[EL] Anti-retrogression - Ned Foley

Mon Mar 8 09:53:06 PST 2021

Wondering how far this goes.

  *   Should we have a non-retrogression principle for the 2nd Amendment, particularly in light of the long history of government attempting to keep firearms out  of the hands of minority groups? So once a state has enacted a "shall issue" conceal & carry law, any effort to reinstate a "for cause" requirement is subject to heightened scrutiny? How about the right to be free of unreasonable search and seizure?
  *   If a state does tightens the criteria for administrative warrants to inspect business premises, is any backsliding to allow easier entrance for government inspectors acting on facially neutral criteria subject to non-retrogression?
  *   Once Congress has passed the Religious Freedom Restoration Act, any effort to narrow or repeal it is subject to a constitutional non-retrogression principle (so that cases like Hobby Lobby are no longer just about RFRA, but have a constitutional dimension)?
  *   If a state required 3/4ths to convict in a civil jury trial, then changed the law to unanimity, should any effort to "backslide" be subject to a non-retrogression principle? After all, the right to a jury trial has long been recognized as a fundamental right
  *   Should any new campaign finance regulation be subject to such a principle, since it is well-established that such regulation can violate a fundamental 1st Amendment right?

Asking for a friend.

Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Professor of Law
Capital University Law School
303 East Broad Street
Columbus, OH 43215
Phone: (614) 236-6317
Mobile:  (540) 287-8954

________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Gaddie, Ronald K. <rkgaddie at ou.edu>
Sent: Monday, March 8, 2021 4:47 AM
To: Graeme Orr <graeme.orr2008 at gmail.com>; law-election at department-lists.uci.edu <law-election at department-lists.uci.edu>
Subject: Re: [EL] Anti-retrogression - Ned Foley

        ** [ This email originated outside of Capital University ] **

The non-retrogression standard is solemnized in law as part of Sec. 5 of the Voting Rights Act. The neutering of the Sec. 4 trigger to indicate its scope of application has rendered it non-functioning. WHile not as broad as the Australina, provision, the concept has existed in U.S. voting rights law since 1965.

Keith Gåddie, Ph.D.
President's Associates Presidential Professor of Architecture & Journalism
Executive Faculty Fellow of the University of Oklahoma
Senior Fellow of Headington College <https://linkprotect.cudasvc.com/url?a=http%3a%2f%2fouheadingtoncollege.org%2f&c=E,1,sGZHEtZH5fvXCQpE-jurj-lDGLdMTmJmhDwNfKMlkaSfUOExzVF00-DGkjsMn4eT0VTNq6zb7KBku2T55e1ciP1SeMCFiqelZ64y_Xd4NfI,&typo=1>
General Editor, Social Science Quarterly

"I would like to build a University of which the football team could be proud." ~George Lynn Cross
________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Graeme Orr <graeme.orr2008 at gmail.com>
Sent: Sunday, March 7, 2021 8:11 PM
To: law-election at department-lists.uci.edu <law-election at department-lists.uci.edu>
Subject: [EL] Anti-retrogression - Ned Foley

Thanks Prof Foley for sharing that paper - it's a blockbuster!

The Australian High Court, starting in 2007, adopted an analogous, ratchet approach.   That is, of not just saying 'the lord that giveth can taketh away', but subjecting any back-peddling on previously established voting rights or processes to extra scrutiny.
The origin was in the prisoner franchise case where the question was normative.   https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1976140<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2furldefense.proofpoint.com%2fv2%2furl%3fu%3dhttps-3A__papers.ssrn.com_sol3_papers.cfm-3Fabstract-5Fid-3D1976140%26d%3dDwMFaQ%26c%3dqKdtBuuu6dQK9MsRUVJ2DPXW6oayO8fu4TfEHS8sGNk%26r%3ditJIms9G3wxvyGkmVqA7xg%26m%3dijke_mThn4N9q1zAktsFfP7OYE1V7VYuoDhHZNPbDV4%26s%3dHysTd5_t_CaeiC5sQu9JV_MO4W9lVtBDW8HxmDfamwY%26e%3d&c=E,1,VQkTEdhn-tnN5A1Zc0XYvXGjVPm8CbfYGyOwAUoN3xIYlCBEnn5QtQje5QuW-I1IB0iMYUFGwXihacerRrR0VcDkUsGSv7J2oeWJVSo6g6d2qrEIicrSCg,,&typo=1>
This was then developed into something like due process ('where's the evidence of clear necessity') in a more mechanical case.  Which struck down a law backtracking on the time allowed for electors to get registered.   https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1926493<https://linkprotect.cudasvc.com/url?a=https%3a%2f%2furldefense.proofpoint.com%2fv2%2furl%3fu%3dhttps-3A__papers.ssrn.com_sol3_papers.cfm-3Fabstract-5Fid-3D1926493%26d%3dDwMFaQ%26c%3dqKdtBuuu6dQK9MsRUVJ2DPXW6oayO8fu4TfEHS8sGNk%26r%3ditJIms9G3wxvyGkmVqA7xg%26m%3dijke_mThn4N9q1zAktsFfP7OYE1V7VYuoDhHZNPbDV4%26s%3dN7AR6SeDdTk6Ru1CePeW43s8v3fXOXb-5zjx6RS0EXc%26e%3d&c=E,1,vmbMlopoFCTVAzsax6lgEBCzOZbi_C6dRZ-6ewexlrk99jjJdaJcZWQu0AnPNc2l298XdiGX9zYwLkTf6mJwbUZH1ND3JJ8s-iMBLn2Z&typo=1>

I realise SCOTUS often doesn't look further afield than the union - and then maybe occasionally to India, Canada or EU.    But that this approach is now entrenched in a democracy with similar characteristics may be of interest.

Graeme Orr
Professor, Law
University of Queensland
Australia
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