The Charter of its Own Existence

In the New York Times Editorial Notebook, Adam Cohen takes on the impending death of the exclusionary rule, as predicted after the Herring and Hudson decisions from the Supreme Court.  Noting that Chief Justice John Roberts, in his former life in the Reagan administration, had it out for Mapp v. Ohio, Cohen adds fuel to the fire that the end is coming.

The court carved out exceptions over the years, but the basic rule laid down in Mapp has endured for nearly five decades. Now, Chief Justice John Roberts’s conservative majority on the Supreme Court is working to undo the exclusionary rule in a more fundamental way. It’s been a longstanding interest of Mr. Roberts’s. As a young Reagan administration lawyer, he worked on what he described in a memo as a “campaign to amend or abolish” the rule.

Not surprisingly, Cohen takes the position that exclusionary rule must stand, despite its “flaws”.


There is no denying that the exclusionary rule allows a small number of criminals to go free because the police have blundered — which is certainly no minor matter. But the more faithfully the rule is applied, the more likely the police are to collect evidence lawfully.

As important as it is to convict criminals, the Supreme Court in Mapp rightly insisted that the Constitution must not be trampled in the process. “Nothing can destroy a government more quickly,” the court noted, “than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”

While I can appreciate the need for balance, acknowledgment that excluding unlawfully obtained evidence is not a perfect solution, this was about as weak an argument in favor of the exclusionary rule as I can imagine.  That’s it?  A platitude about disregarding “the charter of its own existence?”  Granted it’s true, but the charter of its own existence contains many demands on our government, including the protection of the safety of the citizenry.  What about the rest of the charter?  If that’s the best we can come up with, we can kiss the exclusionary rule good-bye.

Cohen’s limp defense of the exclusionary rule ignores far more serious, and pervasive, reasons to demand not only that the exclusionary rule remain vital, but robust.  The current Court’s watering down of the rule, beefing up the exceptions, establishes authority of the government to not merely ignore its own law at will, a proposition that some believe is entirely correct, but flies in the face of the express limitations imposed on government in its formation to prevent it from devolving into tyranny.  Hey, having fought a revolution to break from the economic binds of England, our founding fathers weren’t about to trust some new leader, whether Washington or Obama, with enough power to break down out doors.

The 4th Amendment is not a technicality to provide police with an incentive to behave themselves.  It is a shield for the ordinary citizen from government power.  While the Supremes justified Weeks and Mapp with the expectation that it would compel police to act accordance with law, that’s the sort of pap that makes for palatable doctrine when the reality on the street can’t be openly admitted.  Cohen briefly acknowledges this reality when addressing Justice Scalia’s “new professionalism” argument.


Despite Justice Scalia’s claims, police misconduct is rampant. In the last few years, the Atlanta and Oakland police departments have had major scandals over officers’ lying to obtain search warrants. In this same period, of course, the federal government engaged in an illegal domestic wiretapping program, the extent of which is still unknown.

But Cohen fails to connect the dots in his own point.  If five decades after Mapp the police still can’t manage to abide the law, then the exclusionary rule has failed to fulfill its salutary purpose.  This is false, of course, because its stated rationale never reflected its true purpose, the protection of people from police.  The Supreme Court’s recent reliance on the rationale to further eviscerate Mapp proves the point that the rationale is a fiction while the truth continues to smack real people upside the head everyday.

The exclusionary rule must exist for one very real, very hard reason:  Without it, we have absolutely no means of stopping the cops from breaking down our door at will.  Until someone devises a better way to prevent tyranny, we need it.  We need it desperately.

6 comments on “The Charter of its Own Existence

  1. Lee

    One of your best posts ever. Said so eloquently what I have been thinking ever since Liptak’s first piece appeared. The exclusionary rule exists in part as a deterrent toward cops, but first and foremost as a protective measure for the citizenry from the state.

  2. SHG

    Thanks Lee.  I’m fine playing with doctrinal rationales as long as we’re pretending to be lawyers, but when it’s used for public consumption, fictional doctrine doesn’t begin to cover the reality. 

  3. Anonymous

    Even though IANAL and its been a while since I read Weeks, the Fourth Amendment logically implies the exclusionary rule, no? If there is no penalty for its violation, it’s essentially worthless. Am I missing something? Exactly what arguments could be used to abolish exclusion without abrogating the Fourth?

  4. SHG

    Whether it logically implies the exclusionary rule (which I believe it must) is subject to debate, but beyond that, you are exactly right.  If not penalty to violate a right, then the right is meaningless.

  5. Lee

    However, unfortunately, there are many rights without a remedy. Also, the idiot’s response is that the person who has had their 4th Amendment rights violated can simple file a civil suit.

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