co. v. Eggen, 252 U.S. 553 (1920). 205 Id., 563.

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. 196 It may require a nonresident who does business within the

State 197 or who uses the highways of the State 198 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, 199 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. 200 But a State may not give a preference to resident creditors in the administration of the property of an insolvent

foreign corporation. 201 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. 202

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. 203 The constitutional requirement is satisfied if the nonresident is given access to the courts of

the State upon terms which, 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. 204 The Supreme Court upheld a state statute of limitations which prevented a nonresident from suing in the State’s

courts after expiration of the time for suit in the place where the

cause of action arose 205 and another such statute which suspended
876 ART. IV—STATES’ RELATIONS

Sec. 2—Interstate Comity Cl. 1—Privileges and Immunities

206 Chemung Canal Bank v. Lowery, 93 U.S. 72, 76 (1876). 207Douglas v. New York, N.H. & H. R. Co., 279 U.S. 377 (1929). 208 Chambers v. Baltimore & Ohio R.R., 207 U.S. 142 (1907). 209 New York v. O’Neill, 359 U.S. 1 (1959). Justices Douglas and Black dissented. 210 12 Wall. (79 U.S.) 418, 424 (1871). See also Downham v. Alexandria Council,

10 Wall. (77 U.S.) 173, 175 (1870). 211 Chalker v. Birmingham & Nw. Ry. Co., 249 U.S. 522 (1919). 212 252 U.S. 60 (1920). 213 Id., 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.

its operation as to resident plaintiffs, but not as to nonresidents,

during the period of the defendant’s absence from the State. 206 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 since it was applicable

alike to citizens and noncitizens residing out of the State. 207 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. 208

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 is not violative

of this clause. 209

Taxation

In the exercise of its taxing power, a State may not discriminate substantially between residents and nonresidents. In Ward v.

Maryland, 210 the Court set aside a state law which imposed specific taxes upon nonresidents for the privilege of selling within the

State goods which 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. 211 In Travis

v. Yale & Towne Mfg. Co., 212 the Court, while sustaining the right

of a State to tax income accruing within its borders to nonresidents, 213 held the particular tax void because it denied to nonresidents exemptions which were allowed to residents. The ‘‘terms

‘resident’ and ‘citizen’ are not synonymous,’’ wrote Justice Pitney,

‘‘. . . but a general taxing scheme . . . if it discriminates against all
ART. IV—STATES’ RELATIONS 877

Sec. 2—Interstate Comity Cl. 2—Interstate Rendition

214 252 U.S. 60, 78–79 (1920).

215Williams v. Fears, 179 U.S. 270, 274 (1900).

216 Haavik v. Alaska Packers Assn., 263 U.S. 510 (1924).

217Travellers’ Inc. Co. v. Connecticut, 185 U.S. 364, 371 (1902).

218Maxwell v. Bugbee, 250 U.S. 525 (1919).

219Kirtland 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. The decision in Colgate v.

Harvey was overruled in Madden v. Kentucky, 309 U.S. 83, 93 (1940).

nonresidents, has the necessary effect of including in the discrimination those who are citizens of other States; . . .’’ 214 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. 215 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. 216

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 which 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 the value of the real estate owned by the corporation. 217 Occasional or accidental inequality to a nonresident taxpayer is not sufficient to defeat a scheme of taxation whose operation is generally

equitable. 218 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. 219

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.
878 ART. IV—STATES’ RELATIONS

Sec. 2—Interstate Comity Cl. 2—Interstate Rendition

220 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). 221 Roberts v. Reilly, 116 U.S. 80, 94 (1885). See also Innes v. Tobin, 240 U.S.

127 (1916). Said Justice Story: ‘‘[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, 16 Pet. (41

U.S.) 539, 616, 618–619 (1842). 222Taylor v. Taintor, 16 Wall. (83 U.S.) 366, 371 (1873). 223 24 How. (65 U.S.) 66 (1861); cf. Prigg v. Pennsylvania, 16 Pet. (41 U.S.) 539,

612 (1842). 224 24 How. (65 U.S.) 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. 225Puerto 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., 230.

