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The Brown Symposium – An Introduction, Thomas B. Mcaffee

Scholarly Works

This article is an introduction to a symposium sponsored by Southern Illinois University regarding Brown v. Board of Education.

Taking Liberties With The First Amendment: Congress, Section 5, And The Religious Freedom Restoration Act, Jay S. Bybee

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In 1993 Congress enacted the Religious Freedom Restoration Act (“RFRA”), which provided that government, including the United States and the states, “shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability” except where the government can demonstrate that the burden furthers “a compelling governmental interest” and is “the least restrictive means of furthering that interest.”

Unfortunately, whatever consistency RFRA might bring to the substance of church-state relations comes at the expense of clarity in federal-state relations. This is unfortunate because the First Amendment does not address church-state relations; it concerns …

Substance Above All: The Utopian Vision Of Modern Natural Law Constitutionalists, Thomas B. Mcaffee

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Modern natural law constitutionalists assert that the Constitution, properly understood, includes a kind of general trump card in the form of a moral reality which provides (or is, at any rate, thought to provide) a measure of all positive legal acts--whether framed in terms of the values of natural equality, natural rights, or “simple justice.”

This article explores why “trump card” natural law constitutionalism cannot by its nature adequately confront crucial issues of institutional design and democratic theory. In thus putting questions of moral substance ahead of crucial issues of authority, natural law constitutionalism appears to rest on a naive, …

Brown And The Doctrine Of Precedent: A Concurring Opinion, Thomas B. Mcaffee

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This article is part of a symposium sponsored by Southern Illinois University regarding Brown v. Board of Education. In this article, the author addresses the question of what opinion he would have written had he been a justice on the U.S. Supreme Court when the case was decided.

The author indicates he would have concurred in those opinions finding a violation of the Equal Protection Clause of the Fourteenth Amendment in Brown v. Board of Education. The author finds persuasive the argument that any other decision would permit states to evade the core purpose of the Fourteenth Amendment. Nevertheless, …

Comment, The Augustan Constitution And Our Natural Rights Tradition: Is There A Conflict?, Thomas B. Mcaffee

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Professor Hoffheimer has provided us with a striking picture of two important strands of our constitutional heritage. The first, which he labels “Augustan constitutionalism,” descended from classical political thought and the English constitution. Its focus is on the governmental powers that it legitimates, and its themes relate to the forms of government; in the American context, this means that its focus is on separation of powers, checks and balances, and (in general) the problem of organizing and dividing government authority. The second, which he calls the “natural rights tradition,” roots government's legitimacy--and indeed its origin and purpose--in the protection of …