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