The US Constitution’s ‘Full Faith and Credit Clause’: recognition of same-sex marriages

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Zia Akhtar*
Grays Inn, London
phlawgraduate@gmail.com

 

Introduction

A common-law marriage is a valid marriage when the couple cohabits, they hold each other as husband and wife, and there is an agreement that the couple intends to be married. Under the conflicts of laws and ‘Full Faith and Credit Clause’ of the United States Constitution (FFCC),[1] states must recognise common-law marriages when such marriage is valid in a sister state. The FFCC has been instrumental in the development of family law by its impact on other stations – its enabling provision has the effect of validating the same judicial acceptance of another state’s certification or annulment. It has been subject to judicial reflection in recent rulings concerning same-sex marriages, which have been recognised by one state but are deemed invalid by another jurisdiction.

The FFCC affects how courts apply other states’ laws when deciding cases based in diversity jurisdiction. This provides the ‘district courts with original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States’.[2] This has an impact on married couples, their assets and division of property on dissolution of marriage because it is an exception to the traditional marriage-law rule of lex loci celebrationis. This held that any court should recognise a marriage under the laws of the state where it was made, based on the principle that state courts may apply their own procedural rules, or lex fori (‘law of the forum’), but they must apply the substantive rules of the place where the event or transaction that caused the dispute took place – the lex loci (‘law of the place’).

In principle, the Supreme Court has protected the institution of marriage as can be read from its ruling in Griswold v Connecticut 381 US 479 (1965), a significant judgment on contraception for married couples in which Justice William O'Douglas ruled:

‘Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.’[3]

The concept of marriage in federal law is sui generis because the union is presumed to be everlasting, and cannot be terminated without adjudication and the state’s permission through a divorce proceeding. It is a unique institution that ‘triggers legal rights, responsibilities, and benefits not afforded to unmarried persons, pursuant to a compact that is public and social in nature’.[4]

The enactment of the Defense of Marriage Act (DOMA) 1996 included an exemption to the application of the FFCC. Section 3 stated that: ‘the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife’. It codified non-recognition of same-sex marriage for all federal purposes and denied benefits including all marriage benefits such as insurance for government employees, social security and revenue exemptions.

It was the Supreme Court’s adjudication on the constitutional validity of same-sex marriages that established the legal basis of federal recognition for same-sex marriages – they are now legal in all 50 states. The conflicting precedence will continue to cause confusion between litigants with the likely result that the subject matter of appeal will come before the apex court, where it will adjudged in accordance with Article IV, Section 1 of the Constitution.

Federal recognition of same-sex marriages

The process of granting the formalisation of same-sex marriages was accomplished by the enabling framework of the US Constitution. It was by reference to Article 5, which establishes due process as a requirement in legislative acts, that it was possible for states to be given a clearer direction as to where the law stood in relation to the FFCC in this area of marriage law.

In United States v Windsor (2013) 577 US, the Supreme Court considered the issue of whether DOMA deprives same-sex couples, who are legally married under state laws, of due process protected under Article 5 and given equal protection under Article 14 of the Bill of Rights. Edith Windsor and Thea Spyer, who married in Canada in 2007, had their union recognised in the State of New York, which had granted same-sex couples the same rights as domestic partners in 1993. Spyer died in 2009, leaving her entire estate to Windsor, who had attempted to claim the federal estate tax exemption for surviving spouses, but was prevented from doing so under section 3 of the DOMA.

The District Court ruled against the US, finding section 3 of DOMA to be unconstitutional and ordering the Treasury to refund Windsor’s tax with interest. An appeal was filed and the District Court’s decision was affirmed by the Court of Appeals of the Second Circuit. Although the US government did not seek to defend the constitutionality of DOMA, they refused to pay Windsor the refund. This led to a petition for writ of certiorari and the case was argued before the Supreme Court.

