Just to play devil's advocate, the exclusionary rule itself, as well as the knock-and-announce rule, appear nowhere in the original text of the Fourth Amendment. And Hudson v. Michigan does not overturn a single precedent of the Court.

Also, in interviews Scalia repeatedly mentions, when bashing the use of foreign law (see, e.g., Roper v. Simmons), that no other country (especially England) had or has the exclusionary rule.

So inconsisitency or hypocrisy is not really the issue here.
KipEsquire | Homepage | 06.18.06 - 6:40 am | #

Interesting. But doesn't the exclusionary rule date back to 13th century English common law?
Leonardo | 06.18.06 - 8:47 am | #

I was just reading an old Scalia opinion this evening, in a case dealing with the "commercial speech" doctrine. Justice Thomas has maintained that there's no historial or philisophical basis for segregating "commercial speech" from other speech and giving the former a lesser degree of constitutional protection. Scalia takes the opposite view--that "commercial speech" lacks a historical pedigree entitling it to full First Amendment protection. Thomas is sticking to the text, Scalia to a selective use of "historical" sources.
Skip Oliva | Homepage | 06.19.06 - 12:12 am | #