The rule existed in traditional English Common law from long before the U.S. declared Independence.
Being that the Fourth Amendment itself was a reaction against General Warrants and Writs of Assistance, it's hard to imagine the founders would have wanted even less protection here than English law already provided
This is a great policy and common law argument.
But, much like the parent comment, can you point where in the text of the 4th amendment (or the constitution) where it says anything about an exclusionary rule?
Because if we are going to argue policy and common law, than we also have restrictions that don't appear in the text, but appeared in common law, as well.
Sure. I think we are mostly in violent agreement.
I'm actually not trying to argue that it's not a violation of the fourth amendment (i strongly believe it is). I'm arguing that the literal text of the fourth amendment alone is not, by itself, a great explanation of what it really means in today's world.
The reply I original made was to the argument that because 'overriding public danger' doesn't appear in the literal text of the 4th amendment, there can be no such exception.
As we've both gone through, the 4th amendment can't be viewed in a vacuum, or else it would be nonsensical.
So saying "i don't see where the literal text of the 4th amendment says that" doesn't seem to me a complete and total argument.
For example, it literally says nothing about anything but papers, persons, houses, and effects.
None of this explicitly covers phone calls, or even e-mail. You have to argue by analogy or inclusion in today's equivalent of papers or effects
It also only prevents unreasonable searches and seizures, and there is an argument to be made that "special needs" or "overriding public danger" make the searches not unreasonable.
I don't personally buy it, but ...
As you mention, there is also historical context on all sides to consider.
That is in fact, exactly my point. Saying "it ain't in the text" is even far past what textualism adherents do, and i'd venture to guess, would not make for a very useful statute construction philosophy.
Being that the Fourth Amendment itself was a reaction against General Warrants and Writs of Assistance, it's hard to imagine the founders would have wanted even less protection here than English law already provided
http://en.wikipedia.org/wiki/Exclusionary_rule#History_of_th...