Article IV, United States Constitution

Article IV of the United States Constitution was designed to facilitate smooth relations between the states and between the national government and the states, facilitate the return of fugitive criminals and fugitive slaves, provide for the settlement of territories and their seamless admission as states, and ensure a republican form of government in the states. The article is at the heart of American federalism. The relatively few cases under the article have been dramatically important to the development of constitutional law and American history.

ARTICLE IV, SECTION 1: FULL FAITH AND CREDIT

The full faith and credit clause was designed to ensure that states would respect, and enforce, the judicial and administrative decisions of other states (“the public Acts, Records, and judicial Proceedings of every other State.”) The clause has generally worked well. For example, most of the time states have respected marriages, divorces, and child custody orders issued in another state. Before the advent of no-fault divorce, people seeking a divorce would often temporarily move to another state where divorce was easily obtained—Indiana in much of the nineteenth century and Nevada in much of the twentieth century. The domicile states usually would not accept property, alimony, or support rulings from the Indiana or Nevada courts but would enforce the divorce decree. Sometimes these issues involved things that are legal in one state but not another. For example, thirty-one states prohibit first-cousin marriage, but all of them appear to recognize such marriages performed in other states. On a very simple level, states give full faith and credit to driver's licenses issued in another state.

However, in certain areas of law—particularly those cases involving slavery, race, same-sex couples, and transgender rights—some states have emphatically refused to give full faith and credit to the decisions and administrative acts of other states. In the antebellum period a number of northern states refused to recognize southern slave law, and such states emancipated slaves brought in by visitors or travelers. On the other hand, a few northern states specifically allowed visiting masters to bring slaves with them for a short period of time. Similarly, some southern states recognized northern laws or decisions, as well as federal laws, emancipating visiting slaves, while others adamantly refused to do so. The slave Dred Scott initially won his freedom from a Missouri trial court because he had lived in the free state of Illinois and in present-day Minnesota, a federal territory made free by the Compromise of 1820. However, in 1852 the Supreme Court of Missouri held that Scott was still a slave. The Missouri court reversed nearly thirty years of state precedents and emphatically declared it would no longer recognize the laws of the free states on this issue. At the same time the Missouri court completely ignored the federal law.

In the twentieth century most southern states refused to recognize legal marriages performed under state or federal law if they involved mixed-race couples. In Loving v. Virginia, 388 U.S. 1 ( 1967 ), the US Supreme Court finally ruled that such laws were unconstitutional. The case involved a mixed-race couple legally married in Washington, DC, who had been arrested for illegal cohabitation in Virginia and exiled from the state. Later, many states refused to give full faith and credit to samesex marriages. In 1996 Congress passed the Defense of Marriage Act (DOMA), which allowed states to refuse to give legal recognition to same-sex marriages performed in other states. However, in United States v. Windsor, 570 U.S. ___ ( 2013

ARTICLE IV, SECTION 2: PRIVILEGES AND IMMUNITIES, INTERSTATE CRIMINAL EXTRADITION, AND FUGITIVE SLAVES

The first clause of Section 2 provides that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” The language is open ended and imprecise. Generally it has led to ease of interstate movement and relocation, and the ability of most people to conduct business in other states or just travel to them. Exceptions are found in the movement of people in professions that require licenses (such as lawyers or physicians) or businesses that are highly regulated by the states (like banking or insurance). Thus a lawyer licensed to practice in one state cannot practice in another without first being admitted to the bar of the new state. Similarly, an insurance company in one state must comply with regulations in every state where the company wants to do business. Some states have refused to allow out-of-state residents to obtain fishing or hunting licenses or have charged them more for such licenses. Thus in 1823 a federal circuit court held that New Jersey, in refusing to allows citizens of other states to harvest oysters in New Jersey waters, did not violate the privileges and immunities clause of the Constitution.

