The Corner

Excluding Facts

My column has elicited some interesting email. I found this one intriguing:

Interesting article today on the exclusionary rule.  As usual, you approach the question with powerful common sense.  I’d like to see more discussion of this, particularly as it pertains to alternative means of protecting the innocent from illegal searches. 

I seem to recall reading some work several years ago by Akhil Amar on the subject, in which he argues that at the time the Fourth Amendment was written, it was understood that officers who engaged in illegal searches and seizures would be subject to civil suit.  He goes on to argue (if I recall correctly) that a judicial search warrant was meant to shield officers from such suit.

And I found this one amusing. I should note, it’s from a fairly regular e-pest:

The conservative position on the fourth amendment is that if the state is going to arrest you, they better have their ducks in a row. That has been the bedrock of our system for almost 800 years now. Sad to see self described conservatives call for greater police power, even when the police are right for the wrong reasons. As usual,

Jonah = massive fail

I wonder what innovation of the police/national secuity state the noble heir of Bill Buckley will shill for next?

Me: I wouldn’t post this except for the fact that it offers a helpful opportunity to make a larger point. Almost every day, I get email from people chastising me (and/or NR) for deviating from the principled conservatism of Buckley, Goldwater, Reagan and NR itself. Sometimes, thoughtful critics have a real point. More often, guys like this one simply don’t know what they’re talking about. NR has been running pieces against the expansion, abuse and, often, existence of the exclusionary rule and even Miranda.

Here are some examples, pretty much at random. Here’s Bill Buckley on the eve of the 1972 election:

I’d like to know: How does Candidate McGovern stand on the issues? Richard Nixon has certainly not stopped crime in America, but he has sent to the Supreme Court two realists who will almost certainly vote in a direction other than Mapp, or Miranda: in the direction of return to effective justice. In the direction, if you prefer, of Justice Cardozo, who one one famous occasion reminded us that the purpose of a trial is to determine whether or not the accused is guilty, rather than whether the constable has blundered. 

Here he is in 1973, in the context of the crime issue in New York State:

And let the reformers commit themselves on the so-called “exclusionary

rule .” That rule, effected by the Warren Court in 1961 by a slender

majority of S to 4, has had the effect of turning many trials into investi-

gations not into the guilt or innocence of the defendant, but the legality

or illegality of the methods by which he was apprehended. For generations

it was accepted that even tainted evidence could be considered by the jury,

on the theory, as one Justice put it, that the question ought to be – –

Is the man guilty, not, Did the constable err .

In the 1990s, the magazine routinely — with one exception, as far as I can tell — ran pieces (including by NR’s go-to guy on crime Ernest Van Den Haag) making similar arguments to the one in my column. Here’s John O’Sullivan in 1990:

The exclusionary rule, however sanctified by constitutional terminology, is a relatively recent nonsense dating from the First World War. It supposedly exercises, in Mr. Brennan’s words, a “deterrent effect on police misconduct” by excluding evidence that the police have obtained illegally. But releasing murderers, muggers, and other criminals onto the streets by suppressing evidence against them is surely a very roundabout method of encouraging good police behavior. It punishes the public far more than the erring police. Indeed, it does not punish the police at all. A policeman suffers no penalty when a court rejects evidence he has obtained illegally. If he were to face either police discipline or legal penalty,that might indeed deter misconduct. But that could be done without excluding evidence and freeing a criminal.

A while back, Ramesh and I addressed the tendency among liberals and some self-described conservatives to argue that the previous generation of conservatives were just awesome, it’s just the sad state of today’s crop that’s lamentable. I certainly don’t mind it when people praise the giants who came before us, but it would be nice if they actually knew what those giants had to say.

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