Dear Professor Amar,
I believe that the Constitution is a living and evolving document whose general terms should be interpreted in a manner consistent with the realities of the age. Today’s realities make a tort remedy unworkable against police who deliberately violate even the most basic protections of the Bill of Rights–so long as they pick the targets of their lawlessness well. Juries will simply not punish overzealous police by rewarding criminals with monetary damages. That is why some sort of exclusionary mechanism is needed to enforce the Fourth and Fifth amendments. I wish it were not so because I don’t like exclusionary rules (some, by the way, are imposed against the defense; I wish you would speak out as forcefully about those as you do about exclusionary rules directed against the prosecution). I believe some exclusionary rules may be a necessary evil in the absence of other equally effective mechanisms.
You correctly observed that the exclusionary rule was not a part of our jurisprudence for most of American history, but neither were mandatory pretrial depositions by criminal defendants. As a constitutional literalist, you can’t have it both ways. Either we are or are not bound by the text, original meaning, and early history. I agree with Justice Jackson that we should not read our Constitution as we read a last will and testament, lest it become one.
You are surely right about one matter: I do believe that the Bill of Rights was designed to protect the guilty as well as the innocent. Indeed certain provisions–especially the prohibition against cruel and unusual punishment–are clearly directed at the guilty. I believe, with Churchill, that a society should be judged by the way it treats its most despised. The current campaign against criminal-defense lawyers who represent the guilty as well as the innocent endangers the liberty of all Americans.
Alan Dershowitz
