11.2 Contracts Clause, Ex Post Facto Laws, Bills of Attainder & Privileges and Immunities

11.2 Contracts Clause, Ex Post Facto Laws, Bills of Attainder & Privileges and Immunities

These provisions protect settled expectations and national unity. Each has a narrow trigger: the Contracts Clause applies only to state laws affecting existing contracts, the Ex Post Facto Clauses only to criminal punishment, and the Article IV Privileges and Immunities Clause only to discrimination against citizens of other states.

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Retroactive Legislation: The Contracts Clause

Article I, Section 10, Clause 1 provides: "No State shall . . . pass any . . . Law impairing the Obligation of Contracts."

Scope and Application

• States and Municipalities Only: The Contracts Clause applies only to state and local governments. It does not apply to the federal government. (Federal retroactive economic legislation is evaluated under Fifth Amendment Due Process rational basis review.)
• Legislative Acts Only: The Contracts Clause applies only to legislative statutes and ordinances, not to judicial decisions.
• Existing Contracts Only: The Clause protects only contracts formed before the legislation was enacted; it does not limit regulations of future contracts.

The Scrutiny Standards: Private vs. Public Contracts

                    ┌──────────────────────────────────────────────┐
                    │ Does the state law substantially impair an   │
                    │         existing contractual obligation?     │
                    └──────────────────────┬───────────────────────┘
                                           │
                         NO                │              YES
                         ▼                 │               ▼
               ┌───────────────────┐       │     ┌───────────────────┐
               │ No Contracts      │       │     │ Is the impaired   │
               │ Clause violation  │       │     │ contract PRIVATE  │
               │                   │       │     │ or PUBLIC?        │
               └───────────────────┘       │     └─────────┬─────────┘
                                                           │
                                     PRIVATE               │             PUBLIC
                                     ▼                     │              ▼
                           ┌───────────────────┐           │    ┌───────────────────┐
                           │ Intermediate      │           │    │ Strict Review /   │
                           │ Review: Important │           │    │ Heightened        │
                           │ public purpose    │           │    │ Scrutiny: Not     │
                           │ (Energy Reserves) │           │    │ mere cost-savings │
                           └───────────────────┘           │    └───────────────────┘

1. Private Contracts (Energy Reserves Group, Inc. v. Kansas Power & Light Co.)

When a state statute substantially impairs existing private contractual obligations, courts apply an intermediate standard of review:

1. Did the state law operate as a substantial impairment of a contractual relationship?
2. If so, does the state have a significant and legitimate public purpose (e.g., broad social or economic welfare)?
3. Is the adjustment of rights and responsibilities based upon reasonable conditions and of a character appropriately tailored to the public purpose?

2. Public Contracts (United States Trust Co. v. New Jersey)

When a state impairs a contract to which the state itself (or a local government entity) is a party, courts apply heightened scrutiny / strict review:

• Inherent Self-Interest: Because a state has a financial self-interest in reducing its own fiscal obligations or walking away from bond agreements, judicial deference is not appropriate.
• Standard: The impairment must be necessary and reasonable to serve an important public purpose. The state cannot justify impairing its own contract simply because it needs money or wishes to balance its budget.

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Ex Post Facto Laws & Bills of Attainder

Ex Post Facto Laws (Art. I, § 9 for Federal; Art. I, § 10 for States)

The Constitution categorically forbids both the federal government and state governments from enacting Ex Post Facto laws:

• Criminal Legislation Only (Calder v. Bull): The Ex Post Facto prohibition applies strictly to criminal statutes, never to civil laws or tax statutes (which are evaluated under due process rational basis).
• The Four Prohibited Categories (Carmell v. Texas):
  1. Criminalizing an act that was lawful when committed;
  2. Aggravating a crime or making it greater than it was when committed;
  3. Inflicting greater punishment than the law annexed to the crime when committed; or
  4. Altering the legal rules of evidence to require less or different evidence to convict than the law required when the act was committed.
• Civil Regulatory Schemes: Retroactive civil regulations—such as sex offender registration requirements (Smith v. Doe)—do not violate the Ex Post Facto Clause unless the statutory scheme is so punitive in purpose or effect as to transform a civil regulatory measure into a criminal penalty.

