Dear Professor Amar:
It is your discussion of the 7th Amendment which misses the point, since virtually every state constitution provides for trial by jury, and so tort suits against policemen will not be able–nor should they be able–to circumvent trial by jury.
I am afraid that your discussion of the exclusionary rule panders with its emotional references to “victims” and “rapists.” You do not respond to my point that police misconduct is widespread and should not receive the imprimatur of the courts or be rewarded.
You invoke John Ely. I would be curious whether he supports your dangerous proposal for compelled pretrial depositions of criminal defendants. I would also wonder whether he agrees with you that the Bill of Rights was not intended to protect values other than innocence. Coerced confessions are not, in fact, always unreliable. They are excluded as well because of other important policy reasons. Your one-dimensional perspective on the Bill of Rights trivializes the important lessons of history.
Professor Amar, you can’t have it all. Any system which focuses exclusively on truth–important as it is–will necessarily sacrifice other important values, such as privacy and autonomy. The major criticism of the Inquisition and Stalinism is not that they got the wrong people, but that even if they got the right people, they got them for the wrong reasons. The greatest dangers to liberty come from those who seek “the truth” without sufficient concern for other important values.
