On Text and Precedent‪.‬

Until recently, the conversation on originalism and the role of precedent has been dominated by two main camps, which I will call unoriginal originalists and unprecedented precedentialists. Unoriginal originalists refers to people who purport to pay close attention to text, history, and structure, but when these sources conflict with precedent, this camp basically does not have a theory at all. The theory becomes a sort of muddling through, sometimes following precedent and sometimes not. If one, however, is just going to muddle through, or be pragmatic about when to follow precedent, does that not undercut the very grounds on which one is an originalist in the first place? Why not then muddle through across the board or be pragmatic across the board? It is tolerably clear, for example, that the exclusionary rule is completely made up from a constitutional perspective, and that no Framer ever believed that illegally seized evidence should be excluded from court; that England never had an exclusionary rule; that the Fourth Amendment definitely does not provide for an exclusionary rule; and that no state excluded evidence for the first hundred years after the Declaration of Independence, even though most of the states had Fourth Amendment counterparts. (1) If anything is clear, it is that the exclusionary rule is inconsistent with the original meaning of the Fourth Amendment, yet none of the supposedly originalist Justices on the Supreme Court reject the exclusionary rule. Even Justices Scalia and Thomas exclude evidence pretty regularly, and never quite tell us why they do so when it means abandoning the original meaning of the Fourth Amendment. (2)