Individual rights - Other rights and interests

Learning Outcomes

This article explains key individual-rights doctrines governing other rights and interests on the MBE, including:

• How to distinguish the Article IV and Fourteenth Amendment Privileges and Immunities Clauses, identify which one is implicated on a fact pattern, and reject common distractors.
• How the Contracts Clause limits state interference with existing public and private contracts, including the substantial-impairment test and different scrutiny for public contracts.
• How to structure a Takings Clause analysis, separating property, taking, and public-use/just-compensation questions, and applying rules for physical takings, regulatory takings, and exactions.
• How constitutional bans on ex post facto laws and bills of attainder constrain retroactive or targeted punishment, and how these doctrines differ from ordinary due process review of civil retroactivity.
• How Full Faith and Credit and the unconstitutional conditions doctrine operate, and how they interact with individual-rights issues such as speech, property, and benefits.
• How to choose the most specific constitutional provision—rather than defaulting to due process or equal protection—when multiple clauses seem relevant.
• How to separate these doctrines from nearby concepts like the Dormant Commerce Clause, double jeopardy, and substantive due process in multi-issue, bar-style questions.

MBE Syllabus

For the MBE, you are required to understand constitutional protections for individual rights beyond due process and equal protection, with a focus on the following syllabus points:

• Privileges and Immunities Clause of Article IV (state citizenship) and Privileges or Immunities Clause of the Fourteenth Amendment (national citizenship).
• Contracts Clause limits on state interference with existing private and public contracts.
• Takings Clause: “public use,” “just compensation,” physical versus regulatory takings, and development exactions.
• Prohibitions on ex post facto laws and bills of attainder at both federal and state level.
• Other retroactivity limits via due process (e.g., retroactive civil legislation) and the unconstitutional conditions doctrine.
• Full Faith and Credit obligations concerning sister‑state judgments and their enforcement.
• How these doctrines interact with state police power, federal preemption, and the Dormant Commerce Clause.

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 most clearly a “taking” under the Fifth Amendment?
   1. Any regulation that decreases the value of property
   2. A permanent government occupation of a portion of the owner’s land
   3. A zoning rule that reduces the most profitable use of land but leaves viable alternatives
   4. A temporary building moratorium while a city rewrites its zoning code
4. A state passes a law that substantially 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 tied to an important public purpose
   4. Per se invalidity

Introduction

Individual‑rights questions on the MBE are not limited to due process and equal protection. Several other constitutional provisions protect private interests against particular types of government action. These provisions are less intuitive than the “big three” (due process, equal protection, and the First Amendment), so they are often used for subtle exam traps.

The exam regularly tests:

• Privileges and Immunities (state and national).
• The Contracts Clause.
• The Takings Clause.
• Prohibitions on ex post facto laws and bills of attainder.
• Related concepts such as Full Faith and Credit and unconstitutional conditions.

The key to these questions is spotting which provision is actually implicated, and then applying the correct test and limitations. Many fact patterns can be analyzed under more than one doctrine; you must choose the best doctrinal fit.

Key Term: Privileges and Immunities Clause (Article IV)
Prohibits states from discriminating against citizens of other states with respect to fundamental rights related to a unified national economy, such as pursuing a common calling, owning property, or accessing courts, unless strict conditions are met.

Key Term: Privileges or Immunities Clause (14th Amendment)
Protects rights of national citizenship (e.g., interstate travel, access to federal institutions) against state interference. It has very limited modern application and is rarely the correct doctrinal basis on the MBE.

A recurring MBE theme is distinguishing between these similarly named provisions and knowing when to use each, rather than defaulting to due process or equal protection.

How these “other rights” fit into the big picture

Almost every individual‑rights question can be organized around four basic questions:

• Who is acting? (Congress, a state legislature, a city, a court?)
• What is being regulated? (Persons, contracts, property, punishment, judgments, benefits?)
• When is the regulation operating? (Prospectively or retroactively?)
• How is the regulation structured? (Discriminatory vs neutral; targeting a named person vs categories; permanent vs temporary; physical vs regulatory?)

Once you answer those, you can usually match the fact pattern to the most specific constitutional doctrine:

• Discrimination against out‑of‑state citizens regarding economic life → Article IV Privileges and Immunities.
• State interference with existing contracts → Contracts Clause.
• Government appropriation or severe restriction of property use → Takings Clause.
• Retroactive criminal punishment → Ex Post Facto Clause.
• Legislative punishment of identified individuals → Bill of Attainder.
• Enforcement of sister‑state judgments → Full Faith and Credit.
• Government conditioning benefits on giving up a constitutional right → Unconstitutional conditions.

Because these doctrines are targeted, they usually displace more general theories. For example, if the state is retroactively increasing criminal penalties, you answer under the Ex Post Facto Clause, not substantive due process. If a city is forcing a landowner to allow public access across her land, think Takings before due process or equal protection.

A useful way to think about hierarchy is:

• Use the specific clause if it clearly fits (Ex Post Facto, Contracts, Takings, Bills of Attainder, Article IV P&I).
• Only if no specific clause works do you fall back on due process or equal protection.

Revision tip: When you see a state law that seems unfair or burdensome, ask: “Is there a more specific constitutional clause directly on point?” If yes, analyze under that clause instead of reaching for due process or equal protection.

The discussion below develops each of these doctrines and shows how they appear in MBE‑style fact patterns, with special attention to common traps and cross‑doctrine distinctions.

Privileges and Immunities Clauses

The Constitution contains two different Privileges and Immunities provisions:

• Article IV, Section 2: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
• Fourteenth Amendment, Section 1: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.”

They serve very different roles; mixing them up is a classic exam distractor.

Article IV Privileges and Immunities (state citizenship)

This clause is a limit on state discrimination against out‑of‑state citizens.

It is a structural provision promoting a unified national economy. It primarily protects the ability of citizens to earn a living and use courts in other states on an equal footing with residents.

On the MBE, the best way to use this clause is as a three‑step checklist.

Step 1 – Is the state discriminating against out‑of‑state citizens

• The clause applies only when a state (or local government) treats its own citizens better than citizens of other states.
• The discrimination must be based on state citizenship or permanent residency, not simply temporary presence, and not merely residence in a particular city or county.
  • A rule favoring residents of one city over another city does not implicate Article IV; that will be an equal protection or local‑politics issue, not a Privileges and Immunities problem.
• Corporations and aliens are not “citizens” for this provision. If a corporation is the plaintiff, this clause is not the right answer; think Dormant Commerce Clause instead.

