Fundamental rights, takings and ex post facto

The Fast Floor: Vocabulary Before the Authority

Hold the names and shape of the doctrines: voter qualifications, ballot access, poll taxes, racial voting restrictions, one-person-one-vote, durational residency, interstate travel, Heller, Bruen, physical taking, regulatory taking, Penn Central, Lucas, exaction, Nollan, Dolan, Koontz, public use, just compensation, and the Calder ex post facto categories.

Hold the order of questions, not exact wording. First identify the government action and the protected interest. Then classify the claim: selected fundamental right, taking, or retroactive criminal punishment. Reach for the supplied rule, locate its operative language, test each element, and check exceptions.

You do not have to hold exact element wording, exception lists, or numbered subsections. The voting, travel, arms, takings, and ex post facto vocabulary and decision sequence are the floor you should have available quickly.

Voting and Ballot Access: Who May Vote and How the Ballot Opens

A problem is live when a state changes who may register, imposes a fee or waiting period, rejects a candidate or party from the ballot, uses a racial qualification, or gives one district more voting power than another.

States may establish reasonable voter qualifications, including citizenship, age, and residence. But a state may not deny voting because of race or sex. A poll tax is forbidden in federal elections and, under equal protection, in state elections. Racially discriminatory voting rules and grandfather clauses are invalid.

Ballot-access restrictions are tested by the burden imposed. A severe burden requires a compelling governmental interest and narrow tailoring. A reasonable, nondiscriminatory restriction generally survives if supported by important state interests. Ask whether the rule blocks ordinary voters, excludes a candidate or party, or merely regulates orderly elections.

One-person-one-vote requires substantially equal population in state and local legislative districts. Compare the population represented by each elected legislator, not merely the geographic size of districts. The principle generally does not require equal population for statewide executive or judicial offices. A legislature cannot justify major population disparities simply by pointing to county or geographic boundaries.

Movement Across State Lines: Residence Cannot Become a Penalty

The constitutional right to interstate travel protects entering and leaving a state, being treated as a welcome resident, and receiving equal treatment after becoming a resident. The classic trigger is a law denying welfare, medical care, or another public benefit to newcomers because they have not lived in the state for a specified period.

A durational residency requirement that penalizes a recent arrival ordinarily violates the right to travel. Distinguish it from a reasonable requirement that a person actually establish residence before voting or receiving a benefit. The question is whether the rule verifies present residence or makes migration costly by withholding a benefit solely during a fixed waiting period.

Other substantial burdens on movement, such as discriminatory fees imposed on people who cross state lines, receive heightened scrutiny. A neutral rule with only incidental effects is less likely to violate the right.

The Second Amendment After Bruen: Text First, History Next

A firearms problem is triggered by a law restricting possession, carrying, purchase, registration, or location of a weapon. Under District of Columbia v. Heller, the Second Amendment protects an individual right to possess firearms for lawful purposes, including self-defense. Under New York State Rifle & Pistol Association v. Bruen, begin with the text: does the person’s proposed conduct involve keeping or bearing arms covered by the constitutional text?

If yes, the conduct is presumptively protected. The government must then show that the restriction is consistent with the Nation’s historical tradition of firearm regulation. Do not begin with ordinary means-end scrutiny or ask whether the law is merely reasonable.

The historical comparison looks for a relevantly similar tradition, not an identical historical twin. Founding-era practice is central, with later history potentially informative. The government may regulate sensitive places and may prohibit possession by some dangerous or disqualified persons, but a modern restriction cannot be justified only by asserting public safety. Objective licensing rules may survive; discretionary systems that require officials to show special need are suspect under Bruen.

Property Taken or Regulated: Classify Before Balancing

The first fact to notice is what the government demanded or changed: possession, occupation, a permit condition, all economic use, or merely the value and uses of land.

A permanent physical occupation, including a required public easement, is ordinarily a taking without regard to economic loss. A regulatory taking uses Penn Central: economic impact, interference with distinct investment-backed expectations, and the character of the government action. No single factor controls. A broad program adjusting benefits and burdens is less likely to be a taking than a physical invasion.

Under Lucas, removing all economically beneficial use is ordinarily a taking, unless the prohibited use was already barred by background principles of state property or nuisance law. A partial loss of value remains a Penn Central question.

An exaction is different from an ordinary regulation. Under Nollan, the permit condition must have an essential nexus to a legitimate governmental purpose. Under Dolan, its nature and extent must be roughly proportional to the project’s anticipated impacts, with an individualized determination. Koontz extends the analysis to monetary demands and to permit denials used to enforce the demand.

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Use this supplied authority:

A regulatory taking is determined by considering economic impact, interference with distinct investment-backed expectations, and the character of government action. No single factor controls. A broad public program adjusting benefits and burdens ordinarily weighs against a taking, while a physical occupation weighs toward one. A taking requires just compensation. Public use is a separate question from compensation.

A city adopted a historic-preservation ordinance covering 200 buildings in a designated district. The ordinance prohibited the owner of a 1920 house from demolishing it and constructing a thirty-story apartment building. The owner could continue living in the house or rent it, but the property’s market value fell by 30 percent. The owner had bought the property thirty years earlier as a family residence and had never submitted plans for a high-rise. The ordinance required no public access and authorized no physical occupation.

A different route:

1. A state requires newcomers to live there for one year before receiving basic medical benefits. Answer: likely unconstitutional, because the fixed waiting period penalizes interstate travel rather than verifying present residence.
2. A city requires every apartment permit applicant to dedicate a public trail easement unrelated to the project’s effects. Answer: likely an invalid exaction, because the required connection is missing.
3. A law increases the punishment for conduct completed before enactment. Answer: prohibited ex post facto law, because it retroactively increases punishment.

An ex post facto problem appears when a legislature applies a later criminal law to earlier conduct. Calder identifies four categories: making previously innocent conduct criminal, aggravating a crime (making it greater than when committed), increasing punishment, and changing evidentiary rules to make conviction easier.

The safeguard applies to criminal or punitive enactments, not ordinary civil regulation. A civil label is not conclusive: examine purpose and effect, and treat a nominally civil measure as punitive when its punitive character is so clear that the civil label cannot control. A retroactive licensing, benefits, or regulatory rule is generally permissible if it is genuinely nonpunitive. Ask first whether the enactment operates retroactively, then whether it falls into a Calder category, and finally whether the civil characterization is genuinely nonpunitive.

Run this sequence:

1. Identify the government action and the affected interest.
2. Route the claim to voting, travel, arms, property, or retroactive criminal punishment.
3. For voting, classify qualification, ballot access, poll tax, racial restriction, or district-population issue.
4. For property, test physical taking, exaction, total loss, or Penn Central, then ask public use and compensation.
5. For retroactivity, test each Calder category and the punitive-versus-civil distinction.
6. Read the supplied authority for operative language and exceptions, then map each fact to it.

High-Yield Points - ⚡ Biggest Takeaways

Durational residency penalties burden interstate travel. Bruen asks for text coverage followed by historical-tradition justification. Penn Central balances economic impact, expectations, and government action character. Exactions require essential nexus and rough proportionality. Calder prohibits retroactive criminalization, aggravated punishment, increased penalties, and conviction-facilitating evidence changes.