The most important exceptions to the granting of privileges and immunities, like full faith and credit, have revolved around race, poverty, and issues of gender and sexuality. Before the Civil War free blacks were generally not allowed to visit or move to most of the slave states. South Carolina actually jailed free black sailors on merchant ships docking in Charleston, releasing them only when the ship's captain paid for their upkeep and took them back to the ship as it was about to set sail. In 1890 California, which did not allow people born in China or Japan to practice law in that state, refused to allow a Chinese-born lawyer from New York to take the bar in California even though that lawyer had been admitted to the bar in New York. Similarly, as noted above, before the 1967 Supreme Court decision in Loving v. Virginia, interracial couples legally married in the state where they lived could be arrested merely for entering most of the southern states. In 1992 California refused to give equal welfare payments to people who had recently moved from other states, but the Supreme Court struck this policy down in Saenz v. Roe, 526 U.S. 489 ( 1999 ).

Interstate Criminal Extradition. The second clause of Section 2 provides that escaped convicts and people under indictment “be delivered up” on demand of the governor of the state from which they escaped. Generally this clause has worked well, in part because most states have no interest in harboring fugitives from justice who might continue their criminal career in their new state. Not surprisingly, however, when slavery and race have been involved, governors have failed to cooperate. In 1791 the governor of Virginia refused to return three men wanted in Pennsylvania for kidnapping a free black and enslaving him in Virginia. This controversy eventually led to a federal law of 1793 that regulated both the extradition of fugitives from justice and the return of fugitive slaves. However, the Virginians were never returned to Pennsylvania even after this law was passed.

Similarly, in 1837 the governor of Maryland refused to allow the extradition of four men from his state who kidnapped a black family in Pennsylvania and brought them to Maryland where they were then sold south. The “kidnappers” claimed they were fugitive slaves, although one or two of the children brought to Maryland had actually been born in Pennsylvania and their mother, Margaret Morgan, had lived her entire life as a free person in Maryland. In Prigg v. Pennsylvania, 41 U.S. 539 ( 1842 ), the US Supreme Court upheld the actions of the Maryland slave catchers and the refusal of the governor of Maryland to extradite them to Pennsylvania.

In the 1830s governors in the North ignored extradition requisitions from southern states that sought to prosecute abolitionist publishers who had mailed their antislavery papers and pamphlets to the slave states. These publishers had never actually set foot in the slave states, and thus the northern governors argued they could not be extradited to those states.

In the late 1850s two consecutive governors of Ohio refused to send to Kentucky a free black man named Willis Lago. Lago was charged in Kentucky with stealing, for helping his fiancée, who was a slave, to escape. The Ohio governors argued that human beings are not property and that therefore it is not possible to “steal” one. In Kentucky v. Dennison, 65 U.S. 66 ( 1861 ), the Supreme Court chastised Ohio for not fulfilling its obligation to return Lago, but also ruled that it lacked the power to force the governor of a state to act.

In 1976 California governor Jerry Brown refused to approve the extradition of Dennis Banks, a leader of the American Indian Movement, who had been convicted in South Dakota of rioting and assault after leading civil rights protests. Brown believed, as did many others, that the conviction by an all-white jury was politically motivated. After Brown left office, Banks surrendered to South Dakota authorities and served time in prison.

In Puerto Rico v. Branstad, 483 U.S. 219 ( 1987 ), the Supreme Court reversed the precedent from Dennison and ordered the governor of Iowa to return a citizen of his state charged with murder in Puerto Rico. Governor Terry Branstad argued in part that because the fugitive was white he could never get a fair trial in Puerto Rico, and that if his race led to the indictment for murder then it should have been manslaughter or involuntary homicide.

Fugitive Slaves. The last clause of Section 2, known as the fugitive slave clause, provided that states could not free runaway slaves from other states but instead that they “shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” This clause led to the federal fugitive slave laws of 1793 and 1850 and to an enormous number of legal controversies. Northern states initially passed “personal liberty laws” to guarantee due process for alleged fugitive slaves. In Prigg v. Pennsylvania ( 1842 ) the Supreme Court struck down these laws on the grounds that they interfered with the federal law and the constitutional clause itself. After this ruling, many northern states simply refused to cooperate in the return of fugitives under a law that prevented state officials from helping capture fugitives and barred slave owners from using local jails to house their runaways.

