I retract nothing of my general praise yesterday of William Tucker, but his Standard article on the past and future of the Fourth Amendment exclusionary rule is marred by a couple of flubs of constitutional reasoning or history (I only read the piece with real care after getting my print copy of the magazine today).
First, he opens by remarking that in the Hudson v. Michigan ruling two months ago, the Supreme Court held that “police did not violate the Fourth Amendment.” But that’s not what the Court said. In fact, since Michigan’s counsel conceded such a violation, “the issue here,” as Justice Scalia wrote, “is remedy” and nothing else. Granting a violation of constitutional rights by the police, was exclusion of evidence a necessary or correct remedy? This distinction between violation (did one occur?) and remedy (what shall be done?) is in fact pretty important, both in reasoning about the Fourth Amendment and in thinking about its history. Contrary to an impression Tucker gives later in his article, the Mapp v. Ohio decision in 1961 was not the first instance in which the Court held the Fourth Amendment applicable to the states. That had been done in Wolf v. Colorado in 1949, but Mapp applied the exclusionary remedy (in force in federal cases since 1914, as Tucker notes) to the states for the first time.
Tucker’s second mistake is a simple historical one. He notes that when Mapp came before the Supreme Court, President Kennedy had recently replaced Justice Felix Frankfurter by appointing Arthur Goldberg. Nope. Mapp was decided on June 19, 1961, and Justice Frankfurter (who dissented—he’d written the Wolf decision) served another full year beyond that, with Goldberg taking his oath to fill Frankfurter’s vacated seat on October 1, 1962. Perhaps Tucker is led astray by a source he relies on later, when he cites Alan Dershowitz’s The Best Defense and notes that Dershowitz “was clerking for Justice Goldberg when Mapp was decided.” Dershowitz did indeed clerk for Goldberg, but later; in 1961 he was still a law student. Perhaps he he mentions his clerkship, and his having been influenced by Mapp as a defense lawyer, in close proximity in this memoir (which I don’t have), and Tucker misunderstood him.