Individual rights - Other protections, including the privile...

Learning Outcomes

This article examines additional constitutional protections for individual rights that limit federal and state power on the MBE, including:

• Distinguishing the Article IV Privileges and Immunities Clause from the Fourteenth Amendment Privileges or Immunities Clause, identifying the kinds of activities each protects, and spotting when a discrimination question should be framed under one, the other, or a different doctrine such as the Dormant Commerce Clause.
• Analyzing when state economic or regulatory legislation unconstitutionally impairs existing private and public contracts under the Contracts Clause, applying the substantial-impairment test, and evaluating whether the state’s purpose and tailoring satisfy the required level of scrutiny.
• Recognizing and evaluating unconstitutional conditions on government benefits, licenses, public employment, and subsidies, and determining when a condition is too coercive, insufficiently related to the government’s interest, or effectively penalizes the exercise of a constitutional right.
• Identifying forbidden Bills of Attainder and Ex Post Facto laws, distinguishing them from facially similar but permissible retroactive civil or regulatory measures, and understanding the required elements of punishment, retroactivity, and disadvantage to a criminal defendant.
• Selecting among overlapping constitutional provisions on multi-issue MBE fact patterns involving retroactivity, punishment, contract interference, and discrimination against out-of-staters, and articulating the narrowest and most precise constitutional basis for invalidating or upholding the challenged law.

MBE Syllabus

For the MBE, you are required to understand additional individual-rights protections beyond Due Process and Equal Protection, with a focus on the following syllabus points:

• 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 and its role in protecting rights of national citizenship (especially the right to travel).
• Apply the Contracts Clause analysis to state laws impairing existing contractual obligations, distinguishing between private and public (state) contracts.
• Identify situations where the government imposes unconstitutional conditions on benefits or privileges, particularly involving speech, association, and property rights.
• Recognize Bills of Attainder as legislative acts inflicting punishment on named individuals or easily ascertainable groups without judicial trial.
• Identify Ex Post Facto laws as retroactive criminal legislation that disadvantages a defendant by criminalizing prior innocent conduct, increasing punishment, or easing conviction.

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 $2,500 annual license fee. Fishermen residing in State A pay only $100. 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 contains several more targeted limitations on federal and state power that frequently appear in MBE questions. These provisions are less intuitive than Equal Protection or the First Amendment, but they operate in very patterned ways. Learning those patterns is important for spotting the best constitutional theory on a multiple-choice question.

When you see:

• A state discriminating against out-of-state citizens in working, doing business, or accessing courts, think Article IV Privileges and Immunities and possibly the Dormant Commerce Clause.
• A state retroactively altering the obligations of existing contracts, think the Contracts Clause rather than just Due Process.
• Government using a license, public job, or subsidy to pressure someone into giving up free speech or another right, think the Unconstitutional Conditions doctrine.
• A legislature itself naming people (or a tiny group) and effectively convicting and punishing them without a trial, think Bills of Attainder.
• A legislature retroactively worsening criminal liability (criminalizing earlier conduct or increasing punishment), think Ex Post Facto.

On bar questions these doctrines often compete with Due Process, Equal Protection, the Dormant Commerce Clause, the Takings Clause, and the First Amendment. Doing well requires spotting which provision is the narrowest and most precise fit.

Key Term: Fundamental Right (Article IV context)
For Article IV Privileges and Immunities, a fundamental right is a core incident of state citizenship—principally the right to pursue a common calling (livelihood), own and dispose of property, and access courts—rather than recreational or purely local benefits.

Key Term: National Citizenship Rights
Rights that attach to being a citizen of the United States as such (for example, interstate travel, voting in federal elections, accessing federal courts and institutions), protected against state interference by the Fourteenth Amendment Privileges or Immunities Clause.

Key Term: Retroactive Legislation
A law that changes the legal consequences of actions or events that occurred before the law’s enactment. Retroactivity is not automatically unconstitutional; its validity depends on context (criminal vs civil, contracts vs general regulation, etc.).

