Chapter 11

MISCELLANEOUS CLAUSES:
14TH AM. PRIVILEGES OR
IMMUNITIES; TAKING; CONTRACT; RIGHT TO BEAR ARMS; EX POST FACTO; BILLS OF ATTAINDER

This chapter considers several clauses that have little in common except that they protect individuals against specific types of government conduct. The most important concepts in this chapter are:

• Privileges or Immunities: The 14th Amendment has a “Privileges or Immunities” Clause. But this clause is very narrowly interpreted: it only protects the individual from state interference with his rights of “national” citizenship (principally the right to travel from state to state and the right to vote in national elections).
• “Taking” Clause: The Fifth Amendment’s “Taking” Clause provides, essentially, that the government may take private property under its power of “eminent domain,” but if it does take private property, it must pay a fair price.
  • Land-use regulations: What the government calls mere “regulation” may occasionally amount to a “taking” for which compensation must be paid. This happens mostly in cases of land-use regulation. For a land-use regulation to avoid being a taking, it must satisfy two requirements: (1) it must “substantially advance legitimate state interests”; and (2) it must not “deny an owner economically viable use of his land.”
• “Contract” Clause: The “Contract” Clause provides that “no state shall… pass any… law impairing the obligation of contracts.” The meaning of this Clause depends on whether the government is impairing its own contracts or contracts between private parties:
  • Public contracts: If the state is trying to escape from its own financial obligations, then the Court will closely scrutinize this attempt: the state’s attempt to “weasel” will be struck down unless the modification is “reasonable and necessary to support an important public purpose.”
  • Private contracts: But when the state is re-writing contracts made by private parties, the state merely has to be acting “reasonably,” a much easier-to-satisfy standard. (And if the state’s action is a generally applicable rule that has only the incidental effect of impairing contracts, the Contract Clause does not apply at all.)