Individual rights - Other rights and interests

Learning Outcomes

After reading this article, you will be able to identify and apply the main constitutional protections for individual rights beyond due process and equal protection. You will understand the scope and limits of the Privileges and Immunities Clauses, the Contracts Clause, the Takings Clause, and rules on retroactive legislation, and recognize how these doctrines are tested on the MBE.

MBE Syllabus

For MBE, you are required to understand the constitutional provisions that protect individual rights beyond due process and equal protection. This includes:

• The scope and application of the Privileges and Immunities Clauses (Article IV and Fourteenth Amendment).
• The Contracts Clause and its limits on state interference with existing contracts.
• The Takings Clause and the requirement for just compensation.
• Prohibitions on bills of attainder and ex post facto laws.
• The prohibition on laws impairing the obligation of contracts.
• The distinction between state and federal powers regarding individual rights.

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. Which clause prohibits a state from denying citizens of other states the right to pursue a livelihood within its borders?
   1. Privileges or Immunities Clause (14th Amendment)
   2. Privileges and Immunities Clause (Article IV)
   3. Due Process Clause
   4. Equal Protection Clause
2. A state passes a law retroactively increasing the penalty for a crime committed last year. Which constitutional provision is most directly violated?
   1. Takings Clause
   2. Bill of Attainder Clause
   3. Ex Post Facto Clause
   4. Contracts Clause
3. Which of the following is required for a regulation to be a “taking” under the Fifth Amendment?
   1. The government must physically occupy the property.
   2. The regulation must deprive the owner of all economically viable use.
   3. The regulation must be for a public purpose only.
   4. The government must pay compensation for any decrease in value.
4. A state passes a law that impairs the obligations of an existing private contract. What is the correct standard of review?
   1. Strict scrutiny
   2. Intermediate scrutiny
   3. Reasonableness balancing test
   4. Per se invalidity

Introduction

This article covers key constitutional protections for individual rights beyond due process and equal protection. These include the Privileges and Immunities Clauses, the Contracts Clause, the Takings Clause, and prohibitions on retroactive and punitive legislation. Understanding these doctrines is essential for answering MBE questions on individual rights—other rights and interests.

Privileges and Immunities Clauses

The Constitution contains two Privileges and Immunities Clauses:

• Article IV, Section 2 (Comity Clause): Prevents states from discriminating against citizens of other states regarding fundamental rights.
• Fourteenth Amendment, Section 1: Protects rights of national citizenship against state interference.

Key Term: Privileges and Immunities Clause (Article IV) Prohibits states from discriminating against citizens of other states with respect to fundamental rights such as pursuing a livelihood, owning property, or court access.

Key Term: Privileges or Immunities Clause (14th Amendment) Protects rights of national citizenship (e.g., interstate travel, access to federal courts) from state infringement, but is rarely a successful basis for a claim.

Contracts Clause

The Contracts Clause (Article I, Section 10) bars states from passing laws that impair the obligations of existing contracts. It does not apply to the federal government.

Key Term: Contracts Clause Prohibits states from enacting laws that substantially impair existing private contracts unless the law is reasonable and necessary to serve an important public interest.

Takings Clause

The Fifth Amendment Takings Clause, applied to the states through the Fourteenth Amendment, prohibits the government from taking private property for public use without just compensation.

Key Term: Takings Clause Requires government to provide just compensation when it takes private property for public use, including both physical appropriation and regulations that deprive the owner of all economically viable use.

Retroactive Legislation: Ex Post Facto Laws and Bills of Attainder

The Constitution prohibits both federal and state governments from passing ex post facto laws and bills of attainder.

Key Term: Ex Post Facto Law A law that retroactively criminalizes conduct, increases punishment, or reduces the evidence required for conviction, prohibited by Article I, Sections 9 and 10.

Key Term: Bill of Attainder A legislative act that imposes punishment on a specific individual or group without a judicial trial, prohibited by Article I, Sections 9 and 10.

Other Prohibited Legislation

States are also barred from passing laws that:

• Deny full faith and credit to judgments of other states.
• Violate the Due Process or Equal Protection Clauses.
• Discriminate against interstate commerce (see Dormant Commerce Clause, covered elsewhere).

Application and Examples

Worked Example 1.1

A state passes a law requiring all out-of-state lawyers to pay a $10,000 fee to practice law, while in-state lawyers pay only$500. Is this constitutional?

Answer: No. The Privileges and Immunities Clause (Article IV) prohibits states from discriminating against citizens of other states regarding fundamental rights, such as pursuing a profession, unless the state shows a substantial reason and no less restrictive means.

Worked Example 1.2

A state enacts a law that retroactively increases the penalty for a crime committed before the law was passed. Is this law valid?

Answer: No. The Ex Post Facto Clause prohibits laws that retroactively increase criminal penalties or change the rules of evidence to make conviction easier.

Worked Example 1.3

A city rezones land, prohibiting all construction on a parcel, making it worthless. The owner sues for compensation. What result?

Answer: The regulation is a taking if it deprives the owner of all economically viable use. The city must pay just compensation under the Takings Clause.

Exam Warning

The Privileges or Immunities Clause of the Fourteenth Amendment is almost never the correct answer on the MBE. Focus on the Article IV Privileges and Immunities Clause for discrimination against out-of-state citizens.

Revision Tip

For Contracts Clause questions, always check if the contract existed before the law was passed. The clause does not protect future contracts.

Summary

• The Privileges and Immunities Clauses protect against state discrimination but are rarely a successful basis for a claim.
• The Contracts Clause limits state interference with existing contracts but allows reasonable and necessary regulation.
• The Takings Clause requires compensation for government appropriation or regulation that destroys all economic use.
• Ex post facto laws and bills of attainder are strictly prohibited.

Key Point Checklist

This article has covered the following key knowledge points:

• Article IV Privileges and Immunities Clause bars state discrimination against out-of-state citizens regarding fundamental rights.
• Fourteenth Amendment Privileges or Immunities Clause protects national citizenship but is rarely a successful claim.
• The Contracts Clause prohibits states from impairing existing contracts unless reasonable and necessary for an important public purpose.
• The Takings Clause requires just compensation for government takings, including regulations that eliminate all economic value.
• Ex post facto laws and bills of attainder are unconstitutional.
• Retroactive criminal laws and legislative punishments without trial are forbidden.

Key Terms and Concepts

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