Key Term: Criminal or Penal Law
For Ex Post Facto purposes, a statute that imposes criminal punishment or its functional equivalent (imprisonment, fines, mandatory registration if punitive) rather than purely civil, regulatory consequences.

Key Term: Punishment (Bill of Attainder context)
A legislative sanction historically associated with penal consequences—death, imprisonment, fines, confiscation, or disabling from employment or office—imposed on named or singled-out persons without a judicial trial.

Key Term: Privileges and Immunities Clause (Article IV)
Prohibits states from discriminating against citizens of other states with respect to fundamental rights of state citizenship, principally important commercial pursuits (pursuing a livelihood, owning property) and basic civil liberties (such as access to courts).

Key Term: Privileges or Immunities Clause (14th Amendment)
Protects rights of national citizenship (for example, the right to travel, vote for federal officers, and access federal institutions) against state interference. Interpreted very narrowly since the Slaughter-House Cases.

Key Term: Contracts Clause
Article I, Section 10 provision barring states from passing laws that retroactively and substantially impair the obligations of existing contracts (public or private).

Key Term: Unconstitutional Conditions Doctrine
Principle that the government may not condition a benefit, subsidy, permit, or privilege on the surrender of a constitutional right, where the condition lacks an adequate relation to the government’s legitimate objectives.

Key Term: Bill of Attainder
A legislative act that inflicts punishment on identified individuals or easily ascertainable groups without a judicial trial.

Key Term: Ex Post Facto Law
A law that retroactively makes conduct criminal, increases punishment, or eases conviction for past conduct, and thereby disadvantages a criminal defendant.

Exam overview and overlap map

On a typical MBE constitutional-law question involving these doctrines, run this triage quickly:

• Is there retroactivity in the criminal context?

  • If yes, ask whether the new law makes past conduct criminal, increases punishment, or makes conviction easier. If so, focus on Ex Post Facto.

• Is the legislature itself designating specific people for punishment?

  • If yes, think Bill of Attainder.

• Is there a state law impairing existing contracts?

  • If yes, use the Contracts Clause before jumping to Due Process.

• Is the government using money, licenses, or jobs to coerce waiver of rights?

  • If yes, analyze Unconstitutional Conditions alongside the relevant right (speech, free exercise, property).

• Is a state disadvantaging out-of-staters in economic pursuits or court access?

  • If yes, think Article IV Privileges and Immunities, and compare with the Dormant Commerce Clause.

• Is a state disadvantaging new residents as such (for welfare or voting)?

  • If yes, think the right to travel, with the Fourteenth Amendment Privileges or Immunities Clause in the background, but expect Equal Protection to do most of the doctrinal work.

• Exam warning: If two doctrines seem to fit, choose the one that is (1) more specific to the injury described, and (2) matches the governmental actor involved (state vs federal, legislature vs executive).

The remainder of this article elaborates each of these doctrines with tests, common traps, and worked examples.

1. Privileges and Immunities Clauses

There are two different clauses with confusingly similar names, and they play very different roles on the MBE.

• Article IV, Section 2: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
  This is sometimes called the “Interstate” Privileges and Immunities Clause.

• 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.”
  This is the Privileges or Immunities Clause of the Fourteenth Amendment.

The bar exam regularly uses the Fourteenth Amendment clause as a decoy—the Article IV clause does most of the real work in interstate discrimination questions.

1.1 Article IV Privileges and Immunities: economic and civil rights of state citizenship

The Article IV clause limits states’ ability to discriminate against citizens of other states with respect to certain “fundamental” activities.

Protected activities are those that are basic to the maintenance or well-being of the union:

• Pursuing a common calling (earning a livelihood, doing business, working in a profession)
• Owning, leasing, and transferring property
• Accessing state courts
• Possibly obtaining basic medical services in some contexts

In contrast, recreational activities (hunting elk for sport, lower fees for state parks for residents, in-state tuition at state universities) are generally not within Article IV’s protection.