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. 220 The Supreme

Court has accepted this contemporaneous construction as establishing the validity of this legislation. 221 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, the demands of those laws may be satisfied before the

duty of obedience to the requisition arises. 222 But, in Kentucky. v.

Dennison, 223 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; . . .’’, 224 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. 225 Now, States and Territories may invoke the power of federal courts to enforce against state officers this and other rights
ART. IV—STATES’ RELATIONS 879

Sec. 2—Interstate Comity Cl. 2—Interstate Rendition

226 Id., 230. 227 Roberts v. Reilly, 116 U.S. 80 (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). 228Drew v. Thaw, 235 U.S. 432, 439 (1914). 229 Innes v. Tobin, 240 U.S. 127 (1916). 230 Bassing v. Cady, 208 U.S. 386 (1908). 231 Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903). 232Kentucky v. Dennison, 24 How. (65 U.S.) 66, 103 (1861). 233Taylor v. Taintor, 16 Wall. (83 U.S.) 366, 375 (1873). 234Kentucky v. Dennison, 24 How. (65 U.S.) 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). 235Munsey v. Clough, 196 U.S. 364 (1905); Pettibone v. Nichols, 203 U.S. 192

(1906).

created by federal statute, including equitable relief to compel performance of federally-imposed duties. 226

Fugitive From Justice: Defined.—To be a fugitive from justice within the meaning of this clause, it is not necessary that the

party charged should have left the State after an indictment found

or for the purpose of avoiding a prosecution anticipated or begun.

It is sufficient that the accused, having committed a crime within

one State and having left the jurisdiction before being subjected to

criminal process, is found within another State. 227 The motive

which induced the departure is immaterial. 228 Even if he 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. 229 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. 230 But a defendant cannot be

extradited if he was only constructively present in the demanding

State at the time of the commission of the crime charged. 231 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, 232 including misdemeanors. 233

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. 234 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. 235 The constitutionally

required surrender is not to be interfered with by habeas corpus
880 ART. IV—STATES’ RELATIONS

Sec. 2—Interstate Comity Cl. 2—Interstate Rendition

236Drew v. Thaw, 235 U.S. 432 (1914). 237Pettibone v. Nichols, 203 U.S. 192 (1906). 238 Biddinger v. Commissioner of Police, 245 U.S. 128 (1917). See also Rodman

v. Pothier, 264 U.S. 399 (1924). 239Sweeney v. Woodall, 344 U.S. 86 (1952). 240 Hyatt v. People ex rel. Corkran, 188 U.S. 691 (1903). See also South Carolina v. Bailey, 289 U.S. 412 (1933). 241Munsey v. Clough, 196 U.S. 364, 375 (1905). 242Michigan 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.’’ 243Ker v. Illinois, 119 U.S. 436, 444 (1886); Mahon v. Justice, 127 U.S. 700, 707,

712, 714 (1888). 244 Cook v. Hart, 146 U.S. 183, 193 (1892); Pettibone v. Nichols, 203 U.S. 192,

215 (1906). 245Lascelles v. Georgia, 148 U.S. 537, 543 (1893). 246 United States v. Rauscher, 119 U.S. 407, 430 (1886).

upon speculations as to what ought to be the result of a trial. 236

Nor is it proper thereby to inquire into the motives controlling the

actions of the governors of the demanding and surrendering

States. 237 Matters of defense, such as the running of the statute

of limitations, 238 or the contention that continued confinement in

the prison of the demanding State would amount to cruel and unjust punishment, 239 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. 240 If, however, the evidence is conflicting, habeas corpus is not a proper proceeding to try the question of alibi. 241 The habeas court’s role is, therefore, very limited. 242

Trial of Fugitives After Removal.—There is nothing in the

Constitution or laws of the United States which exempts an offender, 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, 243 or by abuse of legal

process, 244 and a fugitive lawfully extradited from another State

may be tried for an offense other than that for which he was surrendered. 245 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.’’ 246
ART. IV—STATES’ RELATIONS 881

