Being that the Exclusionary Rule is a creature of the court and therefore, there is little legislative history. It is also important to note that while the 4th Amendment protects "persons, houses, papers and effects" from unlawful searches and seizures, the manner to protect them is not specified. Further, the exclusionary rule is not mentioned anywhere in the constitution. This section will be a brief examination of some arguments for and against the exclusionary rule.
Critics
The most common assault on the exclusionary rule is that it lacks a historical basis. Many believe that the "court has... distorted Fourth Amendment remedies." Akhil Reed Amar, Fourth Amendment First Principals, 107 Harv. L. Rev. 757, 785 (1994). They argue that violations of the Amendments that give rise to the exclusionary rule should result in civil suits rather than suppression of evidence critical to the innocents or guilt of a potential criminal. Id. at 786. They look to Revolutionary times and point out that when the founders framed the constitution, there was no exclusionary rule, but there was the traditional common law trespass, a tort, that would be the remedy for persons so aggrieved. Id. Further, many critics argue that studies show the exclusionary rule does not function as a meaningful deterrent. Ronald L. Akers & Lonn Lanza-Kaduce, The exclusionary Rule: Legal Doctrine and Social Research on Constitutional Norms, 2 Sam Houston St. U. Crim. Just. Center Res. Bull. 1 (1986).
Proponents
"Justice Potter Stewart believe that the actual legislative history of the fourth amendment reveals little... about the... origin and development of the exclusionary rule." Joshua Dressler & Alan C. Michaels, Understanding Criminal Procedure, Volume 1: Investigation, 355, (Lexis Nexis, 5th ed. 2010). However, for proponents of the rule this is not the stopping point because they believe "the framers meant the constitution to mean more than it says, and more than they could conceive" Tracey Maclin, When the Cure for the Fourth Amendment is Worse than the Disease, 68 S. Cal. L. Rev. 1, 46 (1994). They argue that the constitution should and will change over time to accommodate the needs of different ages, and it was the true intention of the framers to leave a level of abstraction to" leave room for future applications." Carol S.