The core test:

1. Threshold:

   • Is the state law discriminating against out-of-state citizens with respect to a protected activity?
   • Note: Citizens only—corporations and aliens cannot invoke Article IV.

2. If yes, the law is presumptively invalid unless the state shows:

   • Substantial reason for the difference in treatment (nonresidents are a peculiar source of the evil the law targets), and
   • The discrimination bears a close (substantial) relationship to the state’s objective, and
   • There are no less restrictive, non-discriminatory alternatives that would adequately protect the state’s interest.

This is a demanding test—more than rational basis, less than full strict scrutiny, but hard to satisfy in practice.

Common patterns:

• Charging out-of-staters higher commercial license fees (e.g., commercial fishing or shrimping) often violates Article IV.
• Preferences for residents in public employment that is commercial (e.g., hiring for private construction) may violate Article IV.
  But preferences for residents in purely governmental positions (police, teachers, elected officials) are usually allowed.
• Limitations on bar admission or professional licenses based on residency almost always violate Article IV.

Also remember:

• Article IV P&I is a limit on states, not the federal government.
• The clause does not apply to discrimination between a state’s own residents; that’s an Equal Protection issue.

Article IV Privileges and Immunities vs. Dormant Commerce Clause

The same discriminatory state law may implicate both doctrines. The exam often wants you to choose one:

• Article IV P&I

  • Protects out-of-state citizens in their capacity as individuals.
  • Applies only to discrimination against natural persons.
  • Focuses on fundamental rights of state citizenship (work, property, courts).

• Dormant Commerce Clause

  • Protects the interstate market (goods, services, capital), including corporations and aliens.
  • Applies to any regulation burdening interstate commerce, even if individuals are not the target.

If a fact pattern stresses individual workers or professionals being disfavored because of out-of-state citizenship, Article IV is usually the best answer.

If the focus is on burdens on interstate commerce generally, especially involving corporations, the Dormant Commerce Clause is usually better.

Exam tip: If the plaintiff is a corporation complaining about discriminatory fees or regulations, Article IV is not available. Look to the Dormant Commerce Clause.

Worked Example 1.1

A state anticipates a possible reduction of its native oyster population and enacts a statute raising license fees for out-of-state residents to 20 times the in-state fee. The statute applies to both recreational and commercial oyster fishermen. An out-of-state commercial oyster fisherman sues, claiming the statute is unconstitutional.

Answer:
The best challenge is under Article IV Privileges and Immunities. Commercial fishing is pursuing a livelihood— a protected fundamental activity. The statute expressly discriminates against out-of-state citizens in that activity. The state would have to show that nonresident commercial fishermen are a peculiar source of the overfishing problem and that the 20-fold fee is closely tailored, with no less discriminatory alternative. That is very unlikely to succeed. The Fourteenth Amendment Privileges or Immunities Clause is inapplicable, and the Dormant Commerce Clause is a plausible but less targeted basis given that the plaintiff is a natural person.

1.2 Fourteenth Amendment Privileges or Immunities: rights of national citizenship

Since the Slaughter-House Cases, the Fourteenth Amendment Privileges or Immunities Clause has been interpreted very narrowly. It protects only rights of national citizenship, such as:

• The right to travel to and from the states
• The right to become a citizen of any state by bona fide residence
• The right to vote in federal elections
• The right to petition Congress and access federal courts
• The right to use navigable waters and other national instrumentalities

Most state laws infringing civil rights are analyzed under Equal Protection or Substantive Due Process, not this clause.

The main modern use on the bar exam is as one doctrinal basis for the right to travel, particularly when states treat new residents less favorably than longer-term residents in areas like welfare benefits or voting.

