[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[The Constitution of the United States of America (With Annotations)]
[Article IV. States' Relations]
[From the U.S. Government Printing Office, www.gpo.gov]

[[Page 829]]

                               ARTICLE IV -- STATES' RELATIONS



        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

[[Page 830]]

                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

[[Page 831]]



                               ARTICLE IV

                            STATES' RELATIONS

  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.


      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

[[Page 832]]
ments of the courts of one country shall receive from those of another 

        \1\Clark v. Graham, 6 Wheat. (19 U.S.) 577 (1821), is an early 
case in which the Supreme Court enforced this rule.

        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\

        \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. Sec. Sec. 1738-1739. See also 28 U.S.C. 
Sec. Sec. 1740-1742.


      In General

        Article IV, Sec. 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 

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


[[Page 833]]

        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.

        \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.
        \6\On the same basis, a judgment cannot be impeached either in, 
or out of, the State by showing that it was based on a mistake of law. 
American Express Co. v. Mullins, 212 U.S. 311, 312 (1909). Fauntleroy v. 
Lum, 210 U.S. 230 (1908); Hartford Life Ins. Co. v. Ibs, 237 U.S. 662 
(1915); Hartford Life Ins. Co. v. Barber, 245 U.S. 146 (1917).
        \7\3 Wheat. (16 U.S.) 234 (1818).

        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,

[[Page 834]]
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\

        \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.
        \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).

        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

[[Page 835]]
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\

        \11\Sistare v. Sistare, 218 U.S. 1 (1910).
        \12\Michigan Trust Co. v. Ferry, 228 U.S. 346 (1913). See also 
Fall v. Eastin, 215 U.S. 1 (1909).
        \13\Milwaukee County v. White Co., 296 U.S. 268, 275-276 (1935).

        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\

        \14\Board of Public Works v. Columbia College, 17 Wall. (84 
U.S.) 521 (1873); Robertson v. Pickrell, 109 U.S. 608, 610 (1883).
        \15\Kersh Lake Dist. v. Johnson, 309 U.S. 485 (1940). See also 
Texas & Pac. Ry. 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).

        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\

        \18\3 Wheat. (16 U.S.) 234 (1818).
        \19\Anglo-Am. Prov. Co. v. Davis Prov. Co., No. 1, 191 U.S. 373 
        \20\Fauntleroy v. Lum, 210 U.S. 230 (1908). Justice Holmes who 
spoke for the Court in both cases, asserted in his opinion in the latter 
that the New York statute was ``directed to jurisdiction,'' the 
Mississippi statute to ``merits,'' but four Justices could not grasp the 


[[Page 836]]

        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\

        \21\Kenney v. Supreme Lodge, 252 U.S. 411 (1920), and cases 
there cited. Holmes again spoke for the Court. See also Cook, ``The 
Powers of Congress under the Full Faith and Credit Clause,'' 28 Yale 
L.J. 421, 434 (1919).
        \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).
        \25\Titus v. Wallick, 306 U.S. 282, 291-292 (1939).
        \26\Morris v. Jones, 329 U.S. 545 (1947). Moreover, there is no 
apparent reason why Congress, acting on the implications of Marshall's 
words in Hampton v. McConnell, 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?


[[Page 837]]
      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\

        \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).

        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\

        \29\Grover & 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).
        \30\Pennoyer v. Neff, 95 U.S. 714 (1878). See, for a 
reformulation of this case's due process foundation, Shaffer v. Heitner, 
433 U.S. 186 (1977).

        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

[[Page 838]]
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\

        \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).
        \32\Milliken 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).

        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\

        \34\Hancock Nat. Bank v. Farnum, 176 U.S. 640 (1900).
        \35\Stacy v. Thrasher, 6 How. (47 U.S.) 44, 58 (1848).
        \36\Bigelow v. Old Dominion Copper Co., 225 U.S. 111 (1912).

        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

[[Page 839]]
faith and credit as it was entitled to in Ohio.\38\ Later cases 
establish under both the Fourteenth Amendment and Article IV, Sec. 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\

        \37\18 How. (59 U.S.) 404 (1856).
        \38\To the same effect is Connecticut Mutual Life Ins. Co. v. 
Spratley, 172 U.S. 602 (1899).
        \39\Simon v. Southern Railway, 236 U.S. 115 (1915).
        \40\Goldey 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).