Typical exam patterns:

• Bar‑admission rules, professional licensing, or employment preferences that distinguish between in‑state and out‑of‑state residents.
• Different court‑access rules or filing fees for out‑of‑state litigants versus in‑state litigants.
• Tax advantages or exemptions reserved for state residents who engage in a particular trade.
• Residency requirements or surcharges that make it significantly more difficult for out‑of‑state citizens to practice a profession in the state.

If a law distinguishes only between residents and nonresidents of a particular locality within the state (e.g., county residents vs other in‑state residents), Article IV does not apply; turn to equal protection.

Also note that the state actor can be a city, county, or state agency. For Article IV purposes, “state” includes its political subdivisions.

Step 2 – Is the affected interest “fundamental” to the functioning of the national system

Protected interests include:

• Pursuing a livelihood or common calling (e.g., practicing law or medicine, working as a commercial fisherman, contractor, pharmacist, or engineer).
• Owning, leasing, and transferring property.
• Access to state courts (e.g., filing civil suits, defending criminal charges) on terms comparable to residents.
• Certain key privileges connected with earning a living, such as eligibility for professional licenses that enable work in a national market.

Not protected (usually):

• Recreational activities (e.g., hunting elk for sport, recreational fishing, discounted state park access).
• Purely local subsidies or benefits not closely tied to economic opportunity (e.g., recreational licenses, enjoyment of local amenities, reduced camping fees).
• Matters that are not important to overall national or the functioning of the national economy, such as in‑state tuition discounts at state universities, so long as out‑of‑state citizens are still able to obtain an education somewhere.

If the law burdens only recreation—such as charging nonresidents more for recreational hunting licenses—Article IV Privileges and Immunities typically does not apply. That scenario is more often analyzed under the Dormant Commerce Clause (if it affects interstate commerce at all) or simply upheld as a reasonable distinction.

Note that the right must be important at the national level, not merely convenient. A modest surcharge on out‑of‑state camping permits is unlikely to trigger Article IV scrutiny.

Step 3 – If so, can the state justify the discrimination

State discrimination is allowed only if:

• Nonresidents are a “peculiar source of the evil” the state is addressing (they are a special source of the problem); and
• The discrimination is substantially related to that problem; and
• There is no less restrictive, non‑discriminatory alternative available.

This is a demanding test—functionally similar to a form of heightened scrutiny. States usually lose.

Examples where states have a stronger argument:

• Limiting nonresident commercial fishing where the state shows that large numbers of nonresident commercial operators have been depleting a fragile resource and that less discriminatory regulations (e.g., quotas or seasons applied equally to all) would not work.
• Charging a small extra fee to nonresidents where the state demonstrates that enforcement or conservation costs fall disproportionately on resident taxpayers and the extra fee is reasonably calibrated to that added burden.

But the Court is skeptical of “economic protectionism”—laws whose real function is to favor in‑state economic actors over outsiders. When the primary effect is to protect local businesses or workers from competition, the law is likely invalid.

Key Term: Market Participant Doctrine
When a state acts as a buyer or seller in the market (for example, operating a state‑owned cement plant), it may favor its own citizens in that proprietary capacity without violating the Dormant Commerce Clause. However, this doctrine does not create an exception to Article IV Privileges and Immunities when individuals’ fundamental economic rights are at stake.

If a state acting as a market participant imposes a condition that effectively bars out‑of‑state citizens from practicing a profession or earning a living, the Article IV analysis still applies.

Typical MBE traps and distinctions

Article IV Privileges and Immunities vs Dormant Commerce Clause:

• Article IV Privileges and Immunities:

  • Protects out‑of‑state natural persons (never corporations or aliens).
  • Requires discrimination regarding fundamental economic activity or access to courts.
  • Remedy is that the state must treat citizens of other states equally with its own.

• Dormant Commerce Clause:

  • Protects interstate commerce, including corporate actors.
  • Applies even if no individual citizen is singled out.
  • Analysis focuses on whether the law is economic protectionism or imposes an undue burden on interstate commerce.
  • A state may sometimes favor its own citizens as a market participant, which defeats a Dormant Commerce Clause challenge but does not affect Article IV analysis.

Exam warning: If a state‑owned business gives price breaks to in‑state customers, a corporation challenging that policy must rely on the Dormant Commerce Clause and the market‑participant doctrine, not on Article IV. If an individual doctor challenges a residency requirement to practice in the state, Article IV Privileges and Immunities is the more precise doctrine and the market‑participant exception is irrelevant.

When both doctrines could apply, ask:

• Who is suing? If a natural person complaining that she cannot pursue a livelihood, Article IV Privileges and Immunities is usually the better doctrinal fit.
• Is the law framed in terms of citizenship/residency or in terms of products/transactions? Citizenship → Article IV; product or transactional regulation → Dormant Commerce Clause.

Also keep in mind:

• If the state discriminates against its own residents (e.g., some residents get a benefit, others do not), Article IV is not implicated at all; use equal protection analysis.
• If the state discriminates against aliens (non‑citizens), Article IV does not apply; you may need equal protection or specific immigration‑related doctrines.

Fourteenth Amendment Privileges or Immunities (national citizenship)

Modern doctrine gives this clause a very narrow role. After the Slaughter‑House Cases, most rights are protected under due process or equal protection, not this clause.

It protects certain rights of national citizenship, most notably:

• The right to travel between states and be treated as a welcome visitor.
• The right of newly arrived citizens to be treated equally with long‑term citizens regarding basic rights (e.g., certain welfare benefits, access to courts).
• Access to federal institutions and the right to vote in federal elections.
• Access to federal navigable waters and to move within the United States.

In practice, on the MBE:

• Challenges to burdens on interstate travel are usually analyzed under equal protection (e.g., durational residency requirements for welfare or voting) or substantive due process, not under this clause.
• When answer choices list “Privileges or Immunities Clause of the Fourteenth Amendment,” it is almost always a distractor unless the fact pattern is explicitly about the narrow category of national‑citizenship rights.

For example, a state rule preventing new residents from voting in federal elections for one year would raise serious national‑citizenship concerns. But the Court generally frames such cases as involving the fundamental right to travel and vote, triggering strict scrutiny via equal protection. The 14th Amendment Privileges or Immunities Clause may be mentioned in the case law, but it is rarely the primary bar‑exam answer.