The Supreme Court held that DOMA violated ‘basic due process and equal protection principles applicable to the Federal Government’. The Court held that ‘interference with the equal dignity of same-sex marriages was the “essence” of DOMA, which identified and made unequal a ‘subset of state-sanctioned marriages’. It stated that DOMA sought to, and does in fact, provide a disadvantage, separate status and stigma on those who entered into same-sex marriages. Furthermore, the Court said: ‘[DOMA] frustrates New York’s objective of eliminating equality by writing inequality into the entire United States Code… creating two contradictory marriage regimes within the same State’.[5]

The ruling declared the Act to be unconstitutional, and deprives the liberty of the person protected by the Fifth Amendment of the Constitution. At the time of the ruling, more than 70 per cent of states and the District of Columbia already recognised same-sex marriage, and only 13 states had bans. The same-sex couples invoked the Fourteenth Amendment in claiming that the states of Kentucky, Michigan, Ohio and Tennessee had violated it by denying them the right to marry or recognising their legal marriage from another state.

The issue of the constitutional validity of same-sex marriages came before the Sixth Circuit Court in Ohio where the issue was pleaded in Obergefell v Wymyslo, 962 F Supp 2d 968, 973, 978, 997–98 (SD Ohio 2013). The issue was twofold: first, whether the Fifth Amendment Due Process Clause or the Fourteenth Amendment Equal Protection Clause require states to expand the definition of marriage to include same-sex marriage. The Court held that ‘it did not sanction the states to conduct same-sex marriage’.[6] The second issue was: ‘Does the Constitution prohibit a State from denying recognition to same-sex marriages conducted in other States?’[7] The court evaluated this question in context of the FFCC and the right to travel. The Court determined that the Article IV, Section 1 Clause had never required ‘a State to apply another State’s law in violation of its own legitimate public policy’.[8] Therefore, because of the non-applicability of the Equal Protection Clause, the court held that the non-recognition provisions did not violate the FFCC. Moreover, the Court inferred that some states, such as Ohio, did not recognise certain out-of-state heterosexual marriages.[9] The Court stated further that under the constitutional ‘right to travel’, none of the challenged state laws prohibited LBGT people from travelling in or out the state, and that those married same-sex couples who travelled into the state were treated ‘like other citizens of that State’, whose same-sex marriages were also prohibited under state law.[10] The determination was that the non-recognition laws did not violate the right to travel.[11]

The appeal reached the Supreme Court in Obergefell v Hodges, 576 US ___ (2015), where the prohibition on the states’ bans on same-sex marriage and refusal to acknowledge legal same-sex marriages in other jurisdictions was judicially reviewed. The appellants presented several arguments, and asserted that they were not seeking to create a new and non-existent right to same-sex marriage. Justice Kennedy, writing for the majority, overturned the appeal court's ruling and held that: ‘The 14th Amendment requires a State to license a marriage between 2 people of the same sex when their marriage was lawfully licensed and performed out of state.’[12]

Justice Kennedy concluded:

‘No union is more profound than marriage, for it embodies the highest ideal of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfilment for themselves. Their hope is not to be condemned to live in loneliness, excluded form one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right’.[13]

In his reasoning, Justice Kennedy elevates same-sex marriage to a civil right and gives it an underlying sense of ‘dignity’. It is as if he was granting his recognition of same-sex marriage into a moral right and relief from an oppression of unjust laws that upheld only a traditional marriage. The objective of same-sex marriage, in his opinion, is not to weaken marriage but to ‘expand’ its dimension and endorse different forms of marriage.[14]

Justice Scalia in his dissent held the supremacy of the Constitution to allow self rule to the states in order for them to exercise laws except those as follows:

Forbidden are laws “impairing the Obligation of Contracts, (US Const, Art I, section 10) denying “Full Faith and Credit” to the “public Acts” of other States, (Art IV, section 1) prohibiting the free exercise of religion, (Art IV, section 1) abridging the freedom of speech, (Amdt 1) infringing the right to keep and bear arms, (Ibid) authorizing unreasonable searches and sei­zures, (Amdt 2) and so forth. Aside from these limitations, those powers “reserved to the States respectively, or to the people” (Amdt 4) can be exercised as the States or the People de­sire. These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process? Of course not.[15]

