Category: Issue 1, Volume 45

The Originalist Case for the Fourth Amendment Exclusionary Rule

The Fourth Amendment exclusionary rule has been the law of the land in all federal jurisdictions since 19141 and in all state jurisdictions since 1961. Yet critics continue to question the rule’s constitutional pedigree. Generations of conservative jurists and scholars have called for the rule’s abolition on “originalist” grounds. These scholars argue that the rule is of recent vintage, unsupported in the Fourth Amendment’s text, and disloyal to the Amendment’s original intent. In this paper, the author argues that exclusion is actually an ancient remedy, widely applied by courts in various contexts since the dawn of American history. … Read More