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.