Dear Professor Dershowitz,
Your Seventh Amendment point misses the mark. Here are three basic things you (and our readers) need to know about the amendment. First, the Supreme Court has made clear that the amendment simply does not apply to state courts. (Although I myself am a strong believer in generally applying the original Bill of Rights against the states, via the Fourteenth Amendment, I explain why the current doctrine on the Seventh Amendment’s inapplicability may be defensible in my forthcoming book, The Bill of Rights: Creation and Reconstruction.) Most searches and seizures are carried out by state and local officers, and the Seventh Amendment issue need never arise in these cases. Even in cases involving federal officers, Congress could choose to allow trials in state court; once again, the Seventh Amendment would not require jury trials here. Second, the Seventh Amendment wouldn’t bar even a federal bench trial of a suit against a police department, or the Federal Bureau of Investigation. Because these government entities enjoy “sovereign immunity” at “common law,” lawsuits against these departments themselves fall outside the amendment, which is limited to suits at “common law.” In my criminal-procedure book, and in my testimony before the Senate Judiciary Committee, I have advocated damage suits against the government department itself. (The department, in turn, could of course fine or discipline its offending officers.) Third, Congress and state legislatures have great freedom to vest search-and-seizure victims with “equitable” rather than “legal” rights to sue individual officers; and here, too, the Seventh Amendment would be no bar.
So the Seventh Amendment issue is a red herring. Next, you suggest that the exclusionary rule isn’t used all that often. (Some of our readers in ” The Fray” have made a similar point.) But if the rule is wrong in principle, it should never be used; and I, at least, refuse to try to defend a rule that has suppressed decisive evidence in some murder and rape cases. If even a single rapist or murderer goes free because of the exclusionary rule, it is a big deal to the victims. Moreover, which way does your point cut? If the exclusionary rule isn’t being used very much, then even you should accept the need to adopt other devices–like the ones I’ve proposed. Indeed, you’ve never answered my earlier point in this dialogue that the exclusionary rule is no use at all if the cops find no evidence, but beat me up just for fun. Here I am the one trying to “solve a real problem” and you are the one raising “abstract”–and off-point–objections.
Next, a few words about constitutional “literalism.” I’m glad to see you’ve dropped your earlier suggestion that I’m somehow trying to “have it both ways,” but you repeat your description of me as a “constitutional literalist.” I confess to taking the words of the Constitution very seriously. But I have also tried to take seriously the “spirit” of the Constitution: I’ve tried to show how my reading of the self-incrimination clause coheres with the best reading of the words of the adjoining Fourth and Sixth amendments. This is precisely the methodology our mutual friend (and your sometime co-author) John Hart Ely urges in his important book Democracy and Distrust. Now, John probably does not agree with everything that I have said, but I doubt he would accuse me of an inappropriate constitutional methodology. Your methodology, on the other hand, is puzzling. You invoke what “the framers of the Fifth Amendment did … intend.” Who’s trying to “have it both ways” here, Alan? As I’ve argued earlier in the dialogue, and you’ve conceded, it’s clear beyond doubt that the framers of the Bill of Rights did not intend the exclusionary rule, and the words of the Constitution cannot be plausibly read to require this rule. Yet you still support this rule in the name of the Constitution. By contrast, my reading of the self-incrimination clause not only squares with the words of the clause, but with the following facts about the framers’ world: (1) Suspects were strongly pressured to tell all before pretrial magistrates–they had no right to remain silent pretrial without penalty. (2) The landmark case on the books in the 1780s involved a suspect tricked into leading the government to the stolen goods hidden under her bed. Her confession was excluded, but the physical evidence was admitted–precisely the rule I support. Now it’s not crystal clear exactly what the framers of the self-incrimination clause did intend, and so it is especially important to look carefully at constitutional text and structure here.
This brings me to my last point. We could go on debating this amendment and that one, this word and that fact–but I suspect that our true difference is more systematic. It’s not that I don’t care about the “spirit” of the Constitution–it’s that I think you misread the Constitution’s true spirit. I think the spirit of the Bill of Rights was originally and should be today about protecting the innocent from erroneous conviction. Coerced confessions, for example, are unreliable, and should be excluded, but physical evidence like stolen goods, fingerprints, bloody knives, and the like should be admissible. You, on the other hand, read the Constitution as protecting the guilty–as such–from even reliable convictions. But neither the words of the Constitution, nor the original intent of the framers, nor the spirit of the founders’ Bill of Rights supports you. And to make matters worse, your approach ends up not only helping the guilty but actually hurting the innocent, as I explained earlier in our dialogue. You are of course entitled to your own policy views. But they are just that–your policy views, rather than what the Constitution really requires.