{"id":6500,"date":"2012-01-04T14:30:11","date_gmt":"2012-01-04T14:30:11","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-01-04T14:30:11","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6500","title":{"rendered":"Volokh Conspiracy: &#8220;Originalism and Civil Damages for Fourth Amendment Violations&#8221;"},"content":{"rendered":"<p>Volokh Conspiracy: <a href=\"http:\/\/volokh.com\/2012\/01\/04\/originalism-and-civil-damages-for-fourth-amendment-violations\/\">Originalism and Civil Damages for Fourth Amendment Violations<\/a> by Orin Kerr:<\/p>\n<blockquote><p>Originalists are often opposed to the exclusionary rule, the rule that evidence obtained in violation of the Fourth Amendment cannot be used in court. The exclusionary rule was made up by 19th and 20th century judges, the argument runs. At common law, the remedies for violations of search and seizure law were civil damages against the officers, not exclusion of evidence. Because the Fourth Amendment is widely recognized to have adopted and endorsed those cases, such as <a href=\"http:\/\/www.constitution.org\/trials\/entick\/entick_v_carrington.htm\">Entick v. Carrington (1765)<\/a>, the exclusionary rule must be abolished. It simply is not part of the original Fourth Amendment remedies observed in cases like Entick. <\/p>\n<p>I\u2019m not entirely sure that\u2019s correct, but let\u2019s assume it is. Here\u2019s my question: If you\u2019re an originalist, does that mean that you think the Constitution guarantees the civil remedies that existed at common law for search and seizure violations? Put another way, can modern judges change the civil remedies that were available at common law for constitutional violations? Or is there a civil remedies scheme that must be available under an originalist understanding of the Fourth Amendment? <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"<p>b2evALnk.b2WPAutP <a class=\"more-link\" href=\"http:\/\/fourthamendment.com\/?p=6500\">Continue reading <span class=\"meta-nav\">&rarr;<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-6500","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/6500","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=6500"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/6500\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=6500"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=6500"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=6500"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}