Sec. 3—New States Cl. 1—Admission of States

247Prigg v. Pennsylvania, 16 Pet. (41 U.S.) 539, 612 (1842). 248 1 Stat. 302 (1793). 249 Jones v. Van Zandt, 5 How. (46 U.S.) 215, 229 (1847); Ableman v. Booth, 21

How. (62 U.S.) 506 (1859). 250Prigg v. Pennsylvania, 16 Pet. (41 U.S.) 539, 625 (1842). 251Moore v. Illinois, 14 How. (55 U.S.) 13, 17 (1853). 252 Escanaba Co. v. Chicago, 107 U.S. 678, 689 (1883).

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 which penalized such seizure was held unconstitutional. 247 Congress had the power and the duty, which it exercised by the Act of February 12, 1793, 248 to carry into effect the

rights given by this section, 249 and the States had no concurrent

power to legislate on the subject. 250 However, a state statute providing a penalty for harboring a fugitive slave was held not to conflict with this clause since it did not affect the right or remedy either of the 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. 251

SECTION 3. 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 was 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.’’ 252 This doctrine, now a

truism of constitutional law, did not find favor in the Constitu-
882 ART. IV—STATES’ RELATIONS

Sec. 3—New States Cl. 1—Admission of States

253 2 M. FARRAND, THE RECORDS OF THE FEDERAL CONVENTION OF 1787 (New

Haven; rev. ed. 1937), 454. 254 Ibid. 255 Ibid. The present provision was then adopted as a substitute. Id., 455. 256Pollard v. Hagan, 3 How. (44 U.S.) 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. 257 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). 258 2 Stat. 701, 703 (1812). 259 Justice Harlan, speaking for the Court, in United States v. Texas, 143 U.S.

621, 634 (1892) (citing 9 Stat. 108).

tional 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.’’ 253

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.’’ 254 Nonetheless, after

further expressions of opinion pro and con, the Convention voted

nine States to two to delete the requirement of equality. 255

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. 256 Since the admission of Tennessee in 1796, Congress has included in each

State’s act of admission a clause providing that the State enters

the Union ‘‘on an equal footing with the original States in all respects whatever.’’ 257 With the admission of Louisiana in 1812, the

principle of equality was extended to States created out of territory

purchased from a foreign power. 258 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.’’ 259

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,
ART. IV—STATES’ RELATIONS 883

Sec. 3—New States Cl. 1—Admission of States

260Permoli v. First Municipality, 3 How. (44 U.S.) 589, 609 (1845); McCabe v.

Atchison, T. & S.F. Ry Co., 235 U.S. 151 (1914); Illinois Central Railroad v. Illinois,

146 U.S. 387, 434 (1892); Knight v. U.S. Land Association, 142 U.S. 161, 183 (1891);

Weber v. Harbor Commissioners, 18 Wall. (85 U.S.) 57, 65 (1873). 261Pollard’s Lessee v. Hagan, 3 How. (44 U.S.) 212 (1845). See Mayor of New

Orleans v. United States, 10 Pet. (35 U.S.) 662 (1836); Permoli v. Municipality No.

1 of New Orleans, 3 How. (44 U.S.) 588 (1845). 262 3 Stat. 489, 492 (1819). 263Pollard’s Lessee v. Hagan, 3 How. (44 U.S.) 212, 228–229 (1845) (emphasis

supplied). And see id., 222–223. 264 Coyle v. Smith, 221 U.S. 559 (1911).

the Supreme Court has referred to the condition of equality as if

it were an inherent attribute of the Federal Union. 260 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. 261 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. 262 Rather than an

issue of mere land ownership, the Court saw the question as one

concerning sovereignty and jurisdiction of the States. Inasmuch as

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 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.’’ 263

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. 264 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’
884 ART. IV—STATES’ RELATIONS

Sec. 3—New States Cl. 1—Admission of States

265 Id., 567. 266South Carolina v. Katzenbach, 383 U.S. 301, 328–329 (1966). There is a

broader implication, however, in Baker v. Carr, 369 U.S. 186, 226 n. 53 (1962). 267Pollard’s Lessee v. Hagan, 3 How. (44 U.S.) 212, 224–225, 229–230 (1845);

Coyle v. Smith, 221 U.S. 559, 573–574 (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, 20 How. (61 U.S.) 84, 92

(1857). 268 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 Bridge Co. v.