Exam tip: If you see a law discriminating between new and old state residents in access to benefits (e.g., a one‑year residency requirement for welfare), expect a right to travel / equal protection analysis, not a 14th Amendment Privileges or Immunities answer—even though some Supreme Court cases mention it.

Contracts Clause

Key Term: Contracts Clause
Article I, Section 10 provides that no state shall pass any law impairing the obligation of contracts. It restricts state—not federal—laws that substantially impair existing contractual relationships.

Threshold concepts

• It applies only to states, not the federal government.

  • Federal legislation interfering with contracts is evaluated under due process (and sometimes takings), not under the Contracts Clause.

• It applies only to existing contracts.

  • Laws regulating future contracts are permissible and are analyzed under due process or equal protection instead.
  • A law affecting contracts formed after its enactment is not “retroactive” for Contracts Clause purposes, even if it is harsh.

• It applies only to “laws”—statutes, ordinances, constitutional provisions. Executive actions or judicial decisions are generally addressed under due process rather than the Contracts Clause (though a judicial change in contract rules can still be relevant under “reasonable expectations”).

• It applies to both private and public contracts:

  • Private contract: contract between private parties (e.g., lender and borrower, landlord and tenant).
  • Public contract: state or local government is itself a party (e.g., state pension contracts, long‑term supply contracts, state bonds).

On the MBE, think of the Contracts Clause as a structured three‑question inquiry.

Step 1 – Is there state legislation impairing an existing contract

Ask:

• Is there a state or local law, not just a one‑off government decision?
• Did the contract in question already exist when the law was passed?

If no, the Contracts Clause is not the right doctrine; consider due process, takings, or equal protection instead.

Common pitfalls:

• A city council’s cancellation of a single contract by resolution is still “law” for Contracts Clause purposes.
• A state court’s interpretation of a contract, even if unexpected, is usually not treated as “impairing” the contract under the Contracts Clause; this is more often a due process or state‑law issue.

Step 2 – Is there a substantial impairment

Not every change in the contract environment violates the Contracts Clause. The impairment must be substantial.

Factors suggesting substantial impairment:

• The law rewrites key terms (e.g., interest rate, duration, payment obligations).
• The law eliminates or significantly limits enforcement mechanisms (e.g., barring foreclosure, cancelling remedies).
• The law undermines the parties’ reasonable expectations at the time of contracting (for example, abrogating a long‑standing rule the parties relied on).
• The law affects a central element of the bargain, not a minor or procedural aspect.

Factors cutting against substantial impairment:

• The contract is part of an already heavily regulated field, so further regulation was foreseeable (e.g., price controls in a heavily regulated utility or insurance industry).
• The change is procedural or remedial, not affecting the core bargain, and leaves a meaningful remedy.
• The law modestly adjusts rights or remedies in a way consistent with background principles of contract law (e.g., adjusting statutes of limitations reasonably).

A modest increase in court filing fees that affects all plaintiffs, or a general change in the statute of limitations for breach of contract, is unlikely to be treated as a substantial impairment even though it may affect enforcement.

Step 3 – If so, is the impairment justified

The standard differs depending on whether the state is regulating private contracts or impairing its own contracts.

Private contracts

If there is a substantial impairment of a contract between private parties, the law is valid if:

• It serves an important and legitimate public purpose, such as:
  • Responding to a broad economic emergency (e.g., Depression‑era mortgage moratoria).
  • Protecting consumer welfare or health and safety (e.g., adjusting remedies in the wake of a public health crisis).
  • Remedying a widespread market failure or exploitation (e.g., preventing predatory lending).
• And the impairment is reasonable and appropriate (often described as “reasonable and necessary”) to achieve that public purpose.

Courts are generally deferential here, especially when the legislation addresses a broad social or economic problem rather than singling out a narrow group.

Examples often upheld:

• Temporary foreclosure moratoria during severe economic crises, where lenders retain eventual rights to payment and foreclosure.
• Rent‑control schemes that moderately cap rent increases in a tight housing market.
• Adjustments to interest‑rate ceilings in the face of extreme inflation, where some alteration of existing loans is unavoidable.

Public contracts (state itself is a party)

When the state impairs its own contracts (e.g., state pensions, long‑term supply contracts with vendors), courts apply a more demanding review because the state is acting as both regulator and contracting party.

The state must show that:

• The impairment is reasonable and necessary to serve an important public purpose; and
• It is not simply an attempt to escape its own financial obligations when other less drastic options (such as tax increases, spending cuts elsewhere, or negotiated changes) are available.

Public‑contract impairments are more likely to be struck down, especially where:

• The law targets only one or a few state contracts rather than a broad, general program.
• The state’s financial difficulty is self‑inflicted or modest.
• Alternatives (like raising revenue, restructuring benefits prospectively, or adjusting other spending) were not seriously considered.

Exam warning: A statute that “saves money” by unilaterally cutting a particular group of state retirees’ vested pension benefits is extremely likely to violate the Contracts Clause. The state’s desire to balance its budget, standing alone, is not a sufficient reason to impair its own contracts when other tools exist.

Remember also:

• The Contracts Clause does not freeze state law forever. States retain their police power to regulate for health and safety, even if existing contracts are incidentally affected. For example, a state may impose new building safety codes that make performance of contracts more expensive; this is usually permissible because such regulations are considered part of the background risk of contracting.

Common exam traps

• A state reducing prospective benefits in a public employment program usually does not violate the Contracts Clause if employees have not yet vested rights; it may be a political issue, not a constitutional one.
• A statute that appears to target a narrow, disfavored group of contracts (e.g., only contracts with out‑of‑state vendors) can raise both Contracts Clause and equal protection problems; on the MBE, Contracts Clause is the more specific doctrine for the impairment itself.
• Do not confuse the Contracts Clause with ex post facto:
  • Contracts Clause → civil or economic contracts, state laws, existing contracts.
  • Ex Post Facto → criminal or penal laws only, both state and federal.
• Do not confuse the Contracts Clause with the Takings Clause. If a law abolishes a contract right entirely, you may see both doctrines discussed; but examiners usually expect the Contracts Clause when the focus is on changing obligations, and the Takings Clause when the focus is on removing property (including certain contract‑based property interests) outright.

Revision tip: For Contracts Clause questions, run this short checklist:

• Is there a state law (not federal)?
• Does it operate retroactively on contracts that already existed?
• Is there a substantial impairment?
• Is it a private contract (deferential review) or a public contract (stricter review)?

If the answer to the first two is “no,” the Contracts Clause is the wrong doctrine.