        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.

        \43\Kane v. New Jersey, 242 U.S. 160 (1916); Hess v. Pawloski, 
274 U.S. 352 (1927), limited in Wuchter v. Pizzutti, 276 U.S. 13 (1928).

        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

[[Page 840]]
seized outside the county to which, by the statute under which it had 
acted, its jurisdiction was confined.

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

        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\

        \45\1 H. Black, A Treatise on the Law of Judgments (St Paul: 
1891), Sec. 246.
        \46\See also Simmons v. Saul, 138 U.S. 439, 448 (1891). In other 
words, the challenge to jurisdiction is treated as equivalent to the 
plea nul tiel record, a plea 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).
      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\

        \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).


[[Page 841]]

        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.''

        \49\181 U.S. 155, 162 (1901).
        \50\201 U.S. 562 (1906).

        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.

[[Page 842]]
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.

        \51\317 U.S. 287 (1942); 325 U.S. 226 (1945).
        \52\305 U.S. 32 (1938).

        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

[[Page 843]]
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\

        \53\317 U.S. 287, 298-299 (1942).
        \54\Id., 302.

        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\

        \55\Id., 311.

        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 

        \56\325 U.S. 226, 229 (1945).
        \57\Bell v. Bell, 181 U.S. 175 (1901); Andrews v. Andrews, 188 
U.S. 14 (1903).
        \58\Strong dissents were filed which have influenced subsequent 
holdings. Among these was that of Justice Rutledge which attacked both 
the consequences of the decision as well as the concept of 
jurisdictional domicile on which it was founded.
        ``Unless `matrimonial domicil,' banished in Williams I [by the 
overruling of Haddock v. Haddock ], has returned renamed [`domicil of 
origin'] in Williams II, every decree becomes vulnerable in every State. 
Every divorce, wherever granted . . . may now be reexamined by every 
other State, upon the same or different evidence, to redetermine the 
`jurisdiction fact,' always the ultimate conclusion of `domicil.' . . .
        ``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 
        ``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.


[[Page 844]]

        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

[[Page 845]]
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.

        \59\334 U.S. 343 (1948).

        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.

        \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.

        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

[[Page 846]]
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 

        \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.
        \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).

        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

[[Page 847]]
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\

        \63\325 U.S. 279 (1945).
        \64\Id., 281-283.

        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\

        \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).

        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

[[Page 848]]
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\

        \68\381 U.S. 81 (1965).
        \69\Id., 84-85.
        \70\334 U.S. 541 (1948).
        \71\381 U.S., 84-85.
        \72\Id., 85.

        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

[[Page 849]]
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\

        \73\Barber v. Barber, 323 U.S. 77, 84 (1944).
        \74\Sistare 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).
        \75\Griffin 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 

        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.''

        \77\Halvey v. Halvey, 330 U.S. 610, 615 (1947).

        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

[[Page 850]]
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\

        \78\May 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.''
        \80\Ford 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. Sec. 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.

        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.

        \81\334 U.S. 541 (1948).

        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,

[[Page 851]]
it was competent to sequester the husband's property in New York to 
satisfy his obligations to the wife.\84\

        \82\350 U.S. 568 (1956).
        \83\Four Justices, Black, Douglas, Clark, and Chief Justice 
Warren, disputed the Court's contention that the Florida decree 
contained no ruling on the wife's entitlement to alimony and mentioned 
that for want of personal jurisdiction over the wife, the Florida court 
was not competent to dispose of that issue. Id., 575
        \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.
      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\

        \85\Tilt 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).

        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\

        \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).
        \88\Tilt v. Kelsey, 207 U.S. 43 (1907). In the case of Borer v. 
Chapman, 119 U.S. 587, 599 (1887), involving a complicated set of facts, 
it was held that a judgment in a probate proceeding, which was merely 
ancillary to proceedings in another State and which ordered the residue 
of the estate to be assigned to the legatee and discharged the executor 
from further liability, did not prevent a creditor, who was not a 
resident of the State in which the ancillary judgment was rendered, from 
setting up his claim in the state probate court which had the primary 
administration of the estate.


[[Page 852]]

        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\

        \89\Blodgett v. Silberman, 277 U.S. 1 (1928).
        \90\Kerr 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).

        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\

        \92\Olmstead v. Olmstead, 216 U.S. 386 (1910).
        \93\Hood v. McGehee, 237 U.S. 611 (1915).

