Signed and Sealed
The foreclosure mess aside, making states recognize one another's documents is a good idea.
The housing industry has sunk into a morass of paperwork problems and missing documents. Some banks won't even foreclose houses anymore. Into this chaos comes President's Obama's pocket veto of a bill that might have sped up foreclosures by making it easier to verify mortgage documents in court. Called the Interstate Recognition of Notarizations Act of 2009, the bill would have forced state courts to give equal treatment to notarized documents—including mortgage documents—that were notarized out of state.
Apparently, that prospect was scary enough for the president to use his second veto ever to stop it from becoming law. And yet shoddy out-of-state documents have bedeviled America since the time of the Constitution—which tried to solve the problem, even if it didn't succeed.
In the founding era, back before typewriters and photocopiers, legal documents—like all other documents—were written by hand. Proving that those documents were authentic was a constant concern. In one early case, copies of Massachusetts statutes were introduced in court as "printed copies of the acts, with certain erasures and interlineations in writing." How could the court know that none of the handwritten "erasures and interlineations" was fake? As the defense lawyer complained,
These papers are, evidently, from the face of them, torn from some printed book. … These printed papers are not connected directly with the seal. The seal is on a distinct piece of white paper, and by a single thread these pretended acts of the legislature are connected with that. Some essential parts are again connected with those through which the thread passes by wafers. Does the seal prove these? If a thread or wafer were now to be used to connect either, or any of these sheets, with a newspaper, it would be equally well authenticated.
To Justice Joseph Story, it was a "matter of most serious regret, [that] an exemplification so loose and irregular, should have been permitted to have found its way into any Court of justice."
Authenticating in-state documents was hard enough. But the problem was even worse when it came to documents from out of state—and that's where the Constitution came in. Before the Revolution, documents from another American colony were just as "foreign" as documents from across the ocean. Drafting up a fake decision from another colony's court could be as easy as writing it out—and if nobody knew what the Great Seal of South Carolina looked like, the only way to find out was to get on a horse. To avoid fakes, the colonies placed strict limits on when courts would give their trust—their "faith and credit"—to a different government's seal. But those limits came with a cost. Anyone sued in one colony could flee to another, which might not recognize the out-of-state judgment as real. Massachusetts complained in 1774 that because of the legal uncertainty surrounding out-of-state judgments, "honest creditors are often defrauded … by negligent and evil minded debtors." (Today, we call those debtors "struggling homeowners.")
Stephen Sachs is a visiting research scholar at Duke Law School and anassociate at Mayer Brown LLP.
Painting of Justice Joseph Story by George P.A. Healy courtesy the Collection of the Supreme Court of the United States.