This situation led to the Fugitive Slave Law of 1850, which set up America's first national law-enforcement bureaucracy, with special commissioners appointed in every county with the authority to call on the national army, state militias, or local citizens to enforce the law. The enactment of this law in turn led to a number of riots and rescues, and relatively few returns of fugitives. The Supreme Court and the lower federal court consistently upheld these laws and almost always sided with slave owners in prosecutions and lawsuits over the return of fugitive slaves. The failure of the North to cooperate in the return of fugitive slaves—and southern kidnapping of free blacks and the refusal of the South to return such kidnappers for trial—exacerbated sectional tensions in the 1840s and 1850s.

ARTICLE IV, SECTION 3: TERRITORIES AND NEW STATES

Clause 1 of Section 3 authorized the admission of new states while providing that new states could not be formed from the territory of existing states without the permission of those states. This clause has worked remarkably well, as the nation grew from thirteen to fifty states. There have been relatively few controversies over the admission of new states. The first early one—and one that was unique—involved the admission in 1812 of Louisiana, which had a civil law heritage and a French linguistic heritage. Congress required that Louisiana adopt jury trials and the English language before it could be admitted to the Union.

However, Congress did not require that Louisiana abandon its civil law heritage for the regulation of property rights or personal status. After Louisiana's admission almost all controversies over the admission of new states were tied to slavery, the Civil War, race, and religion. In the early nineteenth century there were significant debates over allowing new slave states into the Union, leading to the Missouri Compromise of 1820, which brought Missouri into the Union as a slave state but banned slavery in most of the rest of the western territories. As part of this compromise Massachusetts relinquished what is today the state of Maine to enter the Union as a separate state. In the 1830s there were significant debates over the admission of Texas because it would be a slave state. In the late 1850s President James Buchanan failed in his attempt to bring Kansas into the Union as a slave state, in part because the overwhelming majority of settlers there opposed slavery. In 1863 West Virginia was broken off from Virginia and became a separate state. With Virginia out of the Union, a provisional Virginia pro-Union government voted to allow the creation of the new state, which Congress approved.

After the Civil War, Congress debated the readmission of former Confederate states, forcing them to accept emancipation, black citizenship, and black suffrage as a price for rejoining the Union. In the late nineteenth century Congress refused to consider Utah statehood because the majority of residents were members of the Church of Jesus Christ of Latter-day Saints (LDS), better known as the Mormon Church, which practiced polygamy. In 1890 the LDS Church renounced polygamy, and in January 1896 Utah became a state.

In the 1950s southerners in Congress opposed Hawaii statehood because of the nonwhite majority there, which would lead to the election of Asian Americans to the House and Senate. Although Hawaii had a much larger population than Alaska, Hawaii's admission came after Alaska's because of racist opposition in Congress.

Rules and Regulations for the Territories. The second clause of Section 3 gives Congress the power to “dispose” of federal lands and make “all needful Rules and Regulations” for the territories and other federal property. Until the 1850s Congress used the clause to regulate federal territories, acquire new territories (including the Louisiana Purchase, Florida, Texas, and the Mexican cession), and pass laws to govern territories until they had enough residents to merit statehood. Some of the most vociferous debates in Congress centered on whether to allow slavery, or ban it, in the western territories. The debate over slavery in the territories led to reaffirming the Northwest Ordinance in 1791 after the Constitution went into effect, and to the Missouri Compromise ( 1820 ), the Compromise of 1850, and the Kansas– Nebraska Act ( 1854 ).

In this period Congress passed many other laws to create new territories and provide them with a basic government under appointed territorial governors. Under these general federal laws, the territories borrowed existing statutes from other states to provide for the prohibition and prosecution of crimes, land transactions, and other laws necessary for an orderly society. The territorial laws also set the stage for territorial legislatures to be elected and pass their own laws. Until 1857, except for issues surrounding slavery and race, there was nothing particularly controversial about the federal laws creating and governing territories. However, in Dred Scott v. Sandford, 60 U.S. 393 ( 1856 ), the Supreme Court held that (1) any congressional law banning slavery in the federal territories unconstitutionally deprived citizens of the property rights in slaves; and (2) that Congress could not actually regulate the territories because the territories clause referred only to territory owned by the United States in 1787 and not to any newly acquired land.

