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06/02/2014

Richard Re: The Due Process Exclusionary Rule (with a Response)
Michael Ramsey

In the current issue of the Harvard Law Review, Richard M. Re (UCLA) has the article The Due Process Exclusionary Rule: A new textual foundation for a rule in crisis (127 Harv. L. Rev. 1885 (2014)).  Here is the abstract:

As the Supreme Court continues to cut back on and perhaps eliminate Fourth Amendment suppression, the exclusionary rule has entered a new period of crisis. The rule’s greatest vulnerability today stems from the consensus that it can be justified only based on policy arguments from deterrence or atextual values like judicial integrity. Instead of pursuing those prevailing theories, the exclusionary rule’s defenders should draw on arguments centered on constitutional text and historical change.

In the Harvard Law Reveiw Forum, Albert Alshuler (University of Chicago) has this response:  Regarding Re’s Revisionism: Notes on The Due Process Exclusionary Rule (127 Harv. L. Rev.  F. 302 (2014).  It begins:

At least initially, Richard Re’s argument for grounding the exclusion of unlawfully obtained evidence on the Due Process Clauses of the Fifth and Fourteenth Amendments looks fresh and powerful. As originally understood, these clauses “require[d] that when the courts or the executive act to deprive anyone of life, liberty, or property, they do so in accordance with established law.” Because the police do not act in accordance with established law when they violate the Fourth Amendment, deprivations of liberty may not rest on their unconstitutional actions.

Re says that his argument should appeal to “new” originalists, and his view that the Due Process Clauses originally required adherence to positive law seems correct. His efforts to address the difficulties posed by this argument, however, lead him away from originalism. In addition, he proposes unfortunate restrictions of both constitutional requirements and the exclusionary remedy.

(And Part I is called, rather ambitiously, "The Original Meaning of Due Process").

Further note:  Richard Re blogged on his article a while back at Volokh Conspiracy, which we neglected to highlight, but it's well worth reading.