Saturday, January 14, 2006

The non-retrogression principle

A good question was asked during Amar's review session, relating I believe to the 14th amdt and the role of congress under section 5 in providing remediation or in determining the substantive rights themselves--both of these especially in relation to the judicial role. If congress extends a protection past what the SC says is necessarily protected by the constitution, can congress later take away that protection?

There's a good paper on this, saying the Romer v. Evans and some other cases seem to indicate that there's a "non-retrogression" principle that says the judiciary will effectively constitutionalize protections generated by congress, refusing to later relax them even if congress changes its mind.

Take a look: 86 Calif. L. Rev. 1211.

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