In his recent post, Orin wonders whether the exclusionary rule is consistent with orginalism. He sketches out the received wisdom on the subject, but then notes that the Supreme Court in decisions in 1914 (Weeks) and 1920 (Silverthorne) suppressed evidence. He then weaves an argument that originalism might support the exclusionary rule holdings in these decisions.

This may be a case where, as Justice Holmes put it, "A page of history is worth a volume of logic." There's a lot of history between 1789 and 1914 — virtually all of it squarely opposed to an exclusionary remedy.

In 1904, the Supreme Court in Adams v. New York, 192 U.S. 585, 596 (1904) described the common law as follows: "Evidence which is pertinent to the issue is admissible, although it may have been procured in an irregular or even in an illegal manner." To the same effect was the English common law, which held "[i]t matters not how you get it; if you steal it even it would be admissible in evidence." Regina v. Leatham, [1861] 8 Cox C.C. 498, 501 (Crompton, J.). Indeed, so at odds with the common law is an exclusionary rule, that the first reported state court decision anywhere in the nation suppressing evidnece was State v. Sheridan, 96 N.W. 730 (Iowa 1903) — a decision that the Iowa Supreme Court overturned in 1923 on the ground that the strict application of the exclusionary rule would thwart the proper administration of justice. State v. Tonn, 191 N.W. 530 (Iowa 1923). Historically, the great bulk of state court decisions rejected the exclusionary rule. See generally Annotation, Admissibility of Evidence Obtained by Illegal Search and Seizure, 24 A.L.R. 1408 (1923).

I review some of the history in my article commenting on the surprising creation of exclusionary rules in state constitutions via judicial fiat. (See esp. pp. 806-07). State constitutional law has generally been more in line with orginalist premises, but on the exclusionary rule issue it appears to have veered into the realm of policy-based decisions.

Originalism sometimes cannot resolve interpretative questions. But on the exclusionary rule, it seems to me there is little room for debate: Originally speaking, the Constitution does not contain an exclusionary rule.