Takings Clause

Key Term: Takings Clause
The Fifth Amendment, applied to the states through the Fourteenth Amendment, provides that private property shall not be taken for public use without just compensation.

Every takings problem has three core issues:

• Private property – Is there protected property (real, personal, or certain intangible or future interests)?
• Taking – Has the government action gone far enough that it constitutes a taking, rather than a mere regulation?
• Public use and just compensation – If a taking has occurred, the government must provide compensation, and the taking must be for “public use.”

What counts as “private property”

The clause covers:

• Real property (land and structures).
• Personal property (e.g., cars, inventory, equipment, crops).
• Certain intangible interests, such as:
  • Recognized property‑type rights (e.g., some contract rights, trade secrets, leaseholds, easements, and profits).
  • Future interests, such as remainders and possibilities of reverter.
  • In modern cases, interests like patents or specific financial assets can sometimes be treated as property for takings purposes.

Key Term: Profit
A non‑possessory property interest that allows the holder to enter another’s land and remove something from it (for example, minerals, timber, or game). Profits are protected “property” for takings purposes; if government action extinguishes a profit, the holder may be entitled to a share of just compensation.

Government benefits (such as welfare payments, discretionary licenses, or regulatory subsidies) are typically not “property” for takings purposes, though due process may protect entitlements to such benefits.

A drop in market value alone generally is not enough. If a government program or facility drives down the value of your stock or land, that is not automatically a taking; it may be the ordinary consequence of regulation in a complex economy.

Public Use

Key Term: Public Use
Public use is interpreted broadly. A taking satisfies the “public use” requirement if it is rationally related to a conceivable public purpose, including economic development that transfers property to another private party.

Key points:

• “Public use” includes:
  • Roads, schools, parks, and other traditional public facilities.
  • Eliminating blight or environmental harms.
  • Economic redevelopment that increases tax revenues and jobs, even if the land ends up in the hands of another private party.
• Standard of review is extremely deferential: if the taking is rationally related to a legitimate public purpose, the “public use” prong is satisfied.

On the MBE, you will almost never be asked to invalidate a taking for lack of public use. Assume this prong is easily met unless the facts are extreme (e.g., a purely private transfer with no plausible public rationale at all).

Just Compensation

Key Term: Just Compensation
Generally measured by the fair market value of the property at the time of the taking. It is owed to all holders of compensable interests in the property (owners, lessees, holders of profits or easements).

Key points:

• Market value is determined objectively; the owner bears the loss of subjective value (e.g., sentimental attachment, unique personal use).
• All parties with legal property interests—including leaseholders, easement holders, and holders of profits—share the award according to their respective interests.
• Compensation is required regardless of whether the owner benefits from the project; special benefits may sometimes offset the award, but that level of detail is rarely tested.
• The Constitution does not require compensation for consequential damages such as moving costs, lost business goodwill, or diminished value to neighboring parcels, unless a statute provides it.

The timing of the “taking” for valuation purposes is the date the government action effectively appropriates or restricts the property interest, not necessarily the date of payment.

What counts as a Taking

The central exam question is nearly always: Has a taking occurred at all? If not, there is no right to compensation.

Key Term: Regulatory Taking
A government regulation that goes “too far” in restricting property use can be treated as a taking requiring compensation, even though title remains with the owner.

You can organize takings into four main categories.

1. Per se (automatic) takings

Two situations are treated as takings per se:

• Permanent physical occupation:

  Any permanent government occupation of private property—even a very small portion—is a taking. Examples:

  • Requiring landlords to allow a cable company to place equipment on their building.
  • Granting the public a permanent access easement across a portion of private land.
  • Installing permanent flood‑control structures that occupy part of a parcel.

  It does not matter that the area occupied is tiny or that the burden seems minor; permanence is key. A permanent occupation by either the government itself or a third party authorized by the government triggers a per se taking.

• Total loss of economic use:

  A regulation that deprives the owner of all economically viable use of the land is a per se taking, unless background principles of state property or nuisance law already prohibited the use.

  Examples:

  • A coastal regulation that bars all building on a beachfront lot, leaving it with no permissible productive use, is treated as a taking.
  • A statute that permanently prohibits any development of a parcel designated as a wildlife sanctuary, where the prior reasonable expectation was residential development, will often be a per se taking.

  By contrast, a ban on building in a dangerous floodplain where traditional nuisance or property principles already restrict such development may be upheld without compensation.

If any viable economic use remains, the per se rule does not apply, and you move to the balancing test.

2. Regulatory (partial) takings

When some economic use remains, but the regulation significantly restricts property use, courts apply a balancing test (often called the Penn Central test). They consider:

• The economic impact of the regulation on the owner (how much value was lost).
• The extent of interference with the owner’s reasonable investment‑backed expectations (what uses the owner reasonably planned and relied upon).
• The character of the government action (e.g., a broadly applicable public program adjusting burdens vs. a targeted action that singles out a small number of owners).

Most ordinary zoning, historic‑preservation, and environmental regulations do not amount to takings, even if they significantly reduce property values, as long as some reasonable use remains.

Examples usually not takings:

• Zoning limiting buildings to a certain height in a residential district.
• Landmark designation that prevents demolition or major changes but allows continued use of the building (e.g., operating an office or residence).
• Environmental rules that require leaving a strip of land undeveloped as a buffer, while allowing development of the remainder.

Examples more likely to be takings:

• A regulation that prohibits all development on most of a parcel, leaving only a sliver usable, where the owner bought the land before the regulation and had reasonable expectations of developing it.
• A rule that singles out a very small group of owners for severe restrictions that are not imposed on similarly situated properties, with little justification.
• Repeated, long‑term government flooding of property that effectively destroys its practical use, even if each flood is technically “temporary.”

The key is that regulation is allowed to be quite burdensome without being a taking; the Constitution does not guarantee the most profitable use, only that the government may not effectively confiscate all or nearly all economic value without compensation.

3. Exactions and permit conditions

Sometimes the government grants land‑use permits subject to conditions requiring the owner to give up some property interest or pay money (e.g., dedicate a strip of land for a sidewalk, pay for off‑site road improvements, install public amenities).

These exactions trigger a special test:

• There must be an essential nexus between the condition and a legitimate public interest (the condition must address a problem the development would create).
• There must be rough proportionality between the impact of the proposed development and the burden imposed by the condition.

If a demanded exaction fails these tests, it is treated as a taking requiring compensation: the government must either pay for what it demands or drop the condition.