Justice Thomas, also in dissenting opinion, held that the definition of due process clause as a substantive right was not appropriate. In order for it to come under the 14th Amendment it had to protect 'life, liberty and property'.[16] This distorts the constitutional text, which guar­antees only whatever 'process' is 'due' before a person is deprived of life, liberty and property (US Const, Amdt 14, section 1). Worse, it invites judges to do exactly what the majority has done here: 'roa[m] at large in the constitu­tional field’ guided only by their personal views as to the 'fundamental rights' protected by that document.[17]

Justice Roberts in his dissent objected to the categorisation of the right of same-sex marriage to that of ‘individual religious liberty’. He derided the role of judges as acting in the place of the legislature because he stated: 'Allowing unelected federal judges to select which un­enumerated rights rank as “fundamental” and to strike down state laws on the basis of that determination raises obvious concerns about the judicial role. Our precedents have accordingly insisted that judges “exercise the utmost care” in identifying implied fundamental rights, “lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court".'[18]

However, in equating the recognition of same-sex marriages to the prohibition of interracial marriages in some states, the majority in the Supreme Court was providing the judgment with a civil rights legitimacy. It echoed the Supreme Court decision in Loving v Virginia 388 US 1 (1967), in which Virginia’s state law prohibited interracial marriage between white and black people as ‘miscegenation’. The interracial couple had legally married in Washington, DC in 1958. When they returned to their home state, they were charged with unlawful cohabitation and jailed. This law was overruled by the Court as it invalidated a prohibition on interracial marriage under both the Equal Protection and the Due Process Clauses.

Chief Justice Warren stated:

‘Marriage is one of the basic civil rights of man, fundamental to our very existence and survival… The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State’.[19]

It is significant that the rulings by the Supreme Court that granted same-sex couples civil rights were delivered in the term of the Obama administration. Prior to the Windsor judgment, he became the first sitting US President to endorse same-sex marriages as fully legitimate in all states. In 2012, Obama mentioned in an interview with ABC Television that ‘I’ve just concluded that, for me personally, it is important to go ahead and affirm that I think same-sex couples should be able to get married’.[20]

Impact of ruling on adoption

The aftermath of Windsor and Obergefell brought the issue to the surface of whether the Supreme Court will sanction adoption by same-sex couples. Justice Kennedy’s ratio in these cases emphasised the importance of protecting children and the dignity of their families, and this rationale supported challenges to the adoption laws barring same-sex couples from adopting children. This has been considered by the Supreme Court with reference to the FFCC, which included the evaluation of the question of whether one state must recognise another state’s marriage.

In ex parte EL (EL v VL) NO 114059 (18/9/05), there were two women who were in a long-term relationship and had three children through donor insemination. The non-biological mother, VL, adopted the children in Georgia. When the parents later ended their relationship, the biological mother, EL, kept VL from seeing the children. VL sought visitation in Alabama, where the family lives. EL opposed her request, arguing that the Georgia adoption was invalid in Alabama. The trial court recognised VL’s adoption and granted her visitation, but EL appealed the decision. The Court of Civil Appeals initially ruled that the adoption should not be respected in Alabama, but VL and the guardian ad litems asked for the case to be reheard. The Court ruled that the adoption must be recognised and EL then sought judicial review by the Alabama Supreme Court.

On 18 September 2015, the Alabama Supreme Court issued an order refusing to recognise VL’s adoption in Georgia and declared it ‘void’. This was because even though VL raised the children from birth and both women participated in the adoption hearing and consented to the adoption, the Court disregarded the precedent requiring states to respect court judgments from other states. It ruled that the state of Alabama can regard the adoption as void based on its view that the Georgia court should not have granted the adoption in 2007.

VL appealed to the US Supreme Court to review the Alabama Supreme Court decision and sought an emergency order permitting her to visit her children while her appeal was pending. In her submission in EL v VL 577 US ___ (2016), VL noted that the Alabama Supreme Court’s decision was unprecedented – before this ruling, no state Supreme Court in the country had refused to recognise a same-sex parent’s adoption from another state, or any out-of-state adoption, based on a disagreement with how the court issuing the adoption interpreted its own adoption laws.

The Supreme Court, per curium, granted VL’s request for an emergency order permitting her to visit her three adopted children, suspending the Alabama Supreme Court decision refusing to recognise the mother’s adoption so she was able to have visitation pending the Court’s consideration of her case. It also unanimously reversed the decision refusing to recognise VL’s adoption of her three children in Georgia, which restored VL her full rights as an adoptive parent.