        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

[[Page 853]]
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\

        \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).
      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, Sec. 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.

        \95\The 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.
      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, Sec. 1 and

[[Page 854]]
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 

        \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 
        \100\Fauntleroy 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).


      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

[[Page 855]]
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\

        \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).
        \104\Scott 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 

        In a case decided in 1887, however, the Court remarked: 
``Without doubt the constitutional requirement, Art. IV, Sec. 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

[[Page 856]]
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.

        \105\Chicago & Alton R.R. v. Wiggins Ferry Co., 119 U.S. 615, 
622 (1887).
        \106\Smithsonian 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. Co. v. Industrial Accident Comm., 306 
U.S. 493 (1939); Alaska Packers Assn. v. Industrial Accident Comm., 294 
U.S. 532 (1935).
        \109\Phillips 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)).

        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.

        \110\Dennick v. Railroad Co., 103 U.S. 11 (1881), was the first 
so-called ``Death Act'' case to reach the Supreme Court. See also 
Stewart v. Baltimore & 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.


[[Page 857]]

        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 

        \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).

        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\

        \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 


[[Page 858]]

        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\

        \115\Modern 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).

        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

[[Page 859]]
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.

        \119\237 U.S.. 531 (1915), followed in Modern Woodmen v. Mixer, 
267 U.S. 544 (1925).

        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.

        \120\305 U.S. 66, 75, 79 (1938).
        \121\331 U.S. 586, 588-589, 637 (1947).

        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.

[[Page 860]]
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.

        \122\New York Life Ins. Co. v. Head, 234 U.S. 149 (1914); Aetna 
Life Ins. Co. v. Dunken, 266 U.S. 389 (1924).
        \123\193 U.S. 635 (1904).

        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 

[[Page 861]]
icy stipulation which forbids direct actions until after the 
determination of the liability of the insured tortfeasor.\127\

        \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).
        \126\Griffin v. McCoach, 313 U.S. 498 (1941).
        \127\Watson 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.

        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 

        \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).

        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

[[Page 862]]
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 

        \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).
        \132\Pacific 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).

        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

[[Page 863]]
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\

        \134\Magnolia Petroleum Co. v. Hunt, 320 U.S. 430 (1943).
        \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., 
        \137\Id., 627-628, 630.
        \138\Thomas 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.

        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\

        \139\Watkins v. Conway, 385 U.S. 188, 190-191 (1965).


      Full Faith and Credit in Federal Courts

        By the terms of 28 U.S.C. Sec. Sec. 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

[[Page 864]]
States.\140\ Where suits to enforce the laws of one State are 
entertained in courts of another on principles of comity, federal 
district courts sitting in that State may entertain them and should, if 
they do not infringe federal law or policy.\141\ However, the refusal of 
a territorial court in Hawaii, having jurisdiction of the action which 
was on a policy issued by a New York insurance company, to admit 
evidence that an administrator had been appointed and a suit brought by 
him on a bond in the federal court in New York wherein no judgment had 
been entered, did not violate this clause.\142\

        \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 
        \141\Milwaukee County v. White Co., 296 U.S. 268 (1935).
        \142\Equitable Life Assurance Society v. Brown, 187 U.S. 308 
(1902). See also Gibson v. Lyon, 115 U.S. 439 (1885).

        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\

        \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).
      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

[[Page 865]]
angle as it today views the broader question of the scope of state 
legislative power. When and if this day arrives, state statutes and 
judicial decisions will be given such extraterritorial operation as 
seems reasonable to the Court to give them. In short, the rule of the 
dominance of legal policy of the forum State will be superseded by that 
of judicial review.\144\

        \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 

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

[[Page 866]]


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

        \145\Cook, The Power of Congress Under the Full Faith and Credit 
Clause, 28 Yale L.J. 421, 430 (1919).

