Thomas B. McAffee

Professor of Law
Expertise: Constitutional law, Constitutional history

Biography

McAfee, a professor in the William S. Boyd School of Law, has taught law for 30 years. He focuses on issues of individual rights as well as "structural" issues such as separation of powers. 

He is widely published on the subject of implied constitutional rights and a leading authority on the historical and interpretive issues concerning the Ninth Amendment — the provision that secures other rights "retained by the people." This provision has been used by the Supreme Court in "finding" unenumerated fundamental rights and adding them to those found within the Bill of Rights.

But, he notes, history demonstrates that the other rights "retained" by the people referred to all the individual prerogatives secured by the federal Constitution's granting of enumerated and limited powers. It was not intended to empower interpreters of the law to simply "make up" new limitations on government powers; it was designed only to ensure that the national government did not exceed the powers they were actually granted.  

Beyond the Ninth Amendment, there is a traditional practice of inferring some limits on government in favor of personal rights claims based on the express grant of protection to "life, liberty, and property" in the Due Process Clause. When courts use this device as a means to prevent arbitrary, pointless, and harmful government actions, it has served a useful purpose. But when courts have inferred fundamental rights and required compelling government interests to justify laws impacting on such rights, it has acted illegitimately, both morally and politically. 

McAffee's work has developed the themes that much of what makes our political/legal order work are the features that display real commitment to the rule of law. Thus the power of courts to invalidate acts of the political branches that run roughshod over the rights guaranteed elsewhere in the text — the power of judicial review — is a feature that prevents arbitrary government more than provisions that state that we have such rights.

Education

  • B.S., University of Utah
  • J.D.,University of Utah, S.J. Quinney College of Law

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law, politics (national)

Thomas B. McAffee In The News

Las Vegas Review Journal
August 31, 2019
Former Senate Majority Leader and fellow Nevadan Harry Reid has mostly stayed out of politics since his retirement two and a half years ago. So it’s significant that in a recent interview he pinpointed the antiquated structure of our federal courts as one of the obstacles impeding comity and progress in Washington.
Nevada Current
February 28, 2019
A new judge has been confirmed to sit on the powerful federal appeals court that oversees Nevada, and Democrats are furious about it.
KSNV-TV: News 3
August 15, 2017
The recent tragedy and clashes in Virginia have many wondering about laws that may have been violated versus constitutional rights. Among them, Freedom of Speech and how it pertains specifically to UNR student Peter Cvjetanovic, who was among the White Nationalist ralliers carrying torches on August 12.
Associated Press
February 29, 2016
Nevada Gov. Brian Sandoval said Thursday he is not interested in being considered for the Supreme Court vacancy — a decision that foils one route President Barack Obama might have had to breach Senate Republicans’ planned blockade of any election-year confirmation.

Articles Featuring Thomas B. McAffee

Constitution
Campus NewsSeptember 9, 2016
Boyd School of Law professors discuss presidential powers and UNLV's upcoming Constitution Day event.
image of book cover
ResearchNovember 1, 2008
Law professor Thomas B. McAffee discusses the history, context, and impact of the Ninth and Tenth amendments to the U.S. Constitution, which focus on the powers held by the states and by the people.