Key points:

• The Fourteenth Amendment Privileges or Immunities Clause applies only to state action, not federal action.
• It protects citizens of the United States, not corporations or aliens.
• It is rarely the correct answer on the MBE when offered as the sole basis for invalidating a law; often Equal Protection (for suspect classifications) or Due Process (for fundamental rights) is better.

Exam tip: When you see “Privileges or Immunities Clause of the Fourteenth Amendment” as an answer choice, it is almost always a distractor unless the question clearly involves discrimination against newly arrived state residents in core national rights like travel or voting.

2. The Contracts Clause

The Contracts Clause appears in Article I, Section 10: “No State shall...pass any...Law impairing the Obligation of Contracts.” It only limits states, not Congress. There is a parallel but more flexible Due Process analysis for federal retroactive laws.

The Clause is not a blanket ban on affecting contracts. Instead, it prohibits substantial impairments of existing contractual relationships unless justified under a form of heightened scrutiny.

Key features:

• Applies only to state laws, including state constitutional amendments and ordinances.
• Applies only to existing contracts—those in effect before the challenged law was enacted.
• Applies to both private contracts (between private parties) and public contracts (where the state is a contracting party, such as state bonds, pension commitments, or long-term supply contracts).

2.1 Step-by-step analysis

When you see a Contracts Clause issue on the MBE, walk through:

1. Is there a state law?

   • If the law is federal, the Contracts Clause does not apply; use Due Process (and sometimes Takings) instead.

2. Does the law operate retroactively on an existing contract?

   • If the contract postdates the law, there is no Contracts Clause problem. States are free to regulate future contracts.

3. Is there an “impairment” of contract obligations?

   • Does the law alter the parties’ legal obligations in a meaningful way (e.g., canceling or reducing obligations, enlarging defenses, altering remedies in a way that makes enforcement significantly more difficult)?
   • A mere change in court procedures or minor shifts in remedies with no practical effect usually is not a substantial impairment.

If the answer to all three questions is “yes,” then:

1. For private contracts, ask:
   • Does the law serve a significant and legitimate public purpose (e.g., remedying a broad economic or social problem, not just benefiting a narrow group)?
   • Is the adjustment of rights reasonable and appropriate to achieve that purpose?

This is a form of intermediate scrutiny. States have some leeway when regulating private contracts to deal with genuine economic or social emergencies.

1. For public (state) contracts, the scrutiny is more demanding:
   • When the state is modifying its own contractual obligations, courts look with skepticism at self-serving legislative relief.
   • The state must show that the impairment is necessary and reasonable to serve an important public purpose and that it could not achieve its goal by less impairing alternatives.
   • The state cannot contract away “essential attributes” of sovereignty (like its police power), so in some cases it can later regulate in ways that incidentally affect its own contracts.

Exam tip: The Contracts Clause is not violated just because someone’s economic expectations are disappointed. Look for clear, retroactive alteration of legal obligations in a preexisting contract.

Worked Example 1.2

State X suffers a fiscal crisis. Ten years ago it issued 30-year bonds promising to pay 7% interest annually. New legislation reduces the interest payable on all outstanding state bonds to 3% to free funds for schools and hospitals. Bondholders sue under the Contracts Clause.

Answer:
This is a public contract case: the state is impairing its own bond obligations. The law retroactively changes the terms of existing contracts (substantial impairment), so the Contracts Clause applies. The state invokes an important public purpose (funding schools and hospitals), but the question is whether reducing interest from 7% to 3% is necessary and reasonable and whether less drastic alternatives are available (e.g., raising taxes, cutting other expenses). Under the heightened scrutiny for public contracts, such a sweeping self-relief is likely unconstitutional under the Contracts Clause.

2.2 Contracts Clause vs. Ex Post Facto vs. Due Process

Overlap questions are common:

• Ex Post Facto applies only to criminal or penal laws that retroactively disadvantage the defendant.
• Contracts Clause applies only to state laws impairing existing contracts.
• Due Process is the fallback for retroactive civil laws that are not contractual, or for federal laws that alter contracts.

