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 Entick v. Carrington (1765), the exclusionary rule must be abolished. It simply is not part of the original Fourth Amendment remedies observed in cases like Entick.
I’m not entirely sure that’s correct, but let’s assume it is. Here’s my question: If you’re 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?
I ask that in part because I often encounter a very strange disconnect when originalists discuss the exclusionary rule versus civil damages as a means of enforcing the Fourth Amendment. In discussing the exclusionary rule, most originalists contend that the Fourth Amendment can only be enforced as it was at common law. On the other hand, in discussing civil damages, self-described originalists often seem to go all living constitutionalist: Suddenly the scope of civil damages is just a question of policy, not originalism, and often that means inventing new limitations on damages or following Warren Court-era precedents that did so. I’m curious: Is there a genuine way to reconcile these two sets of beliefs?
Consider the views of Justice Scalia. Scalia has suggested that we should abolish the exclusionary rule, and for years he has tried to move Fourth Amendment law into more of what he sees as an originalist mold. But when it comes to civil damages, Justice Scalia has scoffed at the idea of reinstating the kind of civil liability that existed at common law for search and seizure violations.
The big issue is qualified immunity for Fourth Amendment violations, an idea that was largely introduced in 1967 in a decision by Chief Justice Earl Warren, Pierson v. Ray. Qualified immunity cuts back dramatically on the scope of civil damages for Fourth Amendment violations. And yet the major decision that established the law of qualified immunity against police officers conducting searches and seizures was Anderson v. Creighton, written by — you guessed it — Justice Scalia.
In Creighton, Justice Scalia rejected the idea that the damages that should be available for Fourth Amendment violations should be the damages that were available at common law, before the 1960s-era introduction of qualified immunity for officers. The Creightons argued that qualified immunity should not apply to their Fourth Amendment claim against the officers who searched their home because no such doctrine would have applied at common law, citing Entick v. Carrington. Justice Scalia disagreed:
[W]e have never suggested that the precise contours of official immunity can and should be slavishly derived from the often arcane rules of the common law. That notion is plainly contradicted by Harlow [v. Fitzgerald,457 U.S. 800 (1982)], where the Court completely reformulated qualified immunity along principles not at all embodied in the common law, replacing the inquiry into subjective malice so frequently required at common law with an objective inquiry into the legal reasonableness of the official action. As we noted before, Harlow clearly expressed the understanding that the general principle of qualified immunity it established would be applied “across the board.”
The approach suggested by the Creightons would introduce into qualified immunity analysis a complexity rivaling that which we found sufficiently daunting to deter us from tailoring the doctrine to the nature of officials’ duties or of the rights allegedly violated. Just in the field of unlawful arrests, for example, a cursory examination of the Restatement (Second) of Torts (1965) suggests that special exceptions from the general rule of qualified immunity would have to be made for arrests pursuant to a warrant but outside the jurisdiction of the issuing authority, §§ 122, 129(a), arrests after the warrant had lapsed, §§ 122, 130(a), and arrests without a warrant, § 121. . . .
The general rule of qualified immunity is intended to provide government officials with the ability “reasonably [to] anticipate when their conduct may give rise to liability for damages.” Davis, 468 U.S. at 468 U. S. 195. Where that rule is applicable, officials can know that they will not be held personally liable as long as their actions are reasonable in light of current American law. That security would be utterly defeated if officials were unable to determine whether they were protected by the rule without entangling themselves in the vagaries of the English and American common law.
That’s a good legal argument, based on common rationales such as precedent, the need for a sensible rule as a matter of judge-made policy, and the need to find an administrable rule. But isn’t it a pretty strange argument for an originalist to make?
I don’t mean to pick on Justice Scalia. My question is really about originalism and remedies for constitutional violations more generally. To what extent does an originalist interpretation require adopting the original remedies available at common law for search and seizure violations? And if the right answer is that it does, at least to some extent, does that mean that the Court should constitutionalize the common law civil remedies scheme? And specifically, should an originalist believe that recently-invented doctrine of qualified immunity against police officers for unreasonable searches and seizures falls below the floor of the constitutionally-required scheme of civil damages?