Examples:

• Requiring a developer to dedicate land for a sidewalk where the new building will obviously increase pedestrian traffic is likely justified.
• Requiring a single homeowner to give the public access across her entire beachfront as a condition of expanding her house, where public access was not previously available and the expansion does not create that need, is likely an unconstitutional exaction.

Money exactions (e.g., “pay $50,000 for unrelated off‑site improvements or no permit”) can also trigger takings scrutiny when they are closely tied to specific property use, not merely to general taxes.

Exactions also intersect with the unconstitutional conditions doctrine (discussed later): the government cannot force a property owner to surrender a constitutional right (here, the right to compensation for takings) as the price of a discretionary permit.

4. Temporary restrictions and emergencies

• Temporary moratoria (such as a development freeze while a city rewrites its zoning code) are usually treated as regulations, not per se takings, but they are evaluated under the Penn Central factors. Particularly long or onerous moratoria can sometimes amount to takings, especially when they destroy reasonable expectations over many years.
• Government destruction of property in an emergency under the police power (e.g., burning a row of houses to create a firebreak, destroying diseased trees, killing livestock to stop an epidemic) is often treated as noncompensable, because the government is preventing a grave public harm rather than appropriating property for its own use. That is viewed as regulation to abate a nuisance, not a taking for public use.

Also distinguish a government tort from a taking. If a city negligently floods your property through mismanaged infrastructure and then promptly repairs the error, the proper claim is usually in tort (if at all), not takings. A taking generally involves intentional or authorized government action imposing a continuing burden.

Once you find a taking, you must ensure both public use and just compensation are satisfied. On the MBE, the hard part is almost always deciding whether the government conduct is a taking at all, not whether the use is “public.”

Retroactive Legislation: Ex Post Facto Laws and Bills of Attainder

The Constitution contains categorical bans on certain retroactive or punitive laws.

Key Term: Ex Post Facto Law
A law that retroactively makes conduct criminal, increases the punishment for a crime, or reduces the government’s evidentiary burden for conviction, applied to events that occurred before the law’s enactment. It is prohibited to both Congress and the states.

Ex post facto restrictions

Ex post facto restrictions:

• Apply only to criminal or penal laws, not to civil regulations, taxes, or neutral procedural rules.
• Forbid laws that:
  • Make yesterday’s lawful conduct a crime today (retroactively criminalize conduct).
  • Increase the range or severity of punishment after the crime was committed (e.g., raising maximum penalties or mandating harsher sentencing after the fact).
  • Change the rules of evidence to make conviction easier for past conduct (e.g., reducing the prosecution’s burden of proof, allowing conviction on less or different evidence, where the change is clearly punitive in effect).

A traditional way to frame ex post facto laws is:

• A law that creates a crime after the act.
• A law that aggravates a crime or makes it greater than it was when committed.
• A law that increases punishment after the act.
• A law that changes the rules of evidence to make conviction easier.

Important nuances:

• A change in procedural rules that does not significantly increase the risk of conviction (e.g., altering rules of venue or appeal) usually does not violate the Ex Post Facto Clause.
• A new death penalty procedure that actually narrows the class of defendants eligible for capital punishment can be applied to crimes committed earlier, because it is not considered disadvantageous to the defendant.
• Retroactive changes that are clearly labeled “civil” can still violate the Ex Post Facto Clause if they are so punitive in purpose or effect as to be essentially criminal, but the Court rarely finds that line crossed. Most sex‑offender registration and community‑notification laws, for example, have been treated as civil (and thus not subject to ex post facto limits), even though they have serious consequences.

Ex post facto does not apply to:

• Retroactive tax statutes or changes in civil liability.
• Retroactive extension or revival of civil statutes of limitations.
• Judicial decisions that reinterpret criminal statutes in predictable ways. But due process does limit unexpected, indefensible judicial expansion of criminal statutes to new conduct.

Those are addressed under due process.

Exam tip: If the statute is labeled “civil” but imposes a burden that looks like traditional punishment (e.g., public shaming, automatic loss of employment, criminal‑like restraints), consider both ex post facto and bill‑of‑attainder arguments—but remember that the Court is reluctant to treat formally civil measures as “punishments” for ex post facto purposes.

Civil retroactivity and due process

Civil retroactivity examples:

• Retroactive tax changes or closing of a tax loophole are typically upheld if they are rationally related to a legitimate government interest (e.g., fiscal stability) and the retroactive period is limited.
• Revival of a previously expired civil claim (e.g., extending the statute of limitations for childhood sexual abuse claims) is generally permissible under due process, absent a Contracts Clause or takings problem, because no criminal punishment is at stake.
• Retroactive changes in remedies or procedures (e.g., adjusting available damages or attorney‑fee rules) are usually upheld under rational basis review.

However, extremely harsh civil retroactivity that destroys clearly vested property rights can raise takings or substantive due process issues, especially if it appears arbitrary or targeted at a narrow group.

Key Term: Bill of Attainder
A legislative act that inflicts punishment on a named individual or easily identifiable group without a judicial trial.

Bills of attainder

Bills of attainder:

• Are forbidden to both the federal and state governments.
• Are legislative acts that:
  • Identify particular persons or a small group (by name or by past conduct), and
  • Impose punishment (broadly understood) without the protections of a judicial trial.

“Punishment” for this purpose is interpreted broadly and can include:

• Criminal sanctions.
• Confiscation of property.
• Barring named individuals from government employment, benefits, or participation in certain professions.
• Imposing burdens based on past political affiliation or beliefs.

Examples that are likely bills of attainder:

• A statute naming specific individuals and barring them from government employment because of alleged disloyalty, without any trial.
• A law declaring that members of a particular political group are ineligible for government contracts.
• A law disqualifying named individuals from practicing a profession because of their past association with an unpopular organization.

By contrast, generally applicable laws that regulate conduct in a forward‑looking way and are enforced through the courts (e.g., laws banning support for designated terrorist organizations) are not bills of attainder, even if they impact particular groups.

The key is that the legislature itself, rather than the courts, is imposing punishment on identified persons.

Bills of attainder questions often tempt you to answer with “equal protection” or “First Amendment” when the real target is the legislature’s decision to act as judge and jury against particular individuals.

Other Prohibited or Limited Legislation

This group includes several doctrines that frequently overlap with due process and equal protection.

Full Faith and Credit

Key Term: Full Faith and Credit Clause
Requires states to give full effect to the final judgments of other states’ courts, so long as the original court had jurisdiction and the judgment was on the merits.

