Full faith and credit and new Constitutional attacks (column)
The signs were unnerving. As we passed from Colorado into Kansas on I-70 in the wee hours, we were treated to a blossoming of orange at the roadside: “Police checkpoint in two miles.” Then, “Stop in One Mile.” Then, “Vehicle Check Ahead.” As a child of the Sixties, there was…apprehension. Finally, “drug-sniffing dogs deployed.” Oh, snap.
It being the hour it was, we sailed past the putative barricade without impediment; no dogs, cars officers or any other creatures were stirring. But the episode set me thinking on — among other things — Article IV, section one of the Constitution.
For those a little rusty on their foundational law, that’s the bit which says (in part) “full Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State…” and describes the process under which said “acts and records” are to be observed by each of our constituent states. These days, it’s getting a bit of a workout.
Article IV won’t do anything about the “Checkpoint Charlie” signage on I-70, there because of the dope citizens of the Sunflower State are worried is leaking over their border. Marijuana is illegal federally, so the fact that one can smoke oneself stupid in Burlingame is more due to prosecutorial forbearance than anything in the constitution. On other contemporary matters, however, the “full Faith and Credit” clause does apply, and is doing mischief.
The origin of the clause lies in the inchoate legal system of the colonies and is taken almost verbatim from the Articles of Confederation which followed. It was so universally accepted a concept that Madison described it only briefly in the Federalist #42 as a method of providing judicial guidance among the states; there are few indications that the Founders, or the legislators and judges who followed thought that states would pass laws so divergent one from the other that they would require official action through Article IV. Its enabling law passed quietly in 1790; the first serious application in 1818 stressed that it had a “preclusive effect,” i.e., that the legislature of state A cannot annul a law passed in state B. And there’s the rub.
Can state Y modify state Z’s child-support and custody orders in a case, to better suit its own sense of “the best interests of the child?” Yes, because Congress has recently decided to put forth specific language on this. Both the “Parental Kidnapping Act” and the “Full Faith and Credit for Child Support Orders Act” offer similar authority to states in very narrow and specific sets of circumstances. And then there’s the “Defense of Marriage Act.”
Passed in 1996, the Defense of Marriage Act specifically empowers individual states not to recognize the “acts and Records” of their sisters in the limited areas of extending the secular definition of marriage to homosexuals. It wasn’t the marriages themselves; if the voters of Hawai’i decided it was appropriate to expand the definition of matrimony in this way, well and good. The line was crossed when the newly-married insisted that the citizens of South Carolina share their joy – or else.
DOMA has been roundly criticized as an unconstitutional interference in the sovereignty and family law of the several states, but it is not; instead, it is a perfectly legitimate exercise of federal regulation of the extraterritoriality of various state laws. Such criticism also disregards the second sentence of Section 1, which empowers Congress with the ability to determine “…the effect thereof” of the aforesaid acts and records.
DOMA has also been criticized as an unconstitutional usurpation of Supreme Court judgements, particularly on uniform application of law; one of the grounds of a case currently before the court. This contradicts another purpose of the “Full Faith and Credit” clause: preservation of the meaningful autonomy of the states. If the several states are no longer allowed to say “None for me, thanks,” to their sisters, we have a unitary and national government — which most of the Founders explicitly rejected for good and valid reasons rising from their experiences with George III. In such a situation New York and California could write the laws and the Federal government, aided by legions of lawyers and activists, would see to it that the other 48 comply, chop-chop. After 226 years, we would have irretrievably lost the federal republic that served us and the world so well.
I am certain those leading the charge would tell us that such a change is needed, and a “small price to pay for making our world fairer.” Which is transparently false: any such change will be neither cheap nor fair. They never have been.
Morgan Liddick writes a weekly column for the Summit Daily News.
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