In his response to my post on originalism and the exclusionary rule, Paul responds, "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." I think this response misunderstands my post a bit, so I wanted to offer some follow-up thoughts.

  First of all, Paul is absolutely correct that the common law rule permitted an officer to testify about evidence illegally obtained. You bet. This is not only correct, it was specifically acknowledged and accepted by the majority in Weeks. The Weeks Court expressly distinguished the case from the cases covered by the usual common law rule that officers could testify about evidence illegally obtained:

What, then, is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not . . . the case of testimony offered at a trial where the court is asked to stop and consider the illegal means by which proofs, otherwise competent, were obtained . . . . The case in the aspect in which we are dealing with it involves the right of the court in a criminal prosecution to retain for the purposes of evidence the letters and correspondence of the accused, seized in his house in his absence and without his authority, by a United States marshal holding no warrant for his arrest and none for the search of his premises. The accused, without awaiting his trial, made timely application to the court for an order for the return of these letters, as well or other property.

Weeks, 232 U.S. at 392-93.

  Put another way, Weeks was handed down as a return-of-property case, not a suppress-evidence-because-the-law-was-broken case.

  To be fair, the Weeks Court may have added some innovation in the remedy: The Court undid the conviction on the ground that if the trial court had ruled properly on the motion to return property, there would have been no conviction. In other words, the Supreme Court restored Weeks to the position he should have been in if the lower court had ruled properly in his motion to return property; it did not simply order the property restored to him (maybe sent to his jail cell?) or offer him damages for the wrong.

  Perhaps some would argue that the trial court should have returned the property before the conviction, effectively suppressing the evidence, but that after the conviction the Supreme Court should't have tried to return Weeks to that position. That seems possible to me. But even if that's right, I tend to think the key point survives: The ability to to have the return of property that was unlawfully seized did seem to authorize a pre-trial remedy in a particular type of common law case that was surprisingly suppression-like.

  Or at least it looks that way to me based on a reading of Weeks. I admit that I was surprised when I read Weeks again recently and saw its traditional grounding; I had never thought about the connection between suppression and return of property before. But reading Weeks closely made me think that I was overlooking something in following the usual story that suppression was invented out of thin air as a remedy.

  One additional point. Paul states in his post that "There's a lot of history between 1789 and 1914 — virtually all of it squarely opposed to an exclusionary remedy." There may be a lot of history, but I think it's worth noting that there is astonishingly little Fourth Amendment case law from that period. There were only 3 or 4 significant Fourth Amendment cases in that period: Ex Parte Jackson, Boyd v. United States and Hale v. Henkel were the most significant, I think, and none of them shed light on the issue. Adams v. New York from 1905 was the only really relevant precedent, and it it was then minimized 9 years later in Weeks.