The Supreme Court judges heard no oral argument and, in a per curiam opinion with no dissents, relied on the FFCC in Article IV, Section 1 of the Constitution, which requires one state to respect the judgments of another state’s courts. The Alabama Supreme Court tried to get around this settled rule by invoking an exception to full faith and credit for judgments that were entered by an out-of-state court that lacked jurisdiction. This exception did not apply because the Georgia court that ordered the adoption was unquestionably the court with jurisdiction to hear adoption matters. The Court's opinion was that the Alabama Supreme Court was taking issue with the Georgia court’s ruling that its own state law allowed an adoption in these circumstances, which was not about jurisdiction but about the merits of the case.

Jane Schacter argued that this ruling, while ‘limited’, makes three important points. First:

‘[S]everal states do not permit second parent adoptions in the circumstances posed in this case. This opinion makes clear that when a same-sex family secures such a second parent adoption in one state and then moves to another that does not permit it, the children’s relationship with their adoptive parents will be protected and the new state will not get a chance to second guess the court that originally granted the adoption’.

This rule engenders important ‘stability for children and parents’.

Second, the recently extended right of same-sex couples to marry in all 50 states will ‘allow same-sex families like the one created by EL and VL to more easily protect the parental rights of both parents and guard against “cynical” efforts like the one launched by EL to disavow her prior support of VL’s parental status’. Finally, based on the Supreme Court's opinion of ‘exclusive emphasis on full faith and credit’, it infers ‘nothing about the constitutionality of state laws that restrict the ability of same-sex couples to adopt or become foster parents’.[21]

The Supreme Court has recognised a constitutional right to marry for same-sex couples. It has now also extended the same spousal rights that heterosexual couples have for adoption. The decision has implications for the FFCC, because in the past, only one parent in the same-sex couple had the right to register for children in states that didn’t recognise same-sex couples. Therefore, any adopted children would only have one parent on the registration form if they were from one of those states, and the Article IV Section 1 was negated.[22]

Constitutional implications of the ruling

The decision in Obergefell v Hodgescan be viewed as a constitutionally significant ruling and as falling in a sequence of cases where the judges have shaped the public opinion by their judgment. This intervention by the judges has legalised same sex marriages where previously they had decided on a matter of interracial marriage and on abortion at the Supreme Court level. This shows an intersection between constitutional law, legality and political ideology, which is possible with reference to the US Constitution because of the separate branches of the executive, legislature and the judiciary.

This process has had an early formulation in the estimation of the jurists who consider the Supreme Court as a forum for policy and opinion-making.[23] Barry Friedman reflects on this interrelationship in his treatise, The Will of the People, by suggesting a correlation between developing public opinion and the legal system. He states that: ‘Although these changes are reflected in judicial decisions, they are rarely initiated there.’[24] Friedman’s more profound contribution is in suggesting a more general approach to the issue of how democracy and legality interact. He observes that the Court and public opinion rarely stay far apart for long periods, at least on matters that are significant to many people, but tend to converge with time. He asserts: ‘What the Constitution is understood to encompass has changed over time in ways that are dramatic, sweeping, and often permanent’.[25]

Ferejohn and Pasquino, concurring with Friedman’s argument, postulate that he concentrates on the notion that the Supreme Court conforms with the public view but that he does not pay sufficient attention to moulding by the court of public opinion. They state that there are several methods by which the ‘convergence can take place each with different implications for law and democracy. The Court’s jurisprudence could change because some members change their views, possibly in response to felt public pressures, or because some members are replaced. But it is also possible that on some issues, public opinion moves towards Courts’ favoured position’.[26]

They state that, while there may be differences of opinion, the ‘structure of the American constitutional system and basic features of public opinion make such confrontations not only rare, but also not very threatening to the Court’.[27] The Court deliberations ‘on some particular issues, needs to be attentive to public views’. The best instances that the Court has to be concerned with are those in which the officials would actually ‘pay attention to or comply with a particular ruling’.[28]