        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 

                       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\

        \146\No right, privilege, or immunity is conferred by the 
Constitution in respect to judgments of foreign states and nations. 
Aetna Life Insurance Co. v. Tremblay, 223 U.S. 185 (1912). See also 
Hilton v. Guyot, 159 U.S. 113, 234 (1895), where a French judgment 
offered in defense was held not a bar to the suit. Four Justices 
dissented on the ground that ``the application of the doctrine of res 
judicata does not rest in discretion; and it is for the Government, and 
not for its courts, to adopt the principle of retorsion, if deemed under 
any circumstances desirable or necessary.'' At the same sitting of the 
Court, an action in a United States circuit court on a Canadian judgment 
was sustained on the same ground of reciprocity, Ritchie v. McMullen, 
159 U.S. 235 (1895). See also Ingenohl v. Olsen & Co., 273 U.S. 541 
(1927), where a decision of the Supreme Court of the Philippine Islands 
was reversed for refusal to enforce a judgment of the Supreme Court of 
the British colony of Hong Kong, which was rendered ``after a fair trial 
by a court having jurisdiction of the parties.'' Another instance of 
international cooperation in the judicial field is furnished by letters 
rogatory. See 28 U.S.C. Sec. 1781. Several States have similar 
provisions, 2 J. Moore, Digest of International Law (Washington: 1906), 

[[Page 867]]

                               ARTICLE IV

                            STATES' RELATIONS

  Section 2. The Citizens of each State shall be entitled to all 
Privileges and Immunities of Citizens in the several States.


      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\

        \147\Toomer v. Witsell, 334 U.S. 385, 395 (1948).
        \148\The Federalist, No. 42 (J. Cooke ed. 1961), 285-286 
        \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).
        \152\Slaughter-House Cases, 16 Wall. (83 U.S.) 36, 75 (1873).

[[Page 868]]

        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\

        \153\Scott v. Sandford, 19 How. (60 U.S.) 393 (1857).
        \154\Id., 518, 527-529.
        \155\Today, the due process clause of the Fifth Amendment 
imposes equal protection standards on the Federal Government. Bolling v. 
Sharpe, 347 U.S. 497 (1954); Schneider v. Rusk, 377 U.S. 163, 168 
(1964); Shapiro v. Thompson, 394 U.S. 618, 641-642 (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.

        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

[[Page 869]]
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\

        \158\McKane v. Durston, 153 U.S. 684, 687 (1894); and see cases 
cited infra, n.160.
        \159\City of Detroit v. Osborne, 135 U.S. 492 (1890).
        \160\Paul 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).

        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\

        \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).
        \162\Supreme 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).

        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

[[Page 870]]
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\

        \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).
        \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).
      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.

        \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).
      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

[[Page 871]]
born in the United States, and subject to the jurisdiction thereof are 
concerned, the question was put at rest by the Fourteenth Amendment.

        \169\Scott v. Sandford, 19 How. (60 U.S.) 393 (1857).
        \170\Id., 403-411.
        \171\Id., 572-590.

        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\

        \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).
      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''

[[Page 872]]
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\

        \178\6 Fed. Cas. 546 (No. 3,230) (C.C.E.D. Pa., 1823).
        \179\Id., 551-552.
        \180\Id., 552.

        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

[[Page 873]]
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\

        \183\94 U.S. 391 (1877).
        \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, Sec. 2 
on the authority of Toomer v. Witsell .

        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

[[Page 874]]
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.

        \188\The 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.
        \191\Supreme Court of New Hampshire v. Piper, 470 U.S. 274 
        \192\United Building & Construction Trades Council v. Mayor of 
Camden, 465 U.S. 208 (1984).

        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\

        \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).

        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\

        \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)).
      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

[[Page 875]]
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\

        \196\LaTourette v. McMaster, 248 U.S. 465 (1919).
        \197\Doherty & Co. v. Goodman, 294 U.S. 623 (1935).
        \198\Hess v. Pawloski, 274 U.S. 352, 356 (1927).
        \199\Ferry 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).
        \202\Williams v. Bruffy, 96 U.S. 176, 184 (1878).
      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

[[Page 876]]
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\

        \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.
        \206\Chemung Canal Bank v. Lowery, 93 U.S. 72, 76 (1876).
        \207\Douglas 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.

        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

[[Page 877]]
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\

        \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.
        \214\252 U.S. 60, 78-79 (1920).
        \215\Williams v. Fears, 179 U.S. 270, 274 (1900).
        \216\Haavik v. Alaska Packers Assn., 263 U.S. 510 (1924).

