But I am not advocating punishing the man for a murder he has not committed, but for the murder he has already committed. He killed someone and chopped him up. And while we may not discuss the possibility that he will murder again with a jury, it is certainly appropriate to discuss the matter outside of that context.
And while I agree that freedom comes at a price, I do not agree that this is the price that the framers had in mind when they adopted the 4th & 5th Amendments. The exclusionary rule was not adopted until Weeks v. US in 1919 and was not applied to the states until Mapp v. Ohio in 1961. (The court flirted with the idea of a federal exclusionary rule in Boyd v. US in 1889, but quckly backed off.) The modern tendency is for the courts to try to find exceptions to the "rule" they created.
One of the primary purposes of government is to protect the citizens from criminals. But, as you point out, an equally important function of our government is to protect the liberty of the people. A proper balance must be struck. I think it is important to discuss what that balance is.
I have a preference for sticking with the original understanding of the Constitution. I believe holding police officers indivually responsible for their misdeeds is a better protection of the rights of the citizens than the exclusonary rule. This is especially true in light of the myriad exceptions to the rule the court has created. Now the police can violate your rights and in all probability, the evidence will still be admitted.
Then prove it. And do so within a system that protects those rights I enumerated earlier, so that those for whom guilt is not quite so self-evident may be assured that they are given a fair and open trial. Do so within a system that assures that those who are actually innocent can have a fair and open trial. Really, now - there is already an inevitable imbalance in favor of the state over any one individual, simply by virtue of the fact that the state has resources beyond the reach of virtually any one person. How much farther would you tip the scales?
And while we may not discuss the possibility that he will murder again with a jury, it is certainly appropriate to discuss the matter outside of that context.
If you wish. However, I strongly suspect that the purpose of discussing it in any context is the same as the prosecutor's purpose in discussing it in front of a jury. For the prosecutor, his intent is generally to paper over a weak case, lacking evidence for the accusations at hand, by tossing out a series of hypothetical bad acts that might be