Quote:
Originally posted by Spanky
Mainly I never like the idea of the exclusionary rule. We are supposed to be more conservative than the British but they never came up with this crazy idea (punishing the victims because of a police screw up instead of the police). Clearly our founding fathers never even thought of the idea and it seemed crazy to me to all of a sudden to pretend it is in the constitution when no one noticed it before the twentieth century (and then let a bunch of guilty people go free).
It also seemed logical to me that the Supreme Court should only strike down laws if they violated the constitution. If they did not violate the constitution, then the Supreme Court striking it down, seemed beyond their powers.
Busing kids all over the city to go to schools way across town just so schools could be integrated also seemed crazy and in no way in the constitution.
When I read Roe and other cases in Law School they also seemed crazy. Trying to pretent that the right to privacy exists through a "penumbral inference" seemed pure B.S. to me.
However, I had never heard the argument that there are rights that predate the constitution, and such rights could be used to strike down federal legislation. It also never occured to me that the Supreme Court could just make up such rights under a common law tradition. It certainly doesn't say they can do it in the constitution.
Most of the arguments for these made up rights seemed to revolve around trying to pretend the rights they made up were really in the consitution, but hidden, or part of the founder intent. This always seemed like BS to me. However, I never saw a straightforward argument that said that, this right is not in the constituion, but we believe such a right should exist, and there is a tradition in this country and in the common law system of courts making up rights so that is what we are going to do.
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I think the exclusionary rule is the product of not wanting to jail the policeman who violated the rules but still wanting a penalty to apply against law enforcement. The Founders live in an age when tarring and feathering the British constable was a noble sport. The issue wouldn't have arisen for the Founder because they would have been happy to throw both the cop and the perp in jail (which is probably the right solution). We needed the exclusionary rule because we stopped throwing cops in jail.
I do think there is a long tradition, though, of finding that abuses of the system against a person shift burdens away from the accused - for example, following Jefferson's election, you were released if convicted under the Alien & Sedition Acts, regardless of what you may have done. But I don't know if this tradition was actually incorporated in decisions. Might be an interesting topic for research.
Busing, of course, couldn't be envisioned by the founders, since the founders, even in much of the North, would have assumed blacks were in slavery. However, the drafters of the civil war amendments were very fond of extreme actions against the south, and the 14th amendment explicitly bars many Southerners from public office. Reconstruction was not a pretty episode, and busing would have been a mild solution to them. I don't view busing as raising very difficult questions of intent.
Roe is farther afield, and has much to do with a radical shift in sexual morays that was precipitated by the development of new technology (birth control). I wrote (but never published) a lengthy paper once on the interaction between the development of birth control and changing social mores, focused on the period around World War I (and specifically on the government's provision of condoms to soldiers in World War I). I think there was a concept of broad inherant rights in the founders, and privacy is not a bad term for these rights though also not ideal, but that abortion and birth control just were not yet part of any realistic legislative equation. So I think Roe is a question of how do you apply old rules to new situations, which is a traditional kind of common law analysis. I would have relied more heavily on the 9th amendment myself, and would have avoiding things that look like setting hard rules (e.g., cutoffs by trimester).