        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 over-all 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\

        \217\Travellers' Inc. Co. v. Connecticut, 185 U.S. 364, 371 
        \218\Maxwell v. Bugbee, 250 U.S. 525 (1919).
        \219\Kirtland v. Hotchkiss, 100 U.S. 491, 499 (1879). Cf. 
Colgate v. Harvey, 296 U.S. 404 (1935), in which discriminatory taxation 
of bank deposits outside the State owned by a citizen of the State was 
held to infringe a privilege of national citizenship, in contravention 
of the Fourteenth Amendment. The decision in Colgate v. Harvey was 
overruled in Madden v. Kentucky, 309 U.S. 83, 93 (1940).

  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 

[[Page 878]]

                          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 

[[Page 879]]
created by federal statute, including equitable relief to compel 
performance of federally-imposed duties.\226\

        \220\1 Stat. 302 (1793), 18 U.S.C. Sec. 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).
        \222\Taylor 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. Sec. 1073.
        \225\Puerto Rico v. Branstad, 483 U.S. 219 (1987). ``Kentucky v. 
Dennison is the product of another time. The conception of the relation 
between the States and the Federal Government there announced is 
fundamentally incompatible with more than a century of constitutional 
development.'' Id., 230.
        \226\Id., 230.

        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\

        \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).
        \228\Drew 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).
        \232\Kentucky v. Dennison, 24 How. (65 U.S.) 66, 103 (1861).
        \233\Taylor v. Taintor, 16 Wall. (83 U.S.) 366, 375 (1873).

        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

[[Page 880]]
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 

        \234\Kentucky 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).
        \235\Munsey v. Clough, 196 U.S. 364 (1905); Pettibone v. 
Nichols, 203 U.S. 192 (1906).
        \236\Drew v. Thaw, 235 U.S. 432 (1914).
        \237\Pettibone 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).
        \239\Sweeney 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).
        \241\Munsey v. Clough, 196 U.S. 364, 375 (1905).
        \242\Michigan v. Doran, 439 U.S. 282, 289 (1978). In California 
v. Superior Court, 482 U.S. 400 (1987), the Court reiterated that 
extradition is a ``summary procedure.''

        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 

        \243\Ker 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).
        \245\Lascelles v. Georgia, 148 U.S. 537, 543 (1893).
        \246\United States v. Rauscher, 119 U.S. 407, 430 (1886).

[[Page 881]]

  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\

        \247\Prigg 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).
        \250\Prigg v. Pennsylvania, 16 Pet. (41 U.S.) 539, 625 (1842).
        \251\Moore v. Illinois, 14 How. (55 U.S.) 13, 17 (1853).


                               ARTICLE IV

                            STATES' RELATIONS

  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.


        ``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

[[Page 882]]
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\

        \252\Escanaba Co. v. Chicago, 107 U.S. 678, 689 (1883).
        \253\2 M. Farrand, The Records of the Federal Convention of 1787 
(New Haven; rev. ed. 1937), 454.
        \255\Ibid. The present provision was then adopted as a 
substitute. Id., 455.

        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\

        \256\Pollard 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).

        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,

[[Page 883]]
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 

        \260\Permoli 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).
        \261\Pollard'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 
        \262\3 Stat. 489, 492 (1819).
        \263\Pollard's Lessee v. Hagan, 3 How. (44 U.S.) 212, 228-229 
(1845) (emphasis supplied). And see id., 222-223.

        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'

[[Page 884]]
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\

        \264\Coyle v. Smith, 221 U.S. 559 (1911).
        \265\Id., 567.

        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\

        \266\South 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).
        \267\Pollard'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).

        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

[[Page 885]]
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\

        \269\United States v. Texas, 339 U.S. 707, 716 (1950); Stearns 
v. Minnesota, 179 U.S. 223, 245 (1900).
        \270\Pollard 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).
        \272\Wilson v. Cook, 327 U.S. 474 (1946).
        \273\Permoli 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).
        \274\Draper v. United States, 164 U.S. 240 (1896), following 
United States v. McBratney, 104 U.S. 621 (1882).
        \275\Dick 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).

        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\

        \277\Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 170 (1892).
      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

[[Page 886]]
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\

        \278\Baker v. Morton, 12 Wall. (79 U.S.) 150, 153 (1871).
        \279\Freeborn v. Smith, 2 Wall. (69 U.S.) 160 (1865).
        \280\John v. Paullin, 231 U.S. 583 (1913).