Ferejohn gives the instance of the Court’s judgment in Brown v Board of Education 347 US 483 (1954). It declared segregation in state schools as unconstitutional, which would not be enforced because a ‘few critically located people or officials could refuse to respect or apply judicial rulings in circumstances where this refusal could not be easily challenged (or even noticed)’. The Court’s apprehension was that its ruling would be ‘simply be ignored or its rulings disregarded’. These issues restrict ‘the boundaries of the judicial power to change an entrenched set of social practices. These instances seem rare, even if they are dramatic’.[29]

Robert C Post and Reva B Siegel discuss the impact of judicial review on the civil liberty case of Roe v Wade 410 US 113 (1973), which overturned rulings that criminalised or restricted access to abortion. They assert that:

‘[T]he judges regularly affirm the authority of their constitutional judgments by invoking the distinction between law and politics. They rely on professional legal reason to separate law from politics. If judges appear to yield to political pressure, the public may lose confidence in the authority of courts to declare constitutional law. This tension between law and politics is pervasive in our constitutional democracy. We can see the same dilemma structuring debate over the confirmation of Supreme Court Justices.[30]

The assertion of ‘democratic constitutionalism’ is about the constitutional order that pervades the ‘tension between the rule of law and self-governance’. In the wider sense it displays the constitutional purpose of the Supreme Court bending to the ‘insistence of popular beliefs and yet simultaneously retains integrity as law’.[31] This is the basis upon which judges make the law and cause their opinion-making to be in accordance with the changing landscape of social and political dimensions. It is reflective of the decisions that have been set down by the Court since it decided to act as a constitutional branch that could assert the law.

Conclusion

The Supreme Court’s interpretation of the FFCC has been the driving force for the realisation of same-sex marriage across the states in the US. It has now become a constitutional requirement for states to apply the law that began with Windsor when DOMA was invalidated and cemented in Obergefell v Hodges when the Due Process Clause in Article 5 and equal protection under Article 14 were given full force in the case. There is relevance for Article IV, Section 1 to marriage by the assumption that marriage is different than any other subject of state statutory law, together with the principle that states cannot now disagree on a matter of policy that has traditionally been within their realm to determine.

Article IV Section 1 has traditionally bound all states to recognise each other’s marriages, except for those where a couple briefly leaves their domicile state to procure a marriage they could not get back home. Specifically, a marriage’s validity is supposed to be determined by the law of the place where the marriage was celebrated, not the subsequent domicile, which confirms the parties’ expectations, and provides stability in an area where it is needed because of issues such as adoption and marriage property. It avoids the potential problems that would arise if the legality of a marriage varied from state to state.

The Due Process and Equal Protection Clauses place the obligation on the Court to resolve differences of interpretation in the interstate conflict of laws. The recognition of the same-sex unions as marriages in the legal framework is the result. A rigid and literal enforcement of the FFCC, without regard to the statute of the forum court, would lead to the absurd result that marriage recognition will violate public policy even if it was validly celebrated elsewhere.

 

Notes



* Zia Akhtar holds an LLB (Lon) LLM (Lon) from the University of Sussex, where he is currently a Phd candidate.

[1] Article IV, Section 1.

[2] 28 US Code s 1332, 1, a.

[4] 752 AM JUR 2D Marriage Section 1 (2011).

[5] Justice M Kennedy delivering the opinion of the 5-4 majority stated at pp 13–20.

[6] District Judge Timothy S Black in giving the Final Order granting Plaintiffs’ motion for Declaratory Judgment and Permanent Injunction at399.

[7] At 418. Under its analysis of the Full Faith and Credit Clause, the Sixth Circuit held that the Clause had never required ‘a State to apply another State’s law in violation of its own legitimate public policy’, and because of its ruling on the first issue, it determined that the non-recognition provisions did not violate the Clause. Ibid 419–420.

[8] Quoting Nevada v Hall 440, 442 (1979).

[9] De Boer 772, F 3d at 419.

[10] At 419–420 (quoting Saenz Roe 526 US 489, 1999).

[11] Ibid. This implies that in situations such as that of the Plaintiffs, where same-sex couples legally marry outside of Ohio, then reside in Ohio, it is a different right to that of the fundamental right to marry that is implicated. Here, the constitutional due process right at issue is not the right to marry, but the right not to be deprived of one’s existing legal marriage, as well as its attendant benefits and protections.

