Law Commons^™

A Critical Guide To The Ninth Amendment, Thomas B. Mcaffee

Scholarly Works

Since the Supreme Court's decision in Griswold v. Connecticut, thousands of law students each year have confronted a confusing debate over the meaning of the Ninth Amendment. Writing for the majority in Griswold, Justice Douglas included the Ninth Amendment among the sources for deriving the “penumbral” right of privacy. More central to this article, in a separate concurrence Justice Goldberg contended that the Amendment provided a basis for the discovery of fundamental human rights beyond those included in the text of the Constitution and the Bill of Rights. In response, the dissenting Justices, Stewart and Black, argued that …

Substantive Due Process And Free Exercise Of Religion: Meyer, Pierce And The Origins Of Wisconsin V. Yoder, Jay S. Bybee

Scholarly Works

In this paper the author examines the nature of parents' due process right to direct the education of their children and its relationship to the First Amendment. The article begins with the hardiest of the U.S. Supreme Court's early substantive due process decisions: Meyer v. Nebraska and Pierce v. Society of Sisters. Meyer struck down a Nebraska law forbidding the teaching of foreign language in public or private schools; Pierce struck down an Oregon law requiring attendance at public schools. Part I recounts that the laws in both cases were the result of complex forces, uniting groups as disparate …

Florida's Property Rights Act: A Political Quick Fix Results In A Mixed Bag Of Tricks, Sylvia R. Lazos

Scholarly Works

This Article discusses Florida’s 1995 Property Rights Act, which grants to private property owners an alternative cause of action, outside of takings law, when they are permanently denied reasonable use of their land by regulatory actions. The Act also grants alternative procedures for property owners, outside of the judicial and administrative process. Thus, the Act does not change Florida takings law nor does it alter the substance of Florida's sometimes controversial growth management laws.

This article reviews the political climate that made passage of the Act possible and places the property rights initiative in the historical context of populist politics. …

Originalism And Indeterminacy, Thomas B. Mcaffee

Scholarly Works

Perhaps the most universal objection to originalism is that it is impossible; that is, the materials relied upon by originalists simply do not yield determinant answers to any worthwhile questions. This indeterminacy objection lacks significant force for at least three reasons. First, the claim that the interpretive materials are always indeterminate vastly overstates the extent and importance of the uncertainties involved; consequently, originalism's critics understate the importance of the originalist canon as a tool for reducing the degree of indeterminacy in constitutional interpretation. Once it becomes clear that originalist methodology can provide some definitive answers, even if significant indeterminacy remains, …

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. …