The exclusionary rule as Fourth Amendment judicial review.

• Author: Srinivas, Rohith V.

Few legal doctrines are cheered, jeered or even thought about as much as the Fourth Amendment exclusionary rule. This is largely because the rule's proponents--who want a robust rule--and opponents--who want to do away with it altogether--are miles apart when it comes to the rule's theoretical underpinnings. For its part, the Supreme Court has charted a middle course, retaining the rule as a quasi-constitutional remedy while limiting its application. But the Court's approach is analytically confusing and unsatisfying to most.

Notwithstanding all of this attention, the natural understanding of the doctrine has been largely overlooked. As a response to another branch's violation of the Constitution, the exclusionary rule is best understood as an aspect of judicial review. This Article offers a new and original comparison of the decision to exclude unconstitutionally obtained evidence with the decision not to apply unconstitutional legislation. The comparison reveals (1) that courts are obligated to exclude unconstitutionally seized evidence for the same reasons that they must refuse to apply unconstitutional legislation, and (2) from a conceptual perspective, the exclusionary rule is simply the form that judicial review takes in the Fourth Amendment context. Thus, the exclusionary rule should be understood not as a circumstances-dependent remedy but as a judicial obligation incumbent on courts to follow.

TABLE OF CONTENTS INTRODUCTION I. THE COMPARATORS A. The Exclusionary Rule B. Judicial Review II. THE CONSTITUTIONAL COMPARISON A. The Text 1. The Exclusionary Rule 2. Judicial Review a. The Arising Under Clause b. The Supremacy Clause c. The Oaths Clause B. Constitutional Structure C. Original Understandings 1. The Exclusionary Rule 2. Judicial Review III. THE CONCEPTUAL COMPARISON A. Two Steps: Determination and Invalidation B. Analytic Objections to the Exclusionary Rule ... and Judicial Review 1. Excessive Restoration 2. Insufficient Restoration 3. Punitive Weakness 4. Criminal Beneficiaries 5. Innocent Non-Beneficiaries 6. Lack of Proportionality 7. Impediment of the Court's Role CONCLUSION INTRODUCTION

Proponents of the exclusionary rule are playing a goal-line defense. (1) Over the last forty years, the Supreme Court has whittled down the circumstances in which unconstitutionally seized evidence is suppressed at trial. It has done so through an elemental reformulation of the rule itself. Once upon a time, the Court characterized the rule as "an essential ingredient of the Fourth Amendment" (2) and applied it "reflexive[ly]" (3) to exclude evidence discovered as a result of unlawful searches and seizures. It now disclaims that approach in no uncertain terms. (4) Insofar as the Fourth "Amendment" says nothing about suppressing evidence," (5) the Court reasons, the exclusionary rule is a "prudential doctrine," the "sole purpose" of which is "to deter future Fourth Amendment violations." (6) Where the costs imposed by the rule--namely, the freeing of criminals--outweigh that deterrent value, exclusion is deemed unwarranted. (7)

But the verdict may not be in. A mere two years ago, a bare minority of the Court urged "a more majestic conception" of the exclusionary rule than is currently applied. (8) Those Justices joined the countless commentators who lament the rule's erosion. (9) Thus, it isn't that the rule wants for supporters. The problem is that those supporters have been unable themselves to reformulate the rule in a manner that persuasively counsels for a more robust doctrine.

From a policy perspective, I personally am conflicted when it comes to the exclusionary rule. There are compelling arguments for and against it. On one hand, the notion that the government could violate a person's civil rights and, to boot, punish him based on what it learned in the process is deeply unsettling and subversive of the rule of law. On the other, that the criminal justice system should release a known offender because "the constable has blundered" (10) is questionable and, in many cases, probably dangerous--one wonders whether the exclusionary rule's most ardent defenders would take a different view (or at least a less emphatic one) if the evidence suppressed were less often drugs and more often murder weapons.

