Not being particularly adept at Originalist rationales, nor sufficiently versed in American constitutional history, the open wound left by Liptak’s ill-conceived article requires a far more scholarly analysis than I could provide.  So I thanked my lucky stars that Orin Kerr decided to step up to the plate and swing.

Over at Volokh, Orin has hit a home run with his analysis of the exclusionary rule, from a historical originalist context, and made a great argument in favor of the judge-made remedy being fully consistent with how the founding fathers would have addressed the issue.

 It is widely agreed that at common law, the primary way of enforcing search and seizure rules was through civil trespass suits. There were no professional police in those days, but agents of the King could get a warrant permitting them to lawfully search a home for a warrant. If an agent of the King broke into your house and searched it without a valid warrant, your remedy was to sue the agents for trespass into your home.

Critics of the exclusionary rule generally rely on this history to say that the U.S. Supreme Court invented the exclusionary rule out of thin air. The exclusionary remedy is not found or hinted at in the common law trespass cases, the argument runs, and it does not appear in the Constitution itself.

But early warrants permitted only the search and seizure of contraband, not evidence.  Thus, if evidence was seized, it was seen as “stolen” by the King’s agent and the remedy would be its return.  Upon its return, it would not be available as evidence against the person from whom it was “stolen” and, in that respect, suppressed.

Thats’ just what happened in Weeks v. United States, 232 U.S. 383 (1914), the case that is generally understood as having introduced the exclusionary rule. The police in Weeks broke into Weeks’s home without a warrant and took his papers away. Although the timing of events isn’t exactly clear, Weeks was charged with a crime based on the papers and he filed suit seeking return of the papers on the ground that the government had no right to possess them. That is, Weeks wasn’t seeking “suppression” of the evidence: He was seeking a return of his stuff that the government had unlawfully stolen from him. The trick was that by getting the property back, Weeks could keep it away from the government: The government needed to possess the property to move for its admission in court.

See?  The exclusionary rule isn’t just the only remedy with any potential to have an impact on the cops, but one that an originalist can love.

And as long as we’re on the subject, bear in mind that the rule protects the innocent as well as the guilty.  How many people are subject to unconstitutional searches where nothing is found and they are sent on their way?  These people never show up in anyone’s statistics, because “nothing happened” that doesn’t end up in a prosecution.  Without a hard incentive to comply with the Constitution, there is nothing to stop cops from searching and seizing at will, and sorting the evidence (if found) out later.

This is really all about protecting the innocent, you see.  Not those evil criminals and terrorists.  They just come along for the ride.