Individual rights - Other protections, including the privileges and immunities clauses, the contracts clause, unconstitutional conditions, bills of attainder, and ex post facto laws

Learning Outcomes

This article examines specific constitutional limitations on governmental power affecting individual rights, separate from Due Process and Equal Protection. After reading this article, you will understand the scope and application of the Privileges and Immunities Clauses (Article IV and Fourteenth Amendment), the Contracts Clause, the doctrine of unconstitutional conditions, and the prohibitions against Bills of Attainder and Ex Post Facto laws. This knowledge is essential for analyzing MBE questions involving these distinct constitutional protections.

MBE Syllabus

For the MBE, you are required to understand several additional protections for individual rights beyond the main Due Process and Equal Protection analyses. You should be prepared to:

• Distinguish between the Privileges and Immunities Clause of Article IV and the Privileges or Immunities Clause of the Fourteenth Amendment.
• Analyze state discrimination against out-of-state citizens under the Article IV Privileges and Immunities Clause, focusing on fundamental rights and the substantial justification test.
• Recognize the limited scope of the Fourteenth Amendment Privileges or Immunities Clause.
• Apply the Contracts Clause analysis to state laws impairing existing contractual obligations, distinguishing between private and public contracts.
• Identify situations where the government imposes unconstitutional conditions on benefits or privileges.
• Recognize Bills of Attainder as legislative acts inflicting punishment without judicial trial.
• Identify Ex Post Facto laws as retroactive criminal legislation that prejudices a defendant.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. State A enacts a law requiring all commercial shrimp fishermen operating in state waters to pay a 2,500annuallicensefee.FishermenresidinginStateApayonly2,500 annual license fee. Fishermen residing in State A pay only 2,500annuallicensefee.FishermenresidinginStateApayonly100. A fisherman residing in State B challenges the law. Which constitutional provision offers the strongest basis for his challenge?
   1. The Equal Protection Clause of the Fourteenth Amendment
   2. The Commerce Clause
   3. The Privileges and Immunities Clause of Article IV
   4. The Privileges or Immunities Clause of the Fourteenth Amendment
2. Which of the following legislative acts would most likely constitute an unconstitutional Bill of Attainder?
   1. A state law increasing the mandatory minimum sentence for arson, applied to defendants whose trials have not yet concluded.
   2. A federal statute imposing a fine on all members of the "Freedom Now Party" for advocating civil disobedience.
   3. A city ordinance retroactively imposing civil liability on landlords who failed to install required smoke detectors.
   4. A state constitutional amendment prohibiting anyone convicted of embezzlement from ever holding public office.
3. A state legislature passes a law retroactively increasing the statute of limitations for misdemeanor theft from one year to three years. This allows the state to prosecute Defendant for a theft committed 18 months ago, which was previously time-barred. This law likely violates:
   1. The Contracts Clause
   2. The Double Jeopardy Clause
   3. The Ex Post Facto Clause
   4. The Bill of Attainder Clause

Introduction

Beyond the broad protections of Due Process and Equal Protection, the Constitution provides several other specific limitations on federal and state power that safeguard individual rights. These include the Privileges and Immunities Clauses, the Contracts Clause, the prohibition on unconstitutional conditions, and the bars against Bills of Attainder and Ex Post Facto laws. Understanding the distinct scope and application of each is essential for the MBE.

Privileges and Immunities Clauses

There are two Privileges and Immunities Clauses in the Constitution, and they protect different rights against different governments. Distinguishing them is key.

Article IV Privileges and Immunities Clause

This clause (Article IV, Section 2) provides that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

Key Term: Privileges and Immunities Clause (Article IV) Prohibits states from discriminating against citizens of other states regarding fundamental rights, primarily commercial activities and civil liberties.

