A Conservative House United: How the Post-Warren Court Dismantled the Exclusionary Rule

48 Pages Posted: 7 Aug 2017

See all articles by Morgan Cloud

Morgan Cloud

Emory University School of Law

Date Written: 2013


The Supreme Court first suppressed evidence obtained in violation of the Fourth Amendment more than 125 years ago, confirmed that such evidence must be excluded in all federal prosecutions 100 years ago, and applied that constitutional rule to the states in more than fifty years ago. In an important early case, Justice Holmes wrote that suppression of illegally seized evidence was a constitutional necessity because without it, the Fourth Amendment was reduced “to a form of words."

This view persisted for decades. But since the 1970s, the Supreme Court has devised doctrines rooted neither in the constitutional text nor its history that have transmogrified the exclusionary remedy from a core element of Fourth Amendment rights into a nuisance. The transformation has proceeded to the point where serious commentators ask whether the exclusionary remedy “is dead?”

Changes over time in the political views held by the changing roster of Supreme Court Justices help explain the derogation of the exclusionary remedy in recent years, but I propose these are but a part—and not the most important one at that—of the story.

More important are the changes in our fundamental views about the nature of law in theory and in practice. When the exclusionary remedy was first employed by the Supreme Court, American legal culture emphasized formal rule application; deployed property law to protect a range of legal rights, including those now classified under the label of privacy; and emphasized enforcement of individual constitutional rights, particularly Fourth Amendment rights, at the expense of government power.

The new theories, which generally fit comfortably within the boundaries of contemporary American legal pragmatism, now are so ubiquitous that they are employed—usually without conscious choice—by virtually all American lawyers regardless of their personal political ideologies. As a result, Justices holding diverse political views, including competing views about the suppression of evidence, appear to accept without question jurisprudential doctrines essential to the diminishment of the exclusionary remedy.

These doctrines are in many ways the converse of those that held sway a century ago. In contemporary law, formal rule application has been replaced by the use of flexible standards and methods, like interest balancing. Property rules that limited government power have been expunged whenever possible from Fourth Amendment theory and replaced by malleable concepts of “reasonableness.” And rights enshrined in the constitutional text have been reclassified as weak interests easily “outweighed” by government claims of necessity.

The ascendance of these jurisprudential ideas in American law is a more important explanation for the changes in exclusionary rule doctrine than are the political leanings of individual Justices. This Article explains how the original conception of the exclusionary rule was a logical product of the Constitution’s text, history, and the legal culture of the late nineteenth and early twentieth centuries. It then examines Warren Court cases that displaced the established system of Fourth Amendment rules rooted in property law and replaced it with pragmatist methods and reasoning that have come to dominate Fourth Amendment jurisprudence. Finally, it reviews post-Warren Court opinions that have diminished the exclusionary rule.

Suggested Citation

Cloud, Morgan, A Conservative House United: How the Post-Warren Court Dismantled the Exclusionary Rule (2013). Ohio State Journal of Criminal Law, Vol. 10, No. 475, 2013. Available at SSRN: https://ssrn.com/abstract=3013881

Morgan Cloud (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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