This reasoning by the Court never worked its way into American constitutional law, and was effectively rejected after the Spanish-American War of 1898 in a series of decisions known as the Insular Cases, decided between 1901 and 1920. In those cases the Supreme Court held that the Constitution did not “follow the flag” into newly acquired territories. However, the Supreme Court modified the doctrine of the Insular Cases in Boumediene v. Bush, 553 U.S. 723 ( 2008 ). In this case the Supreme Court held that the US Constitution applied to the US military base at Guantanamo Bay, Cuba, to the extent that a non-US citizen held there had the right to a writ of habeas corpus.

ARTICLE IV, SECTION 4: THE GUARANTEE CLAUSE

Section 4, known as the guarantee clause, provides that the United States government “shall guarantee to every State in this Union a Republican Form of Government” and protect the states from “Invasion” or “domestic Violence.” A “republican form” of government requires that every state have an elected legislature. In Luther v. Borden, 48 U.S. 1 ( 1849 ), the Supreme Court refused to interfere in the internal political chaos of Rhode Island, which did not have a state constitution until 1843 and acquired one only after a short-lived rebellion, known as the Dorr War. Before this rebellion the vast majority of adult men in Rhode Island could not vote. In essence, Rhode Island illustrated that the national government would not in fact guarantee a republican form of government, in which the people (defined in those days as free adult men) were allowed to elect their representatives.

After the Civil War, Congress used the republican form of government clause to help guarantee black suffrage. But by 1900 the overwhelming majority of blacks had been disfranchised in the South, and neither Congress nor the Courts lifted a finger to remedy a situation in which a majority of the adult males of some states were unable to vote. In Baker v. Carr, 369 U.S. 186 ( 1962 ), and Reynolds v. Sims, 377 U.S. 533 ( 1964 ), the Court relied primarily on the equal protection clause of the Fourteenth Amendment to overturn state apportionment schemes that were in fact overwhelmingly malapportioned. The Court hinted that these systems might violate the guarantee clause but did not rely on it. The “domestic Violence” provision has been used, in tandem with a similar clause in Article I of the Constitution, to suppress slave rebellions, John Brown's 1859 raid on Harpers Ferry, Virginia, and race riots in the 1960s.

SEE ALSO Admission of New States ; Constitution ; Dred Scott v. Sandford ; Prigg v. Pennsylvania ; Territorial Government .

BIBLIOGRAPHY

Finkelman, Paul. An Imperfect Union: Slavery, Federalism and Comity. Chapel Hill: University of North Carolina Press, 1981.

Finkelman, Paul. “Story Telling on the Supreme Court: Prigg v. Pennsylvania and Justice Joseph Story's Judicial Nationalism.” Supreme Court Review 1994 (1994): 247–94.

Firmage, Edwin B., and R. Collin Mangrum. Zion in the Courts: A Legal History of the Church of Jesus Christ of Latter-day Saints, 1830–1900. Urbana: University of Illinois Press, 1988.

Konig, David T., Paul Finkelman, and Christopher Alan Bracey, eds. The Dred Scott Case: Historical and Contemporary Perspectives on Race and Law. Athens: Ohio University Press, 2010.

Morris, Thomas D. Free Men All: The Personal Liberty Laws of the North, 1780–1861. Baltimore: Johns Hopkins University Press, 1974.

Schuchman, John S. “The Political Background of the Political-Question Doctrine: The Judges and the Dorr War.” American Journal of Legal History 16, no. 2 (1972): 111–25.

Urofsky, Melvin I., and Paul Finkelman. A March of Liberty: A Constitutional History of the United States. 2 vols. 3rd ed. New York: Oxford University Press, 2011.

Wiecek, William M. The Guarantee Clause of the U.S. Constitution. Ithaca, NY: Cornell University Press, 1972.

Paul Finkelman
University of Saskatchewan School of Law University of Pennsylvania