• Scope: It prevents a state from discriminating against out-of-state citizens (not corporations or aliens) regarding fundamental rights.
• Fundamental Rights: Primarily relates to important commercial activities (like pursuing one's livelihood, owning property) and civil liberties (access to courts). It does not apply to all forms of discrimination (e.g., higher fees for recreational licenses for out-of-staters are permissible).
• Test: State laws discriminating against out-of-state citizens regarding fundamental rights violate the clause unless the state shows:
  • A substantial justification for the different treatment (i.e., the nonresidents are a peculiar source of the evil the law seeks to remedy); AND
  • There are no less restrictive means to solve the problem.
• Relationship to Dormant Commerce Clause: Both clauses limit state interference with interstate relations. The P&I Clause protects citizens (not corporations) from discrimination concerning fundamental rights/livelihood, while the Dormant Commerce Clause protects interstate commerce broadly from discrimination or undue burdens, regardless of who is burdened (citizen or corporation). The P&I clause requires substantial justification for discrimination; the DCC generally invalidates discriminatory laws unless necessary for an important non-economic interest or the state is a market participant.

Worked Example 1.1

State Green requires individuals operating tour guide businesses within its borders to obtain a license. The annual fee is $50 for state residents but$500 for non-residents. Guide, a resident of neighboring State Blue, wishes to operate tours in State Green but challenges the fee difference. Is the law constitutional?

Answer: Likely unconstitutional under the Article IV Privileges and Immunities Clause. Operating a tour guide business is a commercial activity related to pursuing a livelihood, which is considered a fundamental right under this clause. The state discriminates against out-of-state citizens based on residency. The state would need to show a substantial justification for this discrimination (e.g., that non-residents uniquely cause a problem the fee addresses) and that there are no less restrictive means. A tenfold fee difference is unlikely to meet this strict test.

Fourteenth Amendment Privileges or Immunities Clause

This clause states: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

Key Term: Privileges or Immunities Clause (14th Amendment) Protects attributes of national citizenship (e.g., right to travel interstate, vote for federal officers). Has an extremely narrow scope.

• Scope: Interpreted very narrowly by the Supreme Court since the Slaughter-House Cases (1873). It protects only rights attributable to being a citizen of the United States, not rights related to state citizenship.
• Protected Rights: Include the right to interstate travel, the right to petition Congress, the right to vote for federal officers, and the right to enter public lands. It does not incorporate the Bill of Rights against the states (the Due Process Clause does this).
• MBE Relevance: Rarely the correct answer on the MBE. If a state action seems to violate a fundamental right, the Due Process or Equal Protection Clause is almost always the stronger basis for a challenge.

Contracts Clause

Article I, Section 10 provides: "No State shall . . . pass any . . . Law impairing the Obligation of Contracts."

Key Term: Contracts Clause Limits the ability of states (not the federal government) to enact laws that retroactively and substantially impair existing contract rights.

• Applicability: Applies only to state or local laws that interfere with existing contracts (both private and public/governmental contracts). It does not apply to the federal government (though egregious federal interference might violate Due Process). It does not apply to future contracts.
• Level of Scrutiny: Depends on whether the impaired contract is private or public.
  • Private Contracts: State legislation that substantially impairs an existing private contract is invalid unless the law:
    • Serves an important and legitimate public interest; AND
    • Is reasonably and narrowly tailored means of promoting that interest.
  • Public Contracts: Legislation impairing contracts to which the state is a party receives stricter scrutiny, especially if the legislation reduces the state's own contractual burdens. The state must show the law is reasonable and necessary to serve an important public purpose. States cannot contract away essential sovereign powers (like police power or eminent domain).

Worked Example 1.2

Facing an unexpected budget crisis, State Gold passes a law reducing the interest rate payable on all outstanding state bonds from 5% to 3%, effective immediately. A bondholder challenges the law. Is the challenge likely to succeed?

Answer: Yes. The state law substantially impairs the obligation of an existing public contract (the state bond). Because the state is a party, the law receives stricter scrutiny. While managing a budget crisis is an important interest, retroactively reducing the agreed-upon interest rate is likely not seen as reasonable and necessary, particularly as it benefits the state itself financially. The state likely had less drastic means available. The law violates the Contracts Clause.