Bills of Attainder (Art. I, § 9 for Federal; Art. I, § 10 for States)

A Bill of Attainder is a legislative act that inflicts punishment on specifically designated named individuals or easily identifiable groups without the benefit of a judicial trial (United States v. Brown). Bills of attainder are unconstitutional per se for both federal and state governments.

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Applying the Contracts, Ex Post Facto, and Attainder Clauses

Contracts Clause Examples

• Emergency relief upheld: A Depression-era mortgage moratorium that temporarily extended the time to redeem foreclosed property was upheld because it was a reasonable, temporary response to an emergency and preserved the creditor's right to rental value (Home Building & Loan Ass'n v. Blaisdell, 1934).
• Targeted impairment struck down: A state law that retroactively increased a company's pension obligations when it closed an in-state plant substantially impaired its contracts without a broad public purpose (Allied Structural Steel Co. v. Spannaus, 1978).
• No substantial impairment: Applying a revocation-on-divorce statute to a life-insurance beneficiary designation made before the law was enacted did not substantially impair the contract, because the law was designed to reflect the policyholder's intent and could be easily reversed by redesignating the ex-spouse (Sveen v. Melin, 2018).
• Federal laws: Congress is not subject to the Contracts Clause; retroactive federal economic legislation is reviewed under due process for rationality.

Ex Post Facto and Attainder Details

• Timing: The relevant date is when the crime was committed, not when the defendant was tried or sentenced. Sentencing a defendant under federal Sentencing Guidelines issued after the offense that produce a higher sentencing range violates the Ex Post Facto Clause (Peugh v. United States, 2013).
• Procedural changes: Changes in procedure that do not increase punishment or alter the quantum of evidence needed to convict are permitted.
• Retroactive judicial decisions: The Ex Post Facto Clauses restrict legislatures, not courts. Due process, however, forbids retroactively applying an unexpected and indefensible judicial expansion of a criminal statute (Bouie v. City of Columbia, 1964), though a court may abolish an outdated common-law rule such as the year-and-a-day rule for homicide (Rogers v. Tennessee, 2001).
• Not every burden is punishment: A statute requiring the government to take custody of a former President's papers was not a bill of attainder because it was nonpunitive and served legitimate purposes (Nixon v. Administrator of General Services, 1977).

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Article IV, Section 2 Privileges and Immunities (The Comity Clause)

The Constitutional Text and Purpose

Article IV, Section 2, Clause 1 provides: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." The purpose of the Comity Clause is to fuse into one nation a collection of independent sovereign states, guaranteeing that a citizen of State A who travels into State B is treated as a welcome visitor and not an alien.

Protected Rights: Fundamental Commercial Activities

Article IV Privileges and Immunities does not protect all rights or activities. It protects only those privileges and immunities that bear upon the vitality of the nation as a single entity, specifically:

1. The Right to Pursue a Common Calling or Commercial Livelihood: Practicing a lawful profession, trade, or occupation (Toomer v. Witsell, 1948, invalidating a $2,500 shrimping license fee for non-residents vs. $25 for residents; Supreme Court of New Hampshire v. Piper, 1985, invalidating state bar admission rules restricted to state residents);
2. The Right to Acquire, Own, and Transfer Property; and
3. The Right of Access to State Courts.

Non-Protected Activities: Article IV does not protect recreational activities, hobbies, or recreational sports. In Baldwin v. Fish & Game Commission of Montana (1978), the Supreme Court upheld Montana's fee structure charging out-of-state residents 25 times more than in-state residents for a recreational elk hunting license, because recreational elk hunting is not a fundamental commercial livelihood or constitutional right.