For a state to be required to honor another state’s judgment:

• The first state’s court must have had jurisdiction (both subject‑matter and personal).
• The judgment must be final and on the merits (not a purely procedural dismissal, such as for lack of jurisdiction or improper venue).
• The judgment must be properly authenticated.

A state court may not refuse to enforce a sister‑state judgment simply because it disagrees with the substantive law or policy. There is no “public policy” exception to honoring judgments (though there is such an exception in choice‑of‑law analysis about which state’s law to apply to a dispute).

Additional points:

• Default judgments count as judgments “on the merits” as long as the rendering court had jurisdiction and the plaintiff proved the claim as that forum requires.
• Modifiable decrees, such as child custody and future spousal‑support orders, must be given full faith and credit as to amounts or rights that have already accrued, but the enforcing state may apply its own law to future modifications if it has jurisdiction.
• States are not required to enforce:
  • Another state’s penal judgments (e.g., criminal fines and penalties), though they often cooperate by comity.
  • Administrative orders that are not final judgments of a court.

Remember: Full faith and credit is about judgments, not laws. One state does not have to apply another state’s statute, but it does have to respect the other state’s final judgments.

Exam tip: If State A enters a valid money judgment against a defendant and the defendant later moves to State B, State B must enforce that judgment—even if State B thinks State A misapplied its own law. The only real escape is to show that the State A court lacked jurisdiction.

Unconstitutional Conditions

Key Term: Unconstitutional Condition
The government may not condition a benefit (such as a permit, subsidy, or public job) on the waiver of a constitutional right when the condition is unrelated to the benefit and effectively coerces the waiver.

Key features:

• The government may withhold a benefit entirely (e.g., not funding a program), but if it chooses to grant the benefit, it cannot coerce recipients into surrendering constitutional rights unrelated to the purpose of the benefit.
• The doctrine most commonly arises in connection with:
  • Free speech (e.g., conditions on grants or public employment).
  • Free exercise of religion.
  • Abortion and other privacy rights (e.g., conditions on funding).
  • Takings (land‑use permit exactions).

Examples include:

• Conditioning admission to the bar on signing a political oath that pledges support for a particular party or ideology.
• Denying public employment to members of a named political organization, without any showing that membership is incompatible with job duties.
• Requiring a landowner to dedicate an unrelated strip of land for public use as a condition of a building permit (an exaction that fails the nexus/proportionality test is an unconstitutional condition and a taking).

By contrast:

• The government can allocate funds based on content when it is speaking for itself (government speech) or when it is defining the scope of the program (e.g., funding childbirth‑related services but not abortion services under a particular public health program), as long as it does not penalize recipients for speech or conduct outside the program.
• The government may require employees to comply with reasonable standards of conduct and impartiality as a condition of employment, so long as it does not require them to give up core constitutional rights outside the workplace.

On the exam, ask:

• Is the government offering a benefit it could withhold?
• Is it requiring the recipient to give up a constitutional right as the price of receiving that benefit?
• Is that condition closely related to the benefit’s purpose, or is it an attempt to use government power to regulate unrelated rights?

If the condition is unrelated and coercive, think unconstitutional conditions.

Other categories

States are also barred from passing laws that:

• Violate due process or equal protection (e.g., retroactive laws that are arbitrary or irrational).
• Discriminate against interstate commerce (Dormant Commerce Clause, covered separately).
• Conflict with valid federal law (Supremacy Clause and preemption).

Application and Examples

Applying these doctrines correctly often requires choosing between multiple plausible clauses. The following worked examples illustrate how to do that and highlight exam‑style reasoning.

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. The state claims this will fund training programs to ensure lawyer competence.

Answer:
The law likely violates the Article IV Privileges and Immunities Clause. Practicing law is a protected common calling—part of a national economic market for professional services. The statute explicitly discriminates based on state citizenship, charging out‑of‑state citizens twenty times the in‑state fee. That satisfies steps 1 and 2 of the P&I test.

At step 3, the state must show that nonresidents are a peculiar source of the evil and that the discrimination is substantially related and necessary to address that problem. Funding training programs is a legitimate aim, but it is not uniquely related to nonresident lawyers; residents and nonresidents alike may need training, and the state could raise funds by increasing fees on all lawyers. A huge differential fee looks like economic protectionism rather than a narrowly tailored solution.

The Dormant Commerce Clause might also be implicated, especially if law practice is framed as a market in legal services. But where the plaintiff is an individual seeking to pursue a profession, Article IV Privileges and Immunities is the more precise doctrinal fit and the one the MBE will expect you to use.

Worked Example 1.2

A state enacts a law that retroactively increases the maximum sentence for armed robbery from 10 years to 15 years. A defendant who committed armed robbery six months before the law’s effective date is sentenced under the new 15‑year maximum.

Answer:
This violates the Ex Post Facto Clause. Armed robbery was already a crime when the defendant acted, so criminalization itself is not the problem. The issue is punishment: the law increases the maximum sentence after the defendant’s crime and then applies the harsher penalty to him. That is precisely the sort of retroactive increase in punishment the Ex Post Facto Clause forbids.

It does not matter that the legislature labels the change as merely “procedural” or “clarifying”; the key question is whether the change disadvantages the defendant by increasing the punishment or making conviction easier. Here, the defendant faces a longer potential prison term than the law allowed at the time of the offense, so the law is unconstitutional as applied to him.

The takings, Contracts, and Bill of Attainder clauses are not good fits: there is no property seizure, no contract, and no legislative punishment of a named individual. The Ex Post Facto Clause is the most specific, and therefore controlling, doctrine.

Worked Example 1.3

A city rezones land, prohibiting all construction on a parcel, making it essentially worthless. The owner sues for compensation, alleging a taking.

Answer:
The analysis turns on whether the rezoning deprives the owner of all economically viable use of the land. If the regulation leaves literally no productive use—no ability to build, farm, rent, or otherwise exploit the parcel—then it is a per se regulatory taking. The city must pay just compensation (fair market value at the time of the taking), unless the prohibited use was already barred by background principles of state property or nuisance law.

If some viable use remains (for example, the owner may build a small structure, maintain the land as a private park, or use it as parking), the per se rule does not apply. In that case, the court applies the Penn Central balancing test, weighing economic impact, interference with investment‑backed expectations, and the character of the regulation. Many zoning changes—especially those that apply broadly to large areas—are upheld as valid regulations, even if they significantly reduce value, as long as some reasonable use survives.

