8. Con Law: Retroactive Legislation

The contracts clause prohibits states (but not fed gov't) from enacting any law that retroactively impairs contract rights. It does not affect contracts not yet entered into. Applies only to legislation, not court decisions.

Prevents only substantial impairments of contract. In determing whether legislation is valid:

1.) Does the legislation substantially impair a party's rights under an existing contract? If not, the legislation is valid. If it does, it will be valid only if it:

2.) serves an important and legitimate public interest; and

3.) is a reasonable and narrowly tailored means of promoting that interest.

Public contracts will receive stricter scrutiny, especially if the legislation reduces the contractual burdens on the state.

Neither the state nor the federal gov't may pass an ex post facto law. An ex post facto law retroactively alters the criminal law in a substantially prejudicial manner so as to deprive a person of any right previously enjoyed for the purpose of punishing the person for some past activity.

• A statute retroactively alters a law in a substantially prejudicial manner if it:
• -- makes criminal an act that was innocent when done;
• -- prescribes greater punishment for an act than was prescribed for the act when it was committed; or
• -- reduces the evidence required to convict a person of a crime from what was required at the time that the act was allegedly committed.

Mere procedural changes in state law will not necessarily trigger the ex post facto clause.

A modified law can be applied to a crime committed before the law's modification if the defendant had notice of the possible penalty and the modified law does not increase the burden on the defendant.

A legislative act that inflicts punishment without a judicial trial upon individuals who are designated either by name or in terms of past conduct (which acts to define who those particular persons are).

Both federal and state gov'ts are prohibited from passing bills of attainder.

These provisions require both judicial machinery for trial and punishment of crime and definition of criminal conduct in such general terms as to ensnare within the definition a single individual or small group for punishment because of past behavior.

Under the DP clauses of the 5th and 14th amendments, retroactive legislation or other gov'tal action may be, but is not necessarily, a violation of the constitution. The Q of whether a retroactive law violates due process is a substantive due process issue. If the law does not relate to a fundamental civil right, the retroactive law should be upheld if it is rationally related to a legitimate gov't interest.