When the law:

• Retroactively criminalizes or increases punishment for conduct → Ex Post Facto.
• Retroactively alters state obligations under existing leases, bonds, or pension contracts → Contracts Clause if a state law and an existing contract; otherwise Due Process.
• Retroactively imposes a tax or changes remedies in a non-contract context → Substantive Due Process (rational basis, usually easily satisfied).

3. Unconstitutional Conditions Doctrine

Government frequently distributes benefits—licenses, jobs, grants, tax breaks. The unconstitutional conditions doctrine limits how government may use those benefits to pressure individuals to give up constitutional rights.

The key idea:

• Government generally may choose not to confer a benefit at all, but it may not condition a benefit on the recipient surrendering a constitutional right in a way that is unduly coercive or unrelated to the benefit.

There is no single rigid test, but recurring patterns appear in MBE questions.

3.1 Requirements and structure

A condition on a government benefit is suspect if:

• The condition burdens the exercise of a constitutional right (speech, association, free exercise, privacy, property), and
• The condition is not closely related (“germane”) to the purposes of the benefit program, or
• The condition effectively penalizes the exercise of the right outside the scope of the program.

Courts distinguish between:

• Government defining the content of its own program (often allowed), and
• Government attempting to use that program to regulate speech or conduct outside the program (often forbidden).

Key contexts:

1. Public employment
2. Government subsidies and grants
3. Land-use permits and exactions (which also implicate the Takings Clause)
4. Benefit eligibility rules that penalize constitutional conduct

3.2 Public employment and loyalty conditions

Government may not condition public employment or professional licenses on surrendering core constitutional rights in a way that is not tightly related to job performance.

Examples:

• A state may require an oath to support the Constitution and oppose the overthrow of government by force. Those oaths have been upheld as sufficiently clear and job-related.
• But loyalty oaths requiring vague commitments like “encourage respect for the flag and reverence for law and order” have been struck down as vague and overbroad.
• Government may not fire an employee for invoking the Fifth Amendment unless the employee has been given immunity and still refuses to answer questions about official duties.

These cases are often analyzed under the First and Fifth Amendments, but the basic logic is an unconstitutional-conditions idea: the state is using employment to pressure waiver of constitutional protections.

3.3 Speech-related funding conditions

The Supreme Court distinguishes between:

• Conditions that define the limits of the government-funded program, and
• Conditions that attempt to control the recipient’s independent speech or conduct outside the program.

For example (illustrative, not to memorize case names):

• Government can fund a program for family planning advice and stipulate that program funds may not be used to counsel about abortion; this is defining the scope of the funded activity.
• Government cannot, as a condition of any funding, require a private organization to adopt and publicly espouse a certain policy unrelated to its funded activities; that coerces speech outside the program.

On the MBE, whenever the government says, “You get money or a license only if you say X or agree not to criticize us,” think unconstitutional conditions combined with the First Amendment.

3.4 Land-use exactions and the Takings Clause

Land-use permit conditions are a classic unconstitutional-conditions problem that overlaps with the Takings Clause.

Government can require a landowner seeking a permit to dedicate land or money for public use only if:

• There is an essential nexus between the legitimate state interest that would justify denying the permit and the condition being imposed (Nollan principle), and
• The condition is roughly proportional to the impact of the proposed development (Dolan principle).

If the government says: “We’ll grant your building permit only if you dedicate a public easement over your land or pay for a distant road project,” and there is no close connection and proportionality, this is an unconstitutional condition and a taking.

Exam tip: When you see an excessively burdensome permit condition attached to land development, analyze it under the Takings Clause with the Nollan/Dolan “nexus” and “rough proportionality” standards, and recognize it as an unconstitutional condition on the right to just compensation.

Worked Example 1.3

A city will grant a permit to build a small duplex only if the owner grants the city a permanent public easement across half of her lot to connect two public parks. The duplex will modestly increase traffic on the street.

