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Constitutional Law

Constitution

1995

University of Nevada, Las Vegas -- William S. Boyd School of Law

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The Brown Symposium – An Introduction, Thomas B. Mcaffee Jan 1995

The Brown Symposium – An Introduction, Thomas B. Mcaffee

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


Substance Above All: The Utopian Vision Of Modern Natural Law Constitutionalists, Thomas B. Mcaffee Jan 1995

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 Jan 1995

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 ...