Judicial Power, Exclusionary Rule, and Precedent

The role of judicial power in the U.S. Constitution is a critical aspect of the American legal system. The written Constitution envisions a significant role for the judiciary, and understanding how this role harmonizes with the fundamental principles of a written constitution is essential. Judicial power encompasses several key functions: interpreting the document, implementing its meaning through court rules, deciding cases (res judicata), establishing precedents, and providing remedies for legal rights violations.

Judicial Remedies and the Exclusionary Rule

The concept of judicial remedies is crucial. While some remedies are constitutionally sound, others, like the exclusionary rule, are debatable. The exclusionary rule, which prevents illegally obtained evidence from being used in court, is not explicitly found in the written Constitution. Furthermore, its foundations in the unwritten Constitution are questionable.

The primary concern with the exclusionary rule is that it often protects guilty individuals rather than innocent ones. The rule's application means that evidence, even if it conclusively proves guilt, is suppressed if obtained improperly. This can lead to guilty parties escaping conviction, which conflicts with the Constitution's deep-seated logic of protecting the innocent and seeking truth in trials. The Constitution's implicit structure aims to differentiate the innocent from the guilty, a principle that supports providing legal counsel for indigent defendants (as in Gideon v. Wainwright) but not necessarily discarding reliable evidence of guilt.

The exclusionary rule also doesn't align with the "lived constitution," which reflects the practices and beliefs of the American people. Ordinary citizens generally believe in truth-seeking and holding the guilty accountable. Unlike Gideon, which followed established practices in many states, the Mapp v. Ohio decision (which applied the exclusionary rule to the states) did not reflect a widespread existing practice.

The Fourth Amendment and its Intended Remedies

Critics argue that the exclusionary rule is not the appropriate remedy for Fourth Amendment violations. The Fourth Amendment protects individuals from unreasonable searches and seizures, stating: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The framers envisioned remedies for these violations primarily through property law and tort law. If the government trespassed on a person's property or person, the individual could sue for damages.

Historical examples, such as the famous cases involving John Wilkes and Judge Camden, illustrate this. These were civil tort cases brought by innocent individuals against government officials who had unlawfully intruded upon them. The intended remedy was for innocent people to seek compensation for the violation of their rights, not for guilty individuals to have evidence against them suppressed.

Consider two identical twins, Adam and Bob. Both are subjected to an unreasonable and illegal search. In Adam's house, nothing is found. In Bob's house, a "smoking gun" (e.g., a bloody knife) is discovered, leading to his conviction. Under the framers' vision, both Adam and Bob would sue for the violation of their privacy. Adam might receive $100,000. Bob, having suffered the same privacy violation, would also receive $100,000. He would not receive additional compensation (e.g., $20 million) because he was found guilty. The government's wrong was the intrusion, not the discovery of evidence. The Fourth Amendment's remedy is for the violation of privacy, not for the consequences of being found guilty. The exclusionary rule, therefore, lacks the proper remedial fit because it doesn't address the scope of the right to protect innocent people from intrusion.

The Role of Precedent

The Constitution is the supreme law of the land, not the pronouncements of presidents, Congress, or even the courts. The Supreme Court is supreme over lower courts but not over the Constitution itself. If precedent were always followed, even when demonstrably wrong, the legal system would drift away from the supreme law, much like a game of "telephone" where the original message becomes garbled.

However, precedent does have a role, albeit a limited one, as recognized by the Constitution itself.

Three Components of Precedent

1. Vertical Precedent: The Supreme Court is supreme over lower courts, which are explicitly termed "inferior courts" in the Constitution (Article 1, Section 8 and Article 3). Lower courts are bound to follow the Supreme Court's interpretations. If the Supreme Court has not decided a particular issue, lower courts may look to the written Constitution. Otherwise, they must adhere to Supreme Court rulings.

2. Persuasive Authority and Starting Point: For the Supreme Court itself, earlier cases, especially those decided by highly respected justices like John Marshall, carry persuasive authority. These precedents can influence a justice's re-evaluation of their initial interpretation of the Constitution. Precedent also serves as a starting point; justices don't re-litigate every issue from scratch. They begin with existing precedents and are persuaded to overturn them only if they are convinced the Constitution dictates a different outcome.

3. Reliance Interests and Equitable Considerations: Judicial power applies to past events and transactions. When individuals or entities have acted in reliance on existing precedents, this creates "reliance interests" that courts may consider. Even if a precedent is later deemed incorrect, overturning it might disrupt settled expectations. In such cases, a court might acknowledge the error but maintain the precedent for past actions while signaling a different rule for future cases. An example is the constitutionality of paper money; even if its initial ruling was questionable, the widespread reliance on it for over a century makes it impractical to overturn.

4. Embraced Unenumerated Rights: The Constitution also acknowledges unenumerated rights of the people (Ninth Amendment). If a court decision, even if initially mistaken, has been widely embraced by the American people as a new right, then at a later time, the court might affirm that precedent rather than overturn it. This reflects the evolving understanding of rights through lived experiences, social movements, and technological changes. For instance, while Miranda v. Arizona was controversial at the time, it has become deeply embedded in American legal culture, leading even critics like Chief Justice William Rehnquist to uphold it in Dickerson v. United States.

This understanding of precedent allows for continuity in the legal system while ensuring that the Constitution remains the ultimate authority. It balances the need for stability with the imperative to correct past errors and adapt to societal changes. This framework aligns with both the Constitution's directives regarding the judiciary and the Supreme Court's own jurisprudence on the role of precedent, as exemplified in cases like Planned Parenthood v. Casey.

Historical Figures and Key Cases

The discussion highlights the contrasting views of Justices Harry Blackmun and William Rehnquist regarding Roe v. Wade. Blackmun authored the majority opinion in Roe, establishing the right to abortion, while Rehnquist dissented. Later, as Chief Justice, Rehnquist sought to overturn Roe in Casey but ultimately dissented again when the Court upheld its core principles, albeit with some modifications. These cases underscore the ongoing debate about the role of precedent and constitutional interpretation.