Answer:
This is a land-use exaction. The city is conditioning the permit on giving up a property interest (an easement). There is little or no nexus between a small duplex and the need for a park-to-park easement, and requiring half the lot is not roughly proportional to the development’s impact. The condition is an unconstitutional condition violating the Takings Clause; the city must either deny the permit entirely on legitimate grounds or pay just compensation for the easement.

4. Bills of Attainder

A Bill of Attainder is a legislative act that:

1. Specifically identifies individuals or a small group (by name or readily ascertainable description), and
2. Imposes punishment, and
3. Does so without a judicial trial.

Both the federal government and the states are forbidden to pass bills of attainder.

The basic separation-of-powers principle is that legislatures make laws; courts apply them to particular people and impose punishment through judicial process.

4.1 Elements in detail

1. Specificity

   • The law names an individual (“John Smith”) or describes a narrow group in terms of past conduct (“all members of the Communist Party who served as union officers between 1950 and 1960”).
   • The group must be easily ascertainable. A law of general application that happens to hurt a few people is not a bill of attainder.

2. Punishment

   • Historically recognized punishments: death, imprisonment, fines, confiscation of property, and disqualification from employment or public office.
   • Modern cases also treat severe occupational bans and reputational sanctions tied to legal disabilities as punishment.

3. Lack of judicial trial

   • The legislative act itself imposes the penalty, rather than authorizing courts to impose penalties after judicial proceedings.

If all three are present, the law is an unconstitutional bill of attainder.

4.2 Examples and non-examples

Unconstitutional bills of attainder:

• A federal statute making it a crime for members of a named political party to serve as union officers, based on membership alone, was held to be a bill of attainder (Brown).
• A law singling out a named federal official and stripping him of his pensions and benefits as “punishment” for alleged misconduct, without trial, would be a bill of attainder.

Not bills of attainder:

• A law regulating a class of conduct (e.g., felons cannot possess firearms) is generally not a bill of attainder even though it applies to identifiable persons; it is a general rule triggered by judicial findings (felony conviction).
• A law transferring control of a former President’s papers to the government was upheld where it served a nonpunitive, administrative purpose, even though it applied to a “class of one” (Nixon).

On exam questions, ask:

• Is the legislature using lawmaking to reach back and punish particular persons (usually for past conduct) outside of the criminal process?
• Or is it adopting a general regulation with a legitimate nonpunitive purpose?

Worked Example 1.4

Congress enacts a statute stating: “Members of the Freedom Now Party are hereby fined $10,000 each for advocating civil disobedience, and are barred from federal employment.” No judicial proceedings are provided.

Answer:
This is an unconstitutional Bill of Attainder. It targets a specific, easily identifiable group (members of a named party), imposes punishment (fines and employment disqualification), and does so without judicial trial. Choice (b) in the Test Your Knowledge section reflects this analysis.

5. Ex Post Facto Laws

The Ex Post Facto Clauses (one applicable to Congress, one to the states) prohibit the passage of retroactive criminal laws that disadvantage the defendant.

They do not apply to civil legislation. Retroactive civil laws are reviewed under Due Process and often upheld if rational.

5.1 What counts as an ex post facto law

Traditionally, a law is ex post facto if it:

1. Makes criminal an act that was innocent when done, or
2. Increases the punishment for a crime after it was committed (e.g., raising the maximum penalty), or
3. Changes the rules of evidence or procedure in such a way that it makes conviction easier (e.g., reducing the prosecution’s burden of proof), or
4. Extends a criminal statute of limitations after it has already run, thereby reviving a previously time-barred prosecution.

The focus is on legislation, and on laws that retroactively disadvantage the defendant in a criminal case.

Exam tip: Extending a statute of limitations for crimes may be permissible if applied only to crimes not yet time-barred at the time of extension. But reviving already time-barred prosecutions is ex post facto.

