Ordinances and Prohibited Legislation

Question 1

What is a Bill of Attainder?

Answer 1

Legislative act that:

1. declares a person or group of persons guilty of some crime AND
2. punishes them without trial

Question 2

Constitutionality of a Bill of Attainder

Answer 2

Unconstitutional - Denies individuals proper procedural DP by convicting & punishing them w/out judicial trial

• US const. forbids both fed. & st. gov’t to enact these

Distinguished from DP - DP entitles an individual to notice & hearing b/f being deprived of an int. in lib. or prop. These req. don’t apply to legis. acts ➞ BOA clause imposes these req. on congress

Question 3

Bill of Attainder - Distinguished from Due Process

Answer 3

DP entitles an individual to notice & hearing b/f being deprived of an int. in lib. or prop. These req. don’t apply to legis. acts

• BOA clause imposes these req. on congress

Question 4

Ex Post Facto Laws

Answer 4

Const. prohibition on an ex post facto law is confined to a retroactive change to a criminal or penal law

• A law that is civil in purpose is treated as crim. law only if its punitive effect overides its civil purp.

Question 5

When will a federal or state statute be struck down as being ex post facto?

Answer 5

1. Criminalizes an act that was not a crime when it was orig. committed
2. Authorizes, after an act was committed, the imposition of a more severe penalty on that act
3. Deprives the D of a defense available at the time the act was committed OR
4. Decreases the prosecutions burden of proof required for conviction to a level below that which was required when the alleged offense was committed

Question 6

Substantive Due Process - Contracts Clause

Answer 6

State legislation may not impair existing contracts

• By retroactively impairing contractual rights
• Doesn’t apply to Ks not entered into yet
• State legis. only!
  
  • Not state court decisions or fed. leg.

Question 7

Substantive Due Process - Contracts Clause

Private Contracts

Answer 7

Intermediate Scrutiny - State or local legislation that subst. impairs an existing private K is invalid unless, the gov’t can demonstrate:

1. The interference was reasonable and necessary to serve an important government interest

Question 8

Substantive Due Process - Contracts Clause

Private Contracts - What does substantial Impairment require?

Answer 8

The state leg. destroys most or all of a party’s rights under a preexisting K

Question 9

Substantive Due Process - Contracts Clause

What is a Public Contracts ?

Answer 9

A K that the state or local gov’t is a party

Question 10

Substantive Due Process - Contracts Clause

Public Contracts

Answer 10

Impairment by the state of a public contract is subj. to essentially the same reas. and nec. test as private contracts

• Intermediate Scrutiny - State or local legislation that subst. impairs an existing private K is invalid unless, the gov’t can demonstrate:
  
  • The interference was reasonable and necessary to serve an important government interest

Question 11

Unconstitutional Vagueness

An ordinance or statute is unconstitutionally vague if it fails to set forth the prohibited conduct “with sufficient definiteness that (a) ordinary people can understand what conduct is prohibited and (b) in a manner that does not encourage arbitrary or discriminatory enforcement.”

Answer 11

Any vendor/citizens must be able to have sufficient notice of what conduct would prevent violation of the ordinance

Question 12

Analysis Steps

1. Is the law unconstitutionally vague ? Has to be (a) sufficiently descriptive so that average person would know what to do to comply with the law and (b) descriptive enough to prevent arbitrary enforcement.
2. Does the law violate procedural Due Process: ie government shall not take a person’s life, liberty or property without the due process of law. Rational basis test typically applies where the law must have a reasonable relationship to an important government interest (health, safety & welfare of citizens).
3. Does the law violate substantive Due Process - a fundamental right? Strict scrutiny would apply for violation of a fundamental right- speech, assembly , religion, marriage, child rearing, etc.
4. Does the law violate Equal Protection - apply against one class of people over another without justification (ie bikini law may discriminate against women)?
5. Does the law violate 1st Amendment right of Free Speech? if so, regulation may be ok if it is only a time, place and manner restriction.

Answer 12

Commercial speech rule - commercial speech is less protected under the First Amendment than other forms of speech.

Regulating Commercial Speech - Central Hudson Test

Under Central Hudson, there is a four-part test for whether governmental regulation of commercial speech is constitutional.

1. First, in order for the commercial speech to be considered as protected speech under the First Amendment, the speech must concern lawful activity, and the speech must not be misleading. If this step is met and the commercial speech is considered speech, then the court will use steps 2-4 below to determine whether the government regulation is constitutional
2. Second, the alleged governmental interest in regulating the speech must be substantial
3. Third, the regulation must directly advance the governmental interest asserted
4. Fourth, the regulation must not be more extensive than is necessary to serve the interested expressed in step 3