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Saturday, July 19, 2008

Selective Exceptionalism?

Adam Liptak’s series on “American Exceptionalism” in the NY Times, the latest installment of which treats the exclusionary rule, connects in some counterintuitive ways with the relatively recent brouhaha about the Supreme Court’s deployment of foreign sources of law. The debate about relying on foreign sources of law has generally seemed to pit those on the left in favor of things like limiting the death penalty against more conservative members of the Court and Congress who are unwilling to rely on international consensus as an indication of what America should do. The topics that Liptak has chosen to discuss, however, indicate that simply polling the world community would not uniformly lead the Court to more liberal results, at least according to our conception of what “liberal” means in the United States.

The Fourth Amendment’s exclusionary rule, prohibiting the admission of evidence obtained through illegal searches and seizures, is a perfect example. As Justice Clark explained in Mapp v. Ohio (1961), which applied the exclusionary rule to the states, the rule functions not simply as a principle of evidence but instead as a “constitutionally required—even if judicially implied—deterrent safeguard.” By punishing the prosecution for obtaining evidence in an illegitimate manner, the rule thereby dissuades police officers from engaging in such conduct in the first place. The exclusionary rule thus furnishes a kind of restraint on governmental intrusion into privacy that would generally be lauded by liberals or libertarians. As Liptak points out, however, other courts—most notably, a Canadian appeals court, the High Court of Australia, and the European Court of Human Rights—have refrained from adopting such an exclusionary rule.

Some of the examples of contravening legal regimes that Liptak cites demonstrate the perils of relying on foreign sources without placing them within the appropriate comparative framework. Although Australia, like the United States, boasts a common law heritage, it notoriously lacks a bill or charter of rights—hence, the considerations that the U.S. Supreme Court is obliged by the Fourth Amendment to take seriously are not similarly available to Australian judges. The European Court of Human Rights, while influenced by U.S. rights jurisprudence, hears appeals from both common and civil law countries, which necessarily boast very different kinds of procedural safeguards for defendants. As Amalia Kessler’s article “Our Inquisitorial Tradition” illuminates, due process may valuably assume disparate shapes within the common and civil law traditions. Hence, the ECHR may justifiably be unwilling to insist upon principles like the exclusionary rule that might fit better within a common than a civil law system. These concerns, as well as others derived from comparative law, should encourage us, in general, to evaluate the relation between any particular instance of American exceptionalism and its justification within the legal system of which it forms a part. In doing so, we may find that selective exceptionalism is not as anathema as it might sound.

Posted by Bernie Meyler on July 19, 2008 at 11:15 AM | Permalink


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I tend to think that the key difference is that our criminal procedure rules are made by judges. In almost every other country, criminal procedure rules are legislative or a mix of legislative and judicial: Legislatures can therefore devise a range of methods for enforcing the law. But our law is unique in that the courts in the U.S. took on the task of generating the rules of criminal procedure. Once they decided to do that, use of the exclusionary rule follows naturally: judges needed a remedy that they could enforce on their own without the cooperation of other branches.

As for why we have criminal procedure rules made by judges, I think the historical reason is less the bill of rights than federalism. The Fourth Amendment didn't do very much until the incorporation of the Fourth Amendment and application to the states because most criminal law is in the state systems, not at the federal level. They really key move was incorporation. And my sense is that the Warren Court incorporated the Fourth Amendment mostly because the Justices saw a need for uniform rules on police procedures than Congress couldn't address. Specifically, the limitations on the scope of federal power (at least as understood back then) made it impossible for Congress to impose uniform procedures. So the only way to have uniform rules of criminal procedure was through the courts, and the only way to have an enforceable system of rules exclusively through the courts was through the exclusionary rule.

That's my sense, at least (and that's what i meant in Liptak's article about our exclusionary rule being a product of history -- unfortunately the reason why didn't make it in).

Posted by: Orin Kerr | Jul 19, 2008 11:42:37 AM

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