The owner’s argument is strongest where the rezoning is targeted and wipes out nearly all value in a way that defeats specific, reasonable expectations held when the land was purchased.

Worked Example 1.4

A state, facing budget pressures, passes a law declaring that all existing long‑term contracts between the state and its construction contractors are immediately terminable at will by the state without penalty. A contractor sues, arguing the law is unconstitutional.

Answer:
This is a strong Contracts Clause problem involving a public contract. The state is both a contracting party and the regulator changing the contract. The law plainly operates retroactively on existing contracts and substantially impairs them by converting fixed‑term agreements into at‑will arrangements, destroying the contractors’ core expectation of long‑term work.

Because the state is impairing its own obligations, the court applies a more demanding standard: the state must show that the impairment is necessary to serve an important public purpose, and that less drastic alternatives—such as raising taxes, reducing other spending, renegotiating contracts, or adjusting future procurement rules—would not suffice. “Saving money” for general budgetary reasons will almost never justify such a drastic impairment of vested contract rights.

The state might try to argue that the contracts were always subject to heavy regulation or that the change is merely procedural, but here the statute undermines the core of the bargain. This law is very likely unconstitutional under the Contracts Clause, and due process analysis is unnecessary once the specific clause is identified.

Worked Example 1.5

Congress passes a statute naming three individuals and providing that none may ever hold federal employment because of their past association with a disfavored political organization, without any judicial process.

Answer:
This is an unconstitutional bill of attainder. The statute does three things that define a bill of attainder: it (1) identifies specific individuals by name, (2) imposes punishment—permanent disqualification from federal employment—based on (3) past conduct (political association) without trial or judicial process. Under the Bill of Attainder Clauses, both Congress and the states are forbidden from legislatively inflicting punishment on named individuals or easily ascertainable groups.

The fact that the statute targets federal employment rather than imprisonment does not save it. “Punishment” for bill‑of‑attainder purposes includes severe deprivations like permanent exclusion from government jobs or benefits, especially where it is based on perceived disloyalty or political beliefs.

First Amendment and equal protection arguments could also be made—the law penalizes association and possibly viewpoint—but the bill‑of‑attainder doctrine is the most direct and categorical basis for invalidation and is the one the MBE is likely to be testing.

Worked Example 1.6

A city requires, as a condition of granting a building permit for an apartment complex, that the owner donate a strip of land for a public bike path unrelated to traffic generated by the project.

Answer:
This implicates the Takings Clause via the doctrine of exactions and also raises an unconstitutional conditions issue. The city is conditioning a valuable benefit (the building permit) on the surrender of a property interest (the land for a bike path). Under the exactions doctrine, there must be an essential nexus between the condition and a legitimate public interest, and the burden imposed must be roughly proportional to the impact of the development.

If the facts show that the new apartment complex will not significantly increase bicycle or pedestrian traffic along the proposed path, or that the path primarily serves general recreational goals unrelated to the project, the nexus and proportionality requirements are not satisfied. The city is effectively demanding that the owner give away land for a public amenity the city wants anyway.

In that situation, the condition is treated as a taking: the city must either drop the condition or pay just compensation for the easement. Framing it as an unconstitutional condition leads to the same result: the government cannot coerce surrender of property rights unrelated to the legitimate purposes of the permit scheme.

Worked Example 1.7

A state extends its civil statute of limitations for personal‑injury suits, reviving claims that were previously time‑barred. A manufacturer argues that this violates the Ex Post Facto Clause because it retroactively exposes it to liability.

Answer:
The Ex Post Facto Clause does not apply. By definition it applies only to criminal or penal laws—not to civil changes in liability or remedies. Extending a civil limitations period and reviving previously time‑barred claims can be harsh, but it is not retroactive criminal punishment.

The correct framework is due process. Under substantive due process, retroactive civil legislation is reviewed under a rational basis standard unless it interferes with a fundamental right (which ordinary tort liability does not). The state can easily argue that extending the limitations period for personal‑injury claims is rationally related to ensuring compensation for injured parties and deterring wrongful conduct. Courts have upheld such changes even when they revive stale claims.

There is no Contracts Clause problem unless the statute targets existing contracts and substantially impairs them, which these general tort‑timing rules do not. The manufacturer may be understandably displeased, but the law is almost certainly constitutional.

Worked Example 1.8

A state legislature passes a statute declaring that “members of the XYZ political party are disloyal to the state” and barring all such members from holding any state office or public employment, with no provision for individual hearings.

Answer:
This is an unconstitutional bill of attainder. The statute identifies an easily ascertainable group—members of the XYZ party—based on past and present political affiliation and imposes punishment by disqualifying them from all public employment without any judicial process. That is the classic structure of a bill of attainder.

Even if the legislature insists that it is simply setting qualifications for office, the sweeping disqualification directed at a particular group because of perceived disloyalty crosses the line into punishment. The absence of any individualized hearings or opportunity to contest guilt shows the legislative, rather than judicial, nature of the punishment.

Equal protection and First Amendment freedom of association are also implicated: the law discriminates based on political affiliation and chills political participation. But these doctrines involve balancing tests, whereas the bill‑of‑attainder prohibition is categorical and directly targeted at this type of legislative punishment.

Worked Example 1.9

A state requires residents to live in the state for one year before becoming eligible for non‑emergency medical benefits funded by the state. A newly arrived resident challenges the law.

Answer:
This law burdens the fundamental right to travel and to be treated as a full resident of the new state. The correct analysis is under equal protection (and, in some decisions, the 14th Amendment Privileges or Immunities Clause). The statute classifies residents based on length of residency and denies basic benefits to the new residents. Because the right to travel is fundamental, the classification is subject to strict scrutiny.

The state must show that the one‑year waiting period is necessary to achieve a compelling interest. Typical state interests—discouraging “welfare migration,” saving money, or administrative convenience—are not compelling enough to justify outright denial of essential benefits for a year. Less restrictive means (like pro‑rata benefits or more modest waiting periods) are readily available.

On the MBE, a pure 14th Amendment Privileges or Immunities answer is rarely best; most correct answers will frame this as a violation of equal protection and the fundamental right to travel.

Worked Example 1.10

A city imposes a special tax on all properties within a flood‑control district to fund levee improvements. A property owner argues that the tax is a taking requiring just compensation.

