Law Commons^™

The Constitution As Based On The Consent Of The Governed—Or, Should We Have An Unwritten Constitution?, Thomas B. Mcaffee

Scholarly Works

It is useful to embrace continuity in describing basic differences we have in giving effect to the Constitution, especially if particular ways of communicating help us convey and understand what is at stake. The individual who originated the term “non-interpretivist” to describe judicial review implementing the unwritten constitution, for example, continues to believe that the best approach to constitutional interpretation is not “textualist,” but is properly characterized as “supplemental.” In his view, “much American constitutional adjudication, including but not limited to decisions under due process liberty and the right of privacy, involves the interpretation of an unwritten and essentially common …

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, …

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

Scholarly Works

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, …

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 …