Critical Limitation: Natural Citizens Only

• Natural Persons Only: Article IV protects only individual United States citizens (natural persons).
• Corporations and Aliens Excluded: Corporations and aliens cannot sue under the Article IV Privileges and Immunities Clause (Paul v. Virginia, 1869). When a corporation challenges state protectionist legislation, it must assert its claims under the Dormant Commerce Clause or the Equal Protection Clause.

The Standard of Review

State discrimination against non-resident citizens regarding a fundamental commercial right violates Article IV unless the state satisfies an intermediate-style review:

1. Substantial Reason: The state must demonstrate a substantial reason for the discrimination—meaning non-residents constitute a "peculiar source of the evil" the statute addresses; AND
2. Substantial Relationship: The discrimination must bear a substantial relationship to the state's objective, taking into account whether less restrictive, non-discriminatory means exist to achieve the goal.

No Market Participant Exception Under Article IV

Unlike the Dormant Commerce Clause, there is NO market participant exception under the Article IV Privileges and Immunities Clause (United Building & Construction Trades Council v. Mayor and Council of Camden, 1984). In Camden, the city expended municipal funds on public construction projects and required that at least 40% of private contractor employees be city residents. Although the city was spending public tax dollars (exempt under the DCC market participant rule), the Supreme Court held that the municipal quota discriminated against non-resident citizens' fundamental right to pursue a livelihood and was subject to full Article IV review.

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The Fourteenth Amendment Privileges or Immunities Clause

The Fourteenth Amendment provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."

Historical Construction: The Slaughter-House Cases (1873)

In the Slaughter-House Cases, the Supreme Court construed the Fourteenth Amendment Privileges or Immunities Clause extremely narrowly, holding that it protects only unique rights of national citizenship arising out of the individual's relationship with the federal government. These include:

• The right to travel between states;
• The right to petition Congress for redress of grievances;
• The right to enter public lands and navigable waters of the United States; and
• The right to vote for federal offices (President, Congress).

The clause does not incorporate the Bill of Rights or protect general civil rights against state infringement (those protections are enforced through the Due Process and Equal Protection Clauses).

Modern Application: The Constitutional Right to Travel (Saenz v. Roe, 1999)

In Saenz v. Roe, the Supreme Court revitalized the Fourteenth Amendment Privileges or Immunities Clause to protect the third component of the constitutional right to travel: the right of a newly arrived citizen of a state to be treated with equal dignity and receive the same public privileges and benefits as long-term residents.

• The Holding: The Court struck down a California statute that limited Temporary Assistance for Needy Families (TANF) cash welfare benefits for new residents during their first year in California to the maximum amount paid by their state of prior residence.
• The Rule: A state cannot create tiered classes of citizenship based on duration of residency. Newly arrived citizens have the right to select their state of residence and immediately enjoy the same governmental benefits and rights as established residents.

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More Privileges and Immunities Rules

• Resident-hiring preferences: A state law requiring employers in oil and gas work to prefer state residents violated Article IV because nonresidents were not shown to be a peculiar source of the state's unemployment problem (Hicklin v. Orbeck, 1978).
• Not every benefit is fundamental: A state public-records law that gave access only to state citizens did not violate Article IV, because access to public information is not a fundamental privilege and the law had a legitimate, nonprotectionist purpose (McBurney v. Young, 2013).
• Overlapping claims: A nonresident individual burdened by a protectionist law may often sue under both Article IV and the dormant Commerce Clause, but a corporation can use only the dormant Commerce Clause. Unlike the dormant Commerce Clause, Article IV has no market participant exception and Congress cannot authorize violations of it.
• Durational residency: Charging new residents higher tuition than longtime residents may be justified by bona fide residency requirements, but durational waiting periods for basic welfare benefits violate the right to travel.

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Summary Table: Dormant Commerce Clause vs. Article IV Privileges and Immunities vs. Fourteenth Amendment Privileges or Immunities