Of course, insofar as the Constitution has anything to say on the matter, policy debates take a backseat. In this Article, I argue that the most natural understanding of the exclusionary rule--which has escaped meaningful consideration--makes the rule a constitutional imperative. At its core, and whatever its merits, the rule is a judicial response to a non-judicial violation of the Constitution. It therefore should be understood not in isolation but in that peculiar context. Notwithstanding all of the attention paid to the rule, (11) though, few have considered the extent to which it is part of the paradigm within which courts traditionally have addressed another branch's unconstitutional conduct: judicial review. This Article fills that void by setting forth a new and original juxtaposition of the decision to exclude unconstitutionally seized evidence and the decision not to apply unconstitutional legislation--or, as is often more accurate, unconstitutionally enacted legislation.

To date, the principal exploration of this analogy was in a 1975 article by Thomas Schrock and Robert Welsh. (12) The authors there focused on the departmental roles that courts play when declining to apply laws and declining to consider evidence. Although they perceived some differences between the two, they concluded that "there is enough substantive similarity between the two situations to compel application of classical judicial review to searches and seizures." (13) In the decades since, scholars sporadically have weighed in on the argument advanced by Schrock and Welsh--some favorably, (14) some not. (15) Nobody, however, has fully reengaged the analogy.

In this Article, I aim to pick up the thread sewn by Schrock and Welsh, carry it forward in two critical respects and depart from their analysis in several others. My first intended contribution is a constitutional discussion. The most instinctive objection to any analogy between invalidating legislation and excluding evidence is the contention that the former is required on the face of the Constitution--for instance, by the Supremacy Clause--but the latter is not. (16) Schrock and Welsh themselves started from the premise that courts properly may--indeed, must--invalidate unconstitutional legislation. (17) But this is highly debated. I therefore begin the analysis by examining the readings of the Constitution that support and refute traditional, Marbury-style judicial review. In doing so, I discover something both noteworthy and telling: the same frameworks of constitutional interpretation that obligate courts not to apply unconstitutionally enacted legislation likewise require them to exclude unconstitutionally seized evidence and vice versa.

In view of that correlation, we should ask ourselves whether the exclusionary rule is best understood as simply the form that judicial review takes in the Fourth Amendment context. (18) The second intended contribution of this Article is a conceptual examination of that proposition. That the rule applies to searches rather than legislation does not dispose of this inquiry--judicial review has come to include review of both executive conduct and legislation. (19) Since its inception, though, the exclusionary rule has been the target of numerous analytic objections (20) that arguably constitute prudential reasons not to exclude evidence. I conclude, however, that these criticisms apply not only to the exclusion of evidence but to the invalidation of legislation. Thus, they do not weaken but indeed bolster the understanding of the exclusionary rule as Fourth Amendment judicial review.

This Article proceeds in three parts. In Part I, I set the stage for the doctrinal comparison by offering pertinent background and clarifying the forms of the exclusionary rule and judicial review with which I am concerned. In Part II, I take up the textual, structural and originalist arguments for and against both of these practices, concluding that they are of equal constitutional footing. In Part HI, I offer a conceptual comparison and conclude that the decisions not to apply legislation and not to consider evidence both are, in substance, subspecies of the broader doctrine of judicial review whereby courts invalidate non-judicial unconstitutional conduct.

The takeaway here is straightforward. Whatever the origins of judicial review, it is a (if not the) central canon of the American judiciary. For a variety of reasons, courts consider themselves not only empowered but obligated not to apply legislation that in their view offends the Constitution. But if we accept those reasons--and over time we have come to do so--then courts also must exclude unconstitutionally seized evidence. It therefore makes no sense to conceive of the exclusionary rule as a prudential, utilitarian remedy--or any kind of remedy. Instead, it is a judicial obligation that is tangent to one courts have followed for more than two centuries. It should be treated as such.

1. THE COMPARATORS

   At the outset, I should clarify exactly what is being compared. The exclusionary rule and judicial review each operate differently in different circumstances. In this Part, I identify the versions of these doctrines on which I will focus and offer some pertinent background.

   1. The Exclusionary Rule

      Most trace the exclusionary rule's origins to the Supreme Court's 1886 decision in Boyd v. United States. (21) There, the Court held that certain documents subpoenaed from a suspect could not be used against him in a trial under collections-revenues laws by virtue of the "intimate relation" between the Fourth Amendment's protection from unreasonable searches and seizures and the Fifth...