[12] Justice Kennedy stated further ‘When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed’ at p 11.

[13] p 28. The Opinion was bringing the ruling within the Equal Protection Clause.

[14] Ibid. The impact of this provision is that it is guaranteed under the Due Process clause, which is available in the Fifth and the Fourteenth Amendments. While the Fourteenth Amendment applied, the Fifth Amendment guarantee of due process also provides that the states may not deny any person within their jurisdiction ‘the equal protection of the laws’. 

[15] Justice Scalia quoted from United States v Windsor, 570 US ___, ___ (2013) at 16 ‘[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.’

[16] Justice Thomas referred to McDonald v Chicago, 561 US 742, 811–812 (2010) (Thomas, J, concurring in part and concurring in judgment).

[17] Planned Parenthood of Southeastern Pa v Casey, 505 US 833, 953, 965 (1992) (Rehnquist, C J, concurring in judgment in part and dissenting in part) (quoting Gris­wold v Connecticut, 381 US 479, 502 (1965) (Harlan, J,concurring in judgment)).

[18] p 11. Justice Roberts quoted Washington v Glucksberg, 521 US 702, 720 (1997).

[19] The state of Virginia's statutory scheme to prevent marriages between persons solely on the basis of racial classifications was held to violate the Equal Protection and Due Process Clauses of the Fourteenth Amendment, at pp 4–12.

[20] President Obama, ‘Remarks by the President at Signing of Executive Order on LGBT Workplace Discrimination’ (The White House East Room, Washington, DC, 21 July 2014) available at https://obamawhitehouse.archives.gov/the-press-office/2014/07/21/remarks-president-signing-executive-order-lgbt-workplace-discrimination.

[21] Jane S Schacter, ‘SCOTUS Ruling Affirms LBGT Parental Rights: VL v EL Creates Important Protection for Families’ (Stanford Lawyer Magazine, 9 March 2016) see https://law.stanford.edu/2016/03/09/scotus-ruling-affirms-lgbt-parental-rights-vl-v-el-creates-important-protections-for-families.

[22] In Henry v Wymyslo 1:14-CV 00129 (SD, Ohio) 2015, the plaintiffs sought declaratory and injunctive relief under 42 USC 1983, claiming that Ohio’s constitutional ban on same-sex marriage and the manner in which that ban has been applied were unconstitutional under the Due Process and Fair Faith and Credit Clauses of the US Constitution.

[23] Robert A Dahl, ‘Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker’, 6 J Pub L 279, 285 (1957), see http://heinonline.org/HOL/LandingPage?handle=hein.journals/emlj6&div=20&id.

[24] Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (Farrar, Straus and Giroux, 2009) p 16.

[25] Ibid. In the author’s view the Court’s decisions are an expression of a ‘higher power’, which is deemed to be the US public.

[26] John Ferejohn and Pasquale Pasquino, ‘The Countermajoritarian Opportunity’ (2010) 13 University of Pennsylvania Journal of Constitutional Law 353.

[27] This argument is presented in John Ferejohn and Charles Shipan, ‘Congressional Influence on Bureaucracy’ (1990) 6 Journal of Law, Economics & Organisation 1 (1990), available at www.jstor.org/stable/764979. It is developed in a historical setting in Jenna Bednar, William N Eskridge Jr and John Ferejohn, ‘A Political Theory of Federalism’ (1999) Washington, DC, World Bank, available at http://documents.worldbank.org/curated/en/900271468761423846/A-political-theory-of-federalism.

[28] Ibid, Ferejohn and Pasquino, 356.

[29] See n26 above.

[30] Robert C Post,and Reva B Siegel, ‘Roe Rage: Democratic Constitutionalism and Backlash’ (2007) Faculty Scholarship Series, 169, available at http://digitalcommons.law.yale.edu/fss_papers/169.

[31] Ibid. The term ‘democratic constitutionalism’ refers to the understandings and practices of rights that have arisen historically against the background of cultural controversy. The author views the interpretive disagreement as a ‘normal condition’ for the development of constitutional law.