America's Unwritten Constitution: The Precedents and Principles We Live By by Akhil Reed Amar Read Free Book Online Page A

proper relationship to the scope of the violation. The Fourth Amendment is about the violation of actual privacy and property that occurs during a search or seizure. Whether evidence of criminality is found in such a violation is wholly irrelevant. A proper remedy would address the rights of innocents. It would punish flagrant unconstitutionality more severely than mere error. It would protect against police brutality and governmental oppression even if such misconduct had no causal connection to a search for criminal evidence. The Warren Court exclusionary rule did none of these things. 12
    Exclusion in America began not as a remedy rule, but rather as a rule about constitutional meaning—a rule deriving from a judicial interpretation that saw the Fourth Amendment and the Fifth Amendment self-incrimination clause as intimately interrelated. On this view, when a court excluded a defendant’s diary in a criminal case, the judge was not primarily remedying an antecedent Fourth Amendment violation that had occurred when the government had grabbed the diary. Rather, the judge was also—and more importantly—preventing the Fourth-Fifth Amendment violation about to occur in his own courtrooms were the diary to be read to the jury. Though it was a principled interpretation of the Constitution’s meaning, in the end this Fourth-Fifth-fusion view was demonstrably incorrect—indeed, preposterous—once the idea metastasized beyond diaries and personal papers to include stolen goods, murder weapons, and the like. Ever since the Court itself made that point about constitutional meaning clear in the 1966 blood-test case of Schmerber v. California , the exclusionary rule has been left without a principled legal leg—interpretational, implementational, or remedial—to stand on. Yet it still stands, in the name of stare decisis .
    But why should a shaky rule that has lost its constitutional footing be perpetuated? We shall return to this key question in the concluding pages of this chapter.
    CONSIDER, FINALLY, THE WARREN COURT’S revolutionary one-person-one-vote rule. Here, too, we see arguable overprotection at work, at least initially. If the true constitutional rule governing voting rights derivedfrom the equal-protection clause, then the idea that each vote had to have exactly equal weight with every other would follow naturally. But this way of justifying Reynolds sits atop a faulty interpretive foundation. The equal-protection clause as originally written and understood was categorically inapplicable to voting. Baker and Reynolds were really republican-government-clause cases masquerading in equal-protection clothing.
    Nevertheless, one-person, one-vote can be justified as a legitimate implementational device. True, the Reynolds rule arguably overprotected the constitutional principle at stake, but only after decades of judicial neglect and underprotection. Without some limit on malapportionment, a person’s right to cast a vote could be rendered utterly meaningless. For example, in a state composed of one hundred districts, could the government create fifty-one “rotten boroughs”—each with a single voter (say, the fifty-one most senior leaders of the incumbent party)—and relegate all other voters in the state to the remaining forty-nine districts? If this goes too far (and it surely does), and if Tennessee had surely gone too far in Baker , then where and how should judges draw the line in a principled way? * Whatever its other flaws, the one-person-one-vote rule was a clean and workable implementational device. 13
    Had the justices opted to openly rely upon the republican-government clause, several alternative sub-rules might have plausibly presented themselves. First, the Court could have chosen an approach akin to today’s Eighth Amendment jurisprudence, using the actual practice of the fifty states as a benchmark and proclaiming state practices that fell outside the mainstream to be unrepublican by contemporary