Prohibited Legislation

Question 1

What are the three categories of prohibited legislation?

Answer 1

1. Bills of attainder
2. Ex Post Facto Laws
3. Obligation of Contracts

Question 2

What are bills of attainder?

Answer 2

A bill of attainder is a legislative act that declares a person or group of persons guilty of some crime and punishes them without a trial. Art. 1 sections 9 and 10 forbid the feds and the states from enacting such ‘legislative trials’. It applies to only criminal or penal issues. Barring particular individuals from gov’t employment also qualifies as forbidden punishment.

Question 3

What are ex post facto laws?

Answer 3

The constitutional prohibition on ‘ex post facto’ laws is confined to a retroactive change to a criminal or penal law. A law that is civil in purpose is treated as a crim law only if its punitive effect clearly overrides its civil purpose.

Question 4

When will ex post facto laws be struck down?

Answer 4

Under Art 1, sections 9 and 10, a federal or state statute will be struck down as being ex post facto if it:

1. Criminalizes an act that was not a crime when it was originally 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 a conviction to a level below that which was required when the alleged offense was committed.

EX: extending the statute of limitations for a crime that allowed folks whose statute had already run to be prosecuted b/c it withdrew a complete defense to the crime

BUT: the retroactive application of a state law that required registration of convicted sex offenders and child kidnappers, and public notification of info about convicts, including personal information, was not an ex post fact law. Instead, it was a non-punitive regulatory scheme enacted for the protection of the public.

Question 5

What are obligations of contracts?

Answer 5

Art. 1, section 10 prohibits the states from passing any law ‘impairing the obligation of contracts.’

The prohibition only applies to state legislation, not state court decisions and not fed legislation, that retroactively impairs contractual rights. It does not apply to contracts not yet entered into.

Question 6

When does the ban on interfering with obligation of contracts apply to private contracts?

Answer 6

State legislation that substantially impairs a contract between private parties is invalid unless the government can demonstrate that the interference was reasonable and necessary to serve an important governmental interest.

Question 7

When does the ban on laws that interfere with the obligation of Ks apply to public contracts?

Answer 7

Impairment by the state of a public contract (one to which the state or local gov’t is a party) is subject to essentially the same ‘reasonable an necessary’ test as private contracts, but with a somewhat stricter application. The state must show that its important interest cannot be served by a less-restrictive alternative and that the impairment it seeks is necessary b/c of unforeseeable circumstances.

NOTE: there is no substantial impairment if the state reserved, but statute, law, or in the K itself, the right to revoke, alter or amend.