5.2 Criminal vs. civil laws

The Ex Post Facto Clause applies only to criminal or penal laws. Civil regulations, including:

• Retroactive taxes
• Retroactive changes in civil remedies or procedures
• Retroactive economic regulations or licensing rules

are not covered, even if they feel punitive.

Those civil laws are instead tested under Substantive Due Process: are they rationally related to a legitimate government interest? Courts are very deferential in that setting.

There is a gray area where a statute labels something “civil” (e.g., sex offender registration, forfeitures), but it functions as a punishment. In such cases, the Court may decide the law is truly punitive and thus subject to the Ex Post Facto Clause. On the MBE, the fact pattern will usually signal clearly whether you are in a criminal punishment context.

Worked Example 1.5

A state legislature passes a law retroactively increasing the statute of limitations for misdemeanor theft from one year to three years. Defendant committed a theft 18 months before the law and the one-year limitations period had already expired when the new law took effect. The state now prosecutes Defendant.

Answer:
This law violates the Ex Post Facto Clause. It is criminal legislation that revives a previously time-barred prosecution, thereby disadvantaging the defendant. Choice (c) in Test Your Knowledge is correct. The Contracts Clause is irrelevant (no contract). Double Jeopardy does not apply (no prior prosecution).

5.3 Judicial changes to criminal law

The Ex Post Facto Clause formally limits legislatures, not courts. However, Due Process imposes a parallel limit on courts: they may not reinterpret criminal statutes in an “unexpected and indefensible” way and apply that interpretation retroactively to earlier conduct.

• For example, if the highest state court suddenly abolishes a long-standing rule that had been part of the definition of a crime and retroactively applies its new interpretation to a defendant’s prior conduct, due process may be violated.

On the MBE, this is rarely the focus; most retroactivity questions involve legislation.

6. Putting It Together: Choosing the Right Doctrine

Many bar-style questions involve overlapping doctrines. Here are typical combinations and how to sort them out:

• State law retroactively changing criminal punishment → Ex Post Facto (primary), with Due Process as a backup.
• State law singling out a named person for punishment without trial → Bill of Attainder.
• State law retroactively changing obligations under an existing contract → Contracts Clause if a state law and an existing contract; otherwise Due Process.
• State discriminating against out-of-staters in economic pursuits → Article IV Privileges and Immunities (if natural person plaintiffs); Dormant Commerce Clause for corporations.
• State discriminating against new residents (one-year residency for benefits) → Right to travel; Equal Protection (possibly the 14th Amendment Privileges or Immunities as background).
• Government funding conditioned on speech restrictions → Unconstitutional conditions + First Amendment.
• Permit condition requiring property dedication unrelated to project impacts → Takings Clause + unconstitutional conditions.

Worked Example 1.6

State B enacts a statute providing that anyone convicted of embezzlement is permanently barred from holding any public office in the state. The law applies to all embezzlement convictions, past and future. A person convicted of embezzlement five years earlier sues, claiming the law is an unconstitutional bill of attainder and ex post facto law.

Answer:
The law is not a bill of attainder because it does not single out specific named individuals; it applies generally to all persons convicted of embezzlement, and the relevant convictions are obtained in court. Whether it is an Ex Post Facto law is more complex. The bar on holding office is a civil disability; most courts treat such collateral consequences as civil, not criminal, so the Ex Post Facto Clause does not apply. The more precise analysis is under Due Process and possibly Equal Protection. On an MBE-style question like Test Your Knowledge Question 2, the best bill-of-attainder example would be a law directly punishing a named group (like members of a party) without trial, not a general disability tied to criminal convictions.

Worked Example 1.7

State C provides that new residents are ineligible for state-funded nonemergency medical care until they have lived in the state for one year. A woman who recently moved to the state and needs nonemergency surgery sues, asserting a fundamental right to health care and a violation of her right to travel.