Unconstitutional Conditions Doctrine

The government cannot condition a benefit or privilege on a requirement that the recipient forego a constitutional right.

Key Term: Unconstitutional Conditions Doctrine Principle that the government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government has no obligation to grant the benefit in the first place.

• Scope: Limits the government's ability to use its power to grant benefits (like government employment, tax exemptions, or public housing) to indirectly pressure individuals into waiving constitutional rights (like free speech, religion, etc.).

• Test: The condition is unconstitutional if:

  • It infringes upon a constitutional right; AND
  • There is no germaneness or nexus between the condition and the purpose of the government benefit or program. The condition must be reasonably related to the benefit being conferred.

• Example: A state cannot require recipients of unemployment benefits to attend religious services (violates Free Exercise/Establishment Clause). A city cannot deny parade permits to groups based on the content of their speech if permits are generally available (violates Free Speech).

Bills of Attainder

The Constitution prohibits both federal (Article I, Section 9) and state (Article I, Section 10) governments from passing Bills of Attainder.

Key Term: Bill of Attainder A legislative act that inflicts punishment (criminal or civil penalties like exclusion from employment/benefits) on named individuals or easily ascertainable groups without a judicial trial.

• Elements: A law is a Bill of Attainder if it:
  • Targets specific, named individuals or easily identifiable groups.
  • Imposes punishment (not merely regulation).
  • Does so without a judicial trial.
• Punishment vs. Regulation: Key distinction. Punishment includes traditional criminal penalties, but also civil disabilities like barring individuals/groups from employment or benefits based on past conduct or affiliation. If the law furthers non-punitive goals, it's less likely to be a Bill of Attainder.

Ex Post Facto Laws

The Constitution prohibits both federal (Article I, Section 9) and state (Article I, Section 10) governments from passing Ex Post Facto laws.

Key Term: Ex Post Facto Law A law that retroactively alters criminal law in a substantially prejudicial way.

• Scope: Applies only to criminal laws, not civil laws.
• Prohibited Types: An Ex Post Facto law does one of the following retroactively:
  • Makes an act criminal that was innocent when done.
  • Increases the punishment for a crime after it was committed.
  • Reduces the amount or changes the kind of evidence required to convict after the crime was committed.
• Procedural Changes: Changes in procedural rules (e.g., venue, court rules) are generally not Ex Post Facto unless they substantially affect a defendant's rights. Changes that simply disadvantage the defendant (like allowing different types of evidence) are usually permissible if they don't alter the definition of the crime or increase punishment.

Summary

This article covered several specific constitutional protections. The Article IV Privileges and Immunities Clause prevents state discrimination against out-of-state citizens regarding fundamental rights, requiring substantial justification. The Fourteenth Amendment P or I Clause has minimal effect. The Contracts Clause limits state impairment of existing contracts, with stricter review for public contracts. The government cannot condition benefits on the waiver of constitutional rights (unconstitutional conditions). Bills of Attainder (legislative punishment without trial) and Ex Post Facto laws (retroactive criminal laws) are prohibited for both state and federal governments.

Key Point Checklist

This article has covered the following key knowledge points:

• Distinction between Art IV P&I (discrimination against out-of-staters re: fundamental rights) and 14th Amend P or I (narrow rights of national citizenship).
• Art IV P&I requires substantial justification for discrimination against out-of-state citizens; protects citizens, not corporations/aliens.
• Contracts Clause applies only to states, limits retroactive impairment of existing contracts, stricter review for public contracts.
• Unconstitutional Conditions doctrine prevents conditioning government benefits on waiver of constitutional rights without a nexus.
• Bills of Attainder are legislative acts inflicting punishment on specific individuals/groups without trial.
• Ex Post Facto laws apply only to criminal statutes and retroactively prejudice defendants (make act criminal, increase punishment, reduce evidence needed).

Key Terms and Concepts

• Privileges and Immunities Clause (Article IV)
• Privileges or Immunities Clause (14th Amendment)
• Contracts Clause
• Unconstitutional Conditions Doctrine
• Bill of Attainder
• Ex Post Facto Law