“In discussing civil damages, self-described originalists often seem to go all living constitutionalist.”

January 5th, 2012

Orin Kerr notes an inconsistency in originalists on the exclusionary rule and civil damages. They want to allow civil damages for violations of the Fourth Amendment, but they insist on 1960-era precedents appliyng qualified immunity to cut back on available damages. In other words, they want civil damages, but not the type of damages available at the time of the founding.

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.

Seems like a good example of selective originalism.

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?