        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\

        \281\Hunt v. Palao, 4 How. (45 U.S.) 589 (1846). Cf. Benner v. 
Porter, 9 How. (50 U.S.) 235, 246 (1850).
      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\

        \282\3 How. (44 U.S.) 212, 223 (1845). See also Martin v. 
Waddell, 16 pet. (41 U.S.) 367, 410 (1842).
        \283\See 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).

        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

[[Page 887]]
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 

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

        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 

        \289\Shively 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).
        \291\Ward v. Race Horse, 163 U.S. 504, 510, 514 (1896).

  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.

[[Page 888]]


      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\

        \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).
      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

[[Page 889]]
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\

        \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 
        \296\Sioux Tribe v. United States, 316 U.S. 317 (1942); United 
States v. Midwest Oil Co., 236 U.S. 459,469 (1915).
        \297\Gibson 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).
        \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).
        \299\Tameling v. United States Freehold & Immigration Co., 93 
U.S. 644, 663 (1877). See also Maxwell Land-Grant Case, 121 U.S. 325, 
366 (1887).
        \300\Ruddy v. Rossi, 248 U.S. 104 (1918).
        \301\Light 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).

        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\

        \305\Kleppe v. New Mexico, 426 U.S. 529 (1976).
        \306\California Coastal Comm. v. Granite Rock Co., 480 U.S. 572 

        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

[[Page 890]]
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\

        \307\Van Brocklin v. Tennessee, 117 U.S. 151 (1886); cf. Wilson 
v. Cook, 327 U.S. 474 (1946).
        \308\Gibson 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).
        \309\Williams v. Lee, 358 U.S. 217 (1959).
        \310\Wilcox v. McConnel, 13 Pet. (38 U.S.) 498, 517 (1839).
        \311\Oklahoma v. Texas, 258 U.S. 574, 595 (1922).
        \312\United States v. Oregon, 295 U.S. 1, 28 (1935).
      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\ 

[[Page 891]]
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 

        \313\Simms v. Simms, 175 U.S. 162, 168 (1899). See also United 
States v. McMillan, 165 U.S. 504, 510 (1897); El Paso & N.E. Ry. v. 
Gutierrez, 215 U.S. 87 (1909); First Nat. 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).
        \315\Walker 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).
        \317\Downes v. Bidwell, 182 U.S. 244, 271 (1901). See also 
Mormon Church v. United States, 136 U.S. 1, 14 (1890); ICC v. United 
States ex rel. Humboldt Steamship Co., 224 U.S. 474 (1912).
        \318\Downes v. Bidwell, 182 U.S. 244 (1901);Dorr v. United 
States, 195 U.S. 138 (1904); Balzac v. Porto Rico, 258 U.S. 298 (1922) 
(collectively, the Insular Cases). The guarantees of fundamental rights 
apply to persons in Puerto Rico, id., 312-313, but what these are and 
how they are to be determined, in light of Balzac's holding that the 
right to a civil jury trial was not protected. The vitality of the 
Insular Cases has been questioned by some Justices, Reid v. Covert, 354 
U.S. 1, 14 (1957) (plurality opinion); Torres v. Puerto Rico, 442 U.S. 
465, 474, 475 (1979) (concurring opinion of four Justices), but there is 
no doubt 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 


                               ARTICLE IV

                            STATES' RELATIONS

  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 


        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 

[[Page 892]]
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\

        \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. (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.
        \322\Thus, on June 11, the language of the provision was on 
Madison's motion changed to: ``Resolved that a republican constitution 
and its existing laws ought to be guaranteed to each state by the United 
States.'' 1 M. Farrand, The Records of the Federal Convention of 1787 
(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-
        \323\Thus, Randolph on June 11, supporting Madison's version 
pending then, said that ``a republican government must be the basis of 
our national union; and no state in it ought to have it in their power 
to change its government into a monarchy.'' 1 id., 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.
        \324\See Article I, Sec. 8, cl. 15.
        \325\See generally W. Wiecek, The Guarantee Clause of the U.S. 
Constitution (Ithaca: 1972).

        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

[[Page 893]]
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\

        \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.
        \329\Pacific 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.
        \331\More 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).

        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 

        \332\7 How. (48 U.S.) 1 (1849).
        \333\1 Stat. 424.
        \334\Luther v. Borden, 7 How. (48 U.S.) 1, 43 (1849).

        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\

        \335\Supra, pp. 472-473, 557-561.