Hatch, 125 U.S. 1, 9–10 (1888) (prevention of interference with navigability of waterways under commerce clause). 269 United States v. Texas, 339 U.S. 707, 716 (1950); Stearns v. Minnesota, 179

U.S. 223, 245 (1900).

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.’’ 265

The equal footing doctrine is a limitation only upon the terms

by which Congress admits a State. 266 That is, States must be admitted on an equal footing in the sense that Congress may not

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. 267 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.’’ 268

Until recently the requirement of equality has applied primarily to political standing and sovereignty rather than to economic or property rights. 269 Broadly speaking, every new State is

entitled to exercise all the powers of government which belong to
ART. IV—STATES’ RELATIONS 885

Sec. 3—New States Cl. 1—Admission of States

270Pollard v. Hagan, 3 How. (44 U.S.) 212, 223 (1845); McCabe v. Atchison T.

& S.F. Ry. Co., 235 U.S. 151 (1914). 271 Van Brocklin v. Tennessee, 117 U.S. 151, 167 (1886). 272Wilson v. Cook, 327 U.S. 474 (1946). 273Permoli v. First Municipality, 3 How. (44 U.S.) 589, 609 (1845); Sands v.

Manistee River Imp. Co., 123 U.S. 288, 296 (1887); see also Withers v. Buckley, 20

How. (61 U.S.) 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.

Co., 223 U.S. 390 (1912). 274Draper v. United States, 164 U.S. 240 (1896), following United States v.

McBratney, 104 U.S. 621 (1882). 275Dick v. United States, 208 U.S. 340 (1908); Ex parte Webb, 225 U.S. 663

(1912). 276 United States v. Sandoval, 231 U.S. 28 (1913). 277 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 170 (1892).

the original States of the Union. 270 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 271

or the State has ceded some degree of jurisdiction to the United

States, and, of course, no State can enact a law which 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. 272 Statutes applicable to territories, e.g., the

Northwest Territory Ordinance of 1787, cease to have any operative force when the territory, or any part thereof, is admitted to the

Union, except as adopted by state law. 273 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. 274 But the constitutional authority of Congress to regulate commerce with Indian tribes is not inconsistent

with the equality of new States, 275 and conditions inserted in the

New Mexico Enabling Act forbidding the introduction of liquor into

Indian territory were therefore valid. 276

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. 277

Judicial Proceedings Pending on Admission of New States

Whenever a territory is admitted into the Union, the cases

pending in the territorial court which 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
886 ART. IV—STATES’ RELATIONS

Sec. 3—New States Cl. 1—Admission of States

278 Baker v. Morton, 12 Wall. (79 U.S.) 150, 153 (1871). 279Freeborn v. Smith, 2 Wall. (69 U.S.) 160 (1865). 280 John v. Paullin, 231 U.S. 583 (1913). 281 Hunt v. Palao, 4 How. (45 U.S.) 589 (1846). Cf. Benner v. Porter, 9 How.

(50 U.S.) 235, 246 (1850). 282 3 How. (44 U.S.) 212, 223 (1845). See also Martin v. Waddell, 16 pet. (41

U.S.) 367, 410 (1842). 283See 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); Oregon ex rel. State Land Board 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 prestatehood grantee from the United States of riparian lands near

mouth of Columbia River owned soil below high-water mark). 284 United States v. California, 332 U.S. 19, 38 (1947); United States v. Louisiana, 339 U.S. 699 (1950). 285 339 U.S. 707, 716 (1950). See United States v. Maine, 420, U.S. 515 (1975)

(unanimously reaffirming the California, Louisiana, and Texas cases).