Answer:
This is not a taking. The special assessment is a classic exercise of the taxing power, not the eminent domain power. The owner is not being forced to surrender property or an easement; she is required to pay money into a common fund for public improvements in the district. The Takings Clause does not generally apply to taxes or user fees, even when the tax is burdensome or roughly proportional to property value.

The appropriate constitutional constraints on taxes are due process and equal protection: the tax must be rationally related to a legitimate government purpose and must not be so arbitrary or discriminatory as to violate those provisions. A tax funding flood‑control improvements for properties that benefit from those improvements easily meets rational basis review.

If the assessment were wildly out of line—targeting one owner for a massive charge while exempting similarly situated owners—there might be an equal protection or state‑law problem. But the Takings Clause is not the correct doctrine for routine taxes and assessments.

Exam Warnings

• The Privileges or Immunities Clause of the Fourteenth Amendment is almost never the correct answer on the MBE. For discrimination against out‑of‑state citizens in employment or economic activity, focus on the Article IV Privileges and Immunities Clause or the Dormant Commerce Clause.
• For retroactive criminal laws, the Ex Post Facto Clause is the primary doctrine. For retroactive civil laws (e.g., tax changes, revived civil claims), ex post facto does not apply; analyze under the Contracts Clause (if contracts are substantially impaired) or under due process using rational basis review.
• Distinguish Contracts Clause from Takings Clause:
  • Contracts Clause: state law substantially impairing existing contracts.
  • Takings Clause: government appropriation or severe restriction of property.
• Distinguish Bills of Attainder from ordinary regulation:
  • Bills of attainder: legislature itself imposes punishment on named persons or small groups without trial.
  • Ordinary regulation: general rules enforced by courts through ordinary proceedings.
• In takings questions, do not jump to compensation whenever value declines. Ask whether the regulation leaves reasonable use and whether the government is adjusting burdens broadly or targeting a few owners.
• In Full Faith and Credit questions, remember that a final judgment of a sister state must be enforced even if the second state disagrees with the first state’s substantive law or would have decided differently under its own law.
• Remember that most of these doctrines apply to states and their subdivisions; where the federal government acts, you must usually rely on different clauses (e.g., Fifth Amendment due process and takings, rather than the Contracts Clause).
• In mixed fact patterns, identify the time dimension: if the law changes the legal consequences of past events, think ex post facto (criminal), Contracts Clause (civil contracts), or due process (civil generally). If the law regulates only future conduct, ex post facto and the Contracts Clause are rarely applicable.

Key Point Checklist

This article has covered the following key knowledge points:

• Article IV Privileges and Immunities prevents serious discrimination against out‑of‑state citizens regarding fundamental economic rights such as pursuing a livelihood, owning property, and accessing courts; corporations and aliens are not protected by this clause.
• The Article IV test asks: (1) Is there discrimination against out‑of‑state citizens? (2) Is a fundamental economic right or court access burdened? (3) Are nonresidents a peculiar source of the evil and is the discrimination substantially related and necessary?
• The Dormant Commerce Clause protects the interstate market as a whole and can be overcome when the state is acting as a market participant, but that doctrine does not dilute Article IV protections for individual citizens’ economic rights.
• The Fourteenth Amendment Privileges or Immunities Clause protects national‑citizenship rights (such as interstate travel and access to federal institutions) but has narrow modern use and is rarely the best MBE answer.
• The Contracts Clause bars states (not Congress) from substantially impairing existing contracts, subject to an “important and legitimate public purpose” and reasonableness test, with stricter scrutiny when the state impairs its own public contracts.
• A substantial impairment exists where a state law retroactively rewrites key terms, destroys enforcement mechanisms, or undermines reasonable expectations; minor or foreseeable regulatory changes in heavily regulated fields usually do not qualify.
• In public‑contract cases, the state must show that impairing its own obligations is truly necessary to serve an important public purpose and that less drastic alternatives (such as raising revenue or restructuring prospectively) are unavailable.
• The Takings Clause applies to both physical occupations and certain regulations; permanent physical invasions and regulations eliminating all economically viable use are per se takings requiring just compensation.
• Property for takings purposes includes real property, personal property, and recognized intangible interests such as easements, leaseholds, and profits—holders of these interests share in compensation when a taking occurs.
• In partial regulatory‑takings cases, courts apply a balancing test (economic impact, interference with investment‑backed expectations, and character of the regulation); most general zoning and environmental regulations are not takings as long as some reasonable use remains.
• Exactions imposed as permit conditions must have an essential nexus to a legitimate public purpose and be roughly proportional to the development’s impact; otherwise they are treated as takings or unconstitutional conditions.
• Public use is broadly construed as any rationally related public purpose, including economic development; just compensation is typically fair market value at the time of the taking, shared among all holders of property interests.
• Ex post facto laws are retroactive criminal or penal laws that create new crimes, increase punishment, or lower the government’s burden of proof for past conduct; they are strictly prohibited to both federal and state governments.
• Retroactive criminal changes in procedure are permitted only if they do not materially disadvantage the accused; retroactive civil changes are usually judged under rational basis due process review unless they destroy vested property rights.
• Bills of attainder are legislative acts that punish named individuals or easily identifiable groups without a judicial trial and are unconstitutional at both federal and state levels.
• Retroactive civil legislation is generally evaluated under due process (rational basis), not ex post facto principles; retroactive impairment of contracts is scrutinized under the Contracts Clause, and extreme retroactivity can raise takings or substantive due process issues.
• The Full Faith and Credit Clause requires states to honor final judgments of sister states that had jurisdiction and entered a final judgment on the merits; disagreement with the substantive law is not a valid reason to refuse enforcement.
• Under the unconstitutional conditions doctrine, government may not condition a benefit (permit, subsidy, public employment) on surrendering a constitutional right in a way that coerces a waiver unrelated to the purpose of the benefit.
• Taxes and ordinary special assessments are generally exercises of the taxing power, not takings; the Takings Clause does not protect against having to pay money into general revenue or improvement funds.
• When several constitutional provisions seem implicated, the MBE usually expects you to apply the most specific doctrine—for example, Ex Post Facto rather than due process, or Contracts Clause rather than general retroactivity principles.

Key Terms and Concepts

• Privileges and Immunities Clause (Article IV)
• Privileges or Immunities Clause (14th Amendment)
• Contracts Clause
• Takings Clause
• Public Use
• Just Compensation
• Regulatory Taking
• Ex Post Facto Law
• Bill of Attainder
• Full Faith and Credit Clause
• Unconstitutional Condition
• Market Participant Doctrine
• Profit