The Majestic and the Mundane: The Two Creation Stories of the Exclusionary Rule

Abstract:     
In Herring v. United States, Chief Justice Roberts and Justice Ginsburg articulated dramatically different visions of the exclusionary rule and its judicial heritage. Justice Roberts, writing for the five-justice majority, framed the exclusionary rule as simply a judicial rule designed solely to deter police misconduct. In her Herring dissent, Justice Ginsburg alluded to a very different vision, a “more majestic” conception of the exclusionary rule. As noted dismissively by Chief Justice Roberts, however, Justice Ginsburg relied almost exclusively on dissents to support her “more majestic conception” of the exclusionary rule. Ginsburg’s limited description of the majestic conception is curious because the historical development of the exclusionary rule is, in fact, replete with grand, dramatic, and yes, majestic rhetoric so passionate in tone that for judicial writing it borders on purple prose. Starting with Boyd v. United States, the first case recognizing the exclusionary rule in 1886, and on through the first half of the twentieth century, the Court’s opinions would make Chief Justice Roberts blush with the boldness of their claims for the exclusionary rule. How, then, did this dramatic change in focus happen? The difference between Roberts’ opinion and Ginsburg’s opinion is more than simply a different take on the history of the rule or a different reading of the case law. Their opinions reflect two distinct “creation stories” about the exclusionary rule, stories that not only describe the history of the rule very differently, but also have completely different articulations of the rule’s purposes and its place in the constitutional structure. This Article will explore the rhetorical and historical arc of these two competing creation stories in identifying when the majestic conception lost its dominance and the evidentiary rule conception gained preeminence; in doing so, we hope to glimpse some insight into how a formally grand constitutional concept became relegated to the obscurity of dissents, footnotes, and law review articles.

Number of Pages in PDF File: 44

Keywords: Exclusionary rule, Mapp, Herring, Judicial interpretation, Federation

JEL Classification: K10

Accepted Paper Series