Friday, July 18, 2008

Mr. Justice Kennedy

There is an interesting article in the NYT today. http://www.nytimes.com/2008/07/19/us/19exclude.html?hp It will certainly put Mr. Justice Kennedy in a spot. The Swing Justice, who seems the darling of liberals for his support for foreign entanglements in our Constitution, and the liblerals who fawn over him, will be confronted with a decidedly illiberal foreign precedent for not excluding evidence unconstitutionally obtained by state level law enforcement. Now real adherents to the Constitution need not search foreign lands for reason to ditch the exclusionary rule, at least for the States, as, for one there is nothing in the Constitution that requires it and, more importantly, even if the exclusionary rule applied to federal prosecutions, it cannot apply to the States, as applying such rules to the states violates stare decisis. Before the innovations of the Warren Court there was no supervision of State criminal law. State law and courts stood alone unless they violated federalist principles, such as making treaties or regulating interstate commerce.

But back to the point, no one else uses an exclusionary rule, so will Mr. Justice Kennedy and the others on the court who are obsessed with foreign precedent follow their precedent or will they suddenly reject the foreign examples.

Even more interesting, where is the Obamessiah on this issue? French speaking and Spanish speaking courts do not use the exclusionary rule. Is that enough for the Obamessiah or will he suddenly become less enamored of the alien?

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