Professor Challenges Traditional Legal Thought with Newest Projects

William S. Boyd School of Law Professor Thomas McAffee’s current scholarly works challenge the way legal scholars have traditionally viewed implied fundamental rights and how a recent presidential administration has viewed the war powers.

“Most of the scholarship on the Ninth Amendment has been mainly wrong,” McAffee said. “The largest percentage of scholarly works has presumed that its reference to other rights retained by the people is a reference to unenumerated rights and may relate to the natural rights thought to be inherent. I am convinced that the text was referring to all the rights that were secured by the system of enumerated powers granted by the states.”

The Ninth Amendment, McAffee said, should be read as a companion to the 10th Amendment—the “twin guardians of federalism.” McAffee’s current research explores that idea, along with some of the points made in the book “The Lost History of the Ninth Amendment” by Kurt T. Lash. McAffee hopes to update a law review article he wrote in 1990 for the Columbia Law Review on the subject, in light of some of the more current interpretations of the Ninth Amendment.

Originally, McAffee explained, Congress sent out 12 proposed amendments. Two of the 12 failed, and the remaining 10 comprise what we now know as the Bill of Rights.  However, much of the history of the Ninth Amendment had become lost because of semantics.

“It became habitual among legal scholars in the first third of the 19th Century to refer to the Bill of Rights with the amendments proposed by Congress. Judges used to refer to the ‘11th Proposed Amendment’ …  what we now know as the Ninth Amendment,” McAffee said.

McAffee said that most of the case law prior to the Griswold v. Connecticut decision, which most legal scholars point to for an interpretation of the Ninth Amendment, seems to share the assumption that the Ninth Amendment is a federal provision. His intention is to write an article about the original reading of the Ninth Amendment, 20 years after his first. In addition, he intends to explore the ways in which he feels Lash “basically got it wrong too” in “The Lost History of the Ninth Amendment.”

“There’s stuff I’ve become aware of that I didn’t even know of when I wrote my original article,” McAffee said.

In addition, McAffee is working with Professor Christopher L. Blakesley on a book about justiciability and national security issues involving the war powers. In the book, the professors are exploring University of Berkley School of Law Professor John Yoo’s interpretation of the president’s war powers. Yoo was an official in the United States Department of Justice during the Bush Administration. Yoo’s memos on enhanced interrogation techniques broadly interpreted the president’s war powers.

McAffee said that the president’s powers during war time, as defined by the Constitution, include how war should be fought and what strategies should be used.

“The question is, are there some issues that relate to tactics and strategy that are still entirely within the scope of the legislative powers held by Congress?” McAffee said.

The book will explore the administration’s decision to use enhanced interrogation techniques and the president’s role during times of war.

In addition, McAffee is working on an article for the Nevada Law Journal about Terry v. Ohio, a U.S. Supreme Court decision that permitted law enforcement officials to stop and search people for “reasonable suspicion.” McAffee will write about how the decision lends itself to the possibility of racial profiling.

“(The decision) was one of our unhappier results, I think,” McAffee said.