Answer:
There is no general fundamental right to health care, so that framing is weak. However, the law penalizes the fundamental right to travel by treating new residents less favorably than longer-term residents in basic welfare benefits. This triggers strict scrutiny under Equal Protection (and can be described as an infringement of the Privileges or Immunities of national citizenship). The state must show that the durational residency requirement is necessary to a compelling interest, which it almost certainly cannot. Thus, the woman should prevail, and the right-to-travel analysis is the best doctrinal basis.

Worked Example 1.8

State D enacts a law that says: “All doctors practicing in this state must have been residents of this state for at least two years.” A physician licensed and in good standing in a neighboring state but newly arrived in State D is denied a license and challenges the law.

Answer:
This is discrimination against out-of-state citizens in pursuing a common calling—a core Article IV Privileges and Immunities activity. The state must show that newer residents are a peculiar source of some particular evil (e.g., medical malpractice) and that a two-year durational residency requirement is closely tailored. That is extremely unlikely; the law is unconstitutional under Article IV Privileges and Immunities. It also burdens the right to travel, but Article IV is the more specific doctrine.

Worked Example 1.9

Congress passes a statute stating that “Any person who, on or before January 1 of this year, failed to register for the draft shall be ineligible for federal student aid and is hereby deemed guilty of a felony.” The law is challenged by a student who failed to register before January 1.

Answer:
The part of the law making past failure to register a felony is an Ex Post Facto violation: it criminalizes conduct that was not a crime at the time, or increases punishment retroactively. The part denying student aid is a civil consequence; that element would be analyzed under Due Process and is more likely to be upheld. On the MBE, focus on Ex Post Facto for the retroactive criminalization.

Worked Example 1.10

A city offers art grants to nonprofit organizations but only to those that sign a pledge stating they will not criticize the mayor’s policies in any of their publications or events. A nonprofit refuses to sign and is denied a grant.

Answer:
This is an unconstitutional condition on the exercise of free speech. The city has broad discretion to decide what artistic projects to fund, but it cannot condition funding on the recipient’s surrender of its right to criticize the government in its own activities outside the funded program. The pledge is not limited to the content of the funded project; it suppresses independent speech and is invalid.

Key Point Checklist

This article has covered the following key knowledge points:

• Article IV Privileges and Immunities protects out-of-state citizens against state discrimination in fundamental economic and civil activities (work, property, courts); corporations and aliens may not invoke it.
• The Fourteenth Amendment Privileges or Immunities Clause protects rights of national citizenship and is used mainly in right-to-travel cases; it is rarely the best direct answer on the MBE.
• The Contracts Clause limits state laws that retroactively and substantially impair existing contracts, with stricter scrutiny when the state alters its own public contracts.
• The unconstitutional conditions doctrine prevents government from coercively conditioning benefits, jobs, permits, or funding on surrender of constitutional rights in ways that are unrelated or disproportionate to the program’s purpose.
• Bills of Attainder are legislative acts that single out specific individuals or small groups for punishment without a judicial trial; both federal and state governments are forbidden to enact them.
• Ex Post Facto laws are retroactive criminal laws that disadvantage defendants by criminalizing past conduct, increasing punishment, easing conviction, or reviving time-barred prosecutions.
• Retroactive civil legislation, including taxes and economic regulations, is not ex post facto but is tested under substantive due process; rational basis review usually applies.
• When multiple doctrines seem to apply, choose the one that is both most specific to the injury and matches the governmental actor (state vs federal, legislature vs executive).

Key Terms and Concepts

• Fundamental Right (Article IV context)
• National Citizenship Rights
• Retroactive Legislation
• Criminal or Penal Law
• Punishment (Bill of Attainder context)
• Privileges and Immunities Clause (Article IV)
• Privileges or Immunities Clause (14th Amendment)
• Contracts Clause
• Unconstitutional Conditions Doctrine
• Bill of Attainder
• Ex Post Facto Law