Law Commons^™

Overcoming Lochner In The Twenty-First Century: Taking Both Rights And Popular Sovereignty Seriously As We Seek To Secure Equal Citizenship And Promote The Public Good, Thomas B. Mcaffee

Scholarly Works

Professor McAffee reviews substantive due process as the textual basis for modern fundamental rights constitutional decision-making. He contends that we should avoid both the undue literalism that rejects the idea of implied rights, as well as the attempt to substitute someone’s preferred moral vision for the limits, and compromises, that are implicit in—and intended by—the Constitution’s text. He argues, moreover, that we can largely harmonize the various goals of our constitutional system by taking rights seriously and understanding that securing rights does not exhaust the Constitution’s purpose.

Federalism And The Protection Of Rights: The Modern Ninth Amendment’S Spreading Confusion, Thomas B. Mcaffee

Scholarly Works

Blindness to a basic understanding of the framers' design of our federal structure is largely responsible for the confusion that surrounds our understanding of the Ninth Amendment. The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In Griswold v. Connecticut, Justices Black and Stewart explained in separate dissenting opinions that the Ninth Amendment's reference to the other rights “retained by the people” alluded to the collective and individual rights the people “retained” by virtue of granting limited, enumerated powers to the national government. …

Prolegomena To A Meaningful Debate Of The “Unwritten Constitution” Thesis, Thomas B. Mcaffee

Scholarly Works

Seventeen years ago Professor Grey launched the modern debate over the idea of an unwritten Constitution by suggesting that the key to defending modern fundamental rights decision-making might be to rediscover the founding generation's commitment to natural law and unwritten sources of basic rights. Some modern Supreme Court decisions, Grey suggested, might be better justified by reliance upon the methodology suggested by Justice Chase's famous opinion in Calder v. Bull than by looking to the justification for judicial review offered by Chief Justice Marshall in Marbury v. Madison. Grey's arguments for the unwritten Constitution idea has struck a chord …

Note, A Dialogue On The Political Question Doctrine, Thomas B. Mcaffee, Christopher A. Johnson

Scholarly Works

Legal scholars have generally discussed the political question doctrine as part of the larger debate over the legitimacy of judicial review. Points of discordance aside, scholars have agreed that the doctrine is “a classic technique of judicial avoidance, a way of allowing a governmental decision to stand without involving the Court in supporting its legitimacy.” Thus, debate over the objectives, legitimacy and scope of the doctrine has traditionally proceeded from the unquestioned assumption that there exists a body of law which justifies judicial abstention from deciding some types of issues.

In recent years, however, some scholars have challenged the assumption …