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. 278 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. 279 After a case, begun in a United States

court of a territory, is transferred to a state court under the operation of the enabling act and the state constitution, the appellate

procedure is governed by the state statutes and procedures. 280

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. 281

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. In

Pollard v. Hagan, 282 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 of navigable

water passes to a new State upon admission. The principle of this

case supplies the rule of decision in many property-claims cases. 283

After refusing to extend the inland-water rule of Pollard’s Lessee to the three mile marginal belt under the ocean along the

coast, 284 the Court applied the principle in reverse in United States

v. Texas. 285 Since the original States had been found not to own
ART. IV—STATES’ RELATIONS 887

Sec. 3—New States Cl. 2—Property and Territory

286 Brown v. Grant, 116 U.S. 207, 212 (1886). 287 67 Stat. 29, 43 U.S.C. §§ 1301–1315. 288 Alabama v. Texas, 347 U.S. 272, 274–277, 281 (1954). Justice Black and

Douglas dissented. 289Shively v. Bowlby, 152 U.S. 1, 47 (1894). See also Joy v. St. Louis, 201 U.S.

332 (1906). 290 United States v. Winans, 198 U.S. 371, 378 (1905); Seufert Bros. Co. 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 the exaction of a license fee which is both regulatory and revenue

producing. Tulee v. Washington, 315 U.S. 681 (1942). 291Ward v. Race Horse, 163 U.S. 504, 510, 514 (1896).

the soil under 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 286 has been qualified. However, when

Congress, through passage of the Submerged Lands Act of 1953, 287

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. 288

While the territorial status continues, the United States has

power to convey property rights, such as rights in soil below the

high-water mark along navigable waters, 289 or the right to fish in

designated waters, 290 which will be binding on the State. But a

treaty with an Indian tribe which gave hunting rights on unoccupied lands of the United States, which rights should cease when

the United States parted with its title to any of the land, was held

to be repealed by the admission to the Union of the territory in

which the hunting lands were situated. 291

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.
888 ART. IV—STATES’ RELATIONS

Sec. 3—New States Cl. 2—Property and Territory

292 14 Pet. (39 U.S.) 526 (1840). 293 Id., 533, 538. 294 Ashwander v. TVA, 297 U.S. 288, 335–340 (1936). See also Alabama Power

Co. v. Ickes, 302 U.S. 464 (1938). 295 United States v. Fitzgerald, 15 Pet. (40 U.S.) 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). 296Sioux Tribe v. United States, 316 U.S. 317 (1942); United States v. Midwest

Oil Co., 236 U.S. 459,469 (1915). 297Gibson v. Chouteau, 13 Wall. (80 U.S.) 92, 99 (1872); see also Irvine v. Marshall, 20 How. (61 U.S.) 558 (1858); Emblem v. Lincoln Land Co., 184 U.S. 660, 664

(1902).

PROPERTY AND TERRITORY: POWERS OF CONGRESS

PROPERTY OF THE UNITED STATES

Methods of Disposing Thereof

The Constitution is silent as to the methods of disposing of

property of the United States. In United States v. Gratiot, 292 in

which the validity of a lease of lead mines on government lands

was put 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.’’ 293 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. 294

Public Lands: Federal and State Powers Thereover

No appropriation of public lands may be made for any purpose

except by authority of Congress. 295 However, the long-continued

practice of withdrawing land from the public domain by Executive

Orders for the purpose of creating Indian reservations has raised

an implied delegation of authority from Congress to take such action. 296 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, 297 to declare the dignity and effect of titles emanat-
ART. IV—STATES’ RELATIONS 889

Sec. 3—New States Cl. 2—Property and Territory

298 Bagnell v. Broderick, 13 Pet. (38 U.S.) 436, 450 (1839). See also Field v.

Seabury, 19 How. (60 U.S.) 323, 332 (1857). 299Tameling v. United States Freehold & Immigration Co., 93 U.S. 644, 663

(1877). See also Maxwell Land-Grant Case, 121 U.S. 325, 366 (1887). 300 Ruddy v. Rossi, 248 U.S. 104 (1918). 301Light v. United States, 220 U.S. 523 (1911). See also The Yosemite Valley

Case, 15 Wall. (82 U.S.) 77 (1873). 302 Camfield v. United States, 167 U.S. 518, 525 (1897). See also Jourdan v.

