The Non-Retrogression Principle in Constitutional Law
Recent and otherwise unrelated Supreme Court opinions take a peculiar approach to defining constitutional norms. According to these opinions, government acts unconstitutionally when it reduces pre-existing protection of some favored interest, but not when it arrives at the same place via a different route. The direction of movement takes precedence over the substantive content of the law.
We call this general approach "non-retrogression." In its purest form, the non-retrogression principle holds that government may extend protection beyond what the Constitution requires, but it cannot retreat from that extension once made. While variations on non-retrogression have been sensibly employed in statutory contexts--most prominently, under Section 5 of the Voting Rights Act -- the article questions non-retrogression as a principle of constitutional law. After locating the birth of non-retrogression as a constitutional principle in Warren Court race cases, we describe its renaissance in recent constitutional cases, most prominently Romer v. Evans and the litigation over California's Proposition 209. The article proceeds to explore the doctrinal, conceptual, and jurisprudential weaknesses of non-retrogression as a principle of constitutional law. It compares non-retrogression to other constitutional doctrines that confuse procedure and substance and juxtaposes it to the jurisprudence of traditionalism. Finally, we suggest that the recent reemergence of non-retrogression is symptomatic of broader problems with the current Supreme Court's approach to constitutional law. While the Rehnquist Court borrowed from the Warren Court both the non-retrogression principle and the habit of judicial activism, the authors argue, it lacks a comparable agenda that would give direction to non-retrogression by pointing to which way is forward.