[EL] Anti-retrogression - Ned Foley

Mon Mar 8 18:21:25 PST 2021

John Hart Ely might have a distinction for Brad's first few
counter-examples.  Not sure about the last two.

On Tue, 9 Mar 2021 at 03:53, Smith, Bradley <BSmith at law.capital.edu> wrote:

> 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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