Barrett, 4 How. (45 U.S.) 169 (1846): United States v. Waddell, 112 U.S. 76 (1884). 303 United States v. McGowan, 302 U.S. 535 (1938). 304 United States v. City of San Francisco, 310 U.S. 16 (1940). 305Kleppe v. New Mexico, 426 U.S. 529 (1976). 306 California Coastal Comm. v. Granite Rock Co., 480 U.S. 572 (1987). 307 Van Brocklin v. Tennessee, 117 U.S. 151 (1886); cf. Wilson v. Cook, 327 U.S.

474 (1946). 308Gibson v. Choutau, 13 Wall. (80 U.S.) 92, 99 (1872). See also Irvine v. Marshall, 20 How. (61 U.S.) 558 (1858); Emblem v. Lincoln Land Co., 184 U.S. 660, 664

(1902).

ing from the United States, 298 to determine the validity of grants

which antedate the government’s acquisition of the property, 299 to

exempt lands acquired under the homestead laws from previously

contracted debts, 300 to withdraw land from settlement and to prohibit grazing thereon, 301 to prevent unlawful occupation of public

property and to declare what are nuisances, as affecting such property, and provide for their abatement, 302 and to prohibit the introduction of liquor on lands purchased and used for an Indian colony. 303 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. 304

Unanimously upholding a federal law to protect wild-roaming

horses and burros on federal lands, the Court restated the applicable principles governing Congress’ 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. 305 Absent action by

Congress, however, States may in some instances exercise some jurisdiction over activities on federal lands. 306

No State can tax public lands of the United States within its

borders, 307 nor can state legislation interfere with the power of

Congress under this clause or embarrass its exercise. 308 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
890 ART. IV—STATES’ RELATIONS

Sec. 3—New States Cl. 2—Property and Territory

309Williams v. Lee, 358 U.S. 217 (1959). 310Wilcox v. McConnel, 13 Pet. (38 U.S.) 498, 517 (1839). 311Oklahoma v. Texas, 258 U.S. 574, 595 (1922). 312 United States v. Oregon, 295 U.S. 1, 28 (1935). 313Simms 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. Bank v. County of Yankton, 101 U.S. 129, 133 (1880). 314 Binns v. United States, 194 U.S. 486, 491 (1904). See also Sere v. Pitot, 6

Cr. (10 U.S.) 332, 336 (1810); Murphy v. Ramsey, 114 U.S. 15, 44 (1885). 315Walker v. New Mexico & S.P.R. Co., 165 U.S. 593, 604 (1897); Simms v.

Simms, 175 U.S. 162, 163 (1899); Wagoner v. Evans, 170 U.S. 588, 591 (1898). 316 24 Stat. 170 (1886). 317Downes 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). 318Downes 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., 312–313,

but what these are and how they are to be determined, in light of Balzac’s holding

owed by an Indian resident thereof to a non-Indian conducting a

store on the Reservation under federal license. 309 The question

whether title to land which 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 state legislation, so far as that

legislation is consistent with the admission that the title passed

and vested according to the laws of the United States.’’ 310 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. 311 But a state statute enacted

subsequently to a federal grant cannot operate to vest in the State

rights which either remained in the United States or passed to its

grantee. 312

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. 313 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, 314 which will then be invested with all legislative power except

as limited by the Constitution of the United States and acts of Congress. 315 In 1886, Congress prohibited the enactment by territorial

legislatures of local or special laws on enumerated subjects. 316 The

constitutional guarantees of private rights are applicable in territories which have been made a part of the United States by congressional action 317 but not in unincorporated territories. 318 Con-
ART. IV—STATES’ RELATIONS 891

Sec. 4—Republican Form of Government

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 the Court adheres to it, United States v.

Verdugo-Urquidez, 494 U.S. 259, 268 (1990); Harris v. Rosario, 446 U.S. 651 (1980),

and the developing caselaw using the cases as the proper analysis. Applying stateside rights in Puerto Rico are Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S.

663 (1974) (procedural due process); Examining Board 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); Posadas de Puerto

Rico Assocs. v. Tourism Co., 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). 319 American Insurance Co. v. Canter, 1 Pet. (26 U.S.) 511, 546 (1828). See also

Clinton v. Englebrecht, 13 Wall. (80 U.S.) 434–447 (1872); Hornbuckle v. Toombs,

18 Wall. (85 U.S.) 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). 320 American Ins. Co. v. Canter, 1 Pet. (26 U.S.) 511, 545 (1828). 321 ‘‘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 (New Haven: rev. ed. 1937), 22. 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, G. HUNT ed.

gress 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. 319

Such courts may exercise admiralty jurisdiction despite the fact

that such jurisdiction may be exercised in the States only by constitutional courts. 320

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. 321 Through the various
892 ART. IV—STATES’ RELATIONS

Sec. 4—Republican Form of Government

(New York: 1900), 336. On the background of the clause, see W. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION (Ithaca: 1972), ch. 1. 322Thus, 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 (New Haven: rev. ed. 1937), 193–194, 206.

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., 47. Madison then suggested language ‘‘that

the Constitutional authority of the States shall be guaranteed to them respectively

against domestic as 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., 47–49. 323Thus, 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., 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., 47. Following speakers alluded to the dangers of monarchy being created

peacefully as necessitating the provision. Id., 48. See W. WIECEK, THE GUARANTEE

CLAUSE OF THE U.S. CONSTITUTION (Ithaca: 1972), ch. 2. 324See Article I, § 8, cl. 15. 325See generally W. WIECEK, THE GUARANTEE CLAUSE OF THE U.S. CONSTITUTION (Ithaca: 1972).

326 7 How. (48 U.S.) 1 (1849). 327 Id., 42. 328 7 Wall. (74 U.S.) 700, 729 (1869). In Georgia v. Stanton, 6 Wall. (73 U.S.)

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.

permutations into its final form, 322 the object of the clause seems

clearly to have been more than an authorization for the Federal

Government to protect States against foreign invasion or internal

insurrection, 323 a power seemingly already conferred in any

case. 324 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. 325

In Luther v. Borden, 326 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.’’ 327 Texas v. White 328 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
ART. IV—STATES’ RELATIONS 893

Sec. 4—Republican Form of Government

329Pacific States Tel. & 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 District, 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. Hammond, 166

U.S. 506 (1897); Minor v. Happersett, 21 Wall. (88 U.S.) 162 (1875).

330 369 U.S. 186, 218–232 (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.

331More recently, the Court speaking through Justice O’Connor has raised without deciding the possibility that the guarantee clause is justiciable and is a constraint upon Congress’ power to regulate the activities of the States. New York v.

United States, 112 S.Ct. 2408, 2432–2433 (1992); Gregory v. Ashcroft, 501 U.S. 452,

463 (1991). The opinions draw support from a powerful argument for utilizing 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).

332 7 How. (48 U.S.) 1 (1849).

333 1 Stat. 424.

334Luther v. Borden, 7 How. (48 U.S.) 1, 43 (1849).

335Supra, pp. 472–473, 557–561.

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, 329 a status from which the Court’s

opinion in Baker v. Carr, 330 despite its substantial curbing of the

political question doctrine, did not release it. 331

Similarly, in Luther v. Borden, 332 the Court indicated that it

rested with Congress to determine upon 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

which required the Federal Government to interfere, but that instead Congress had by the act of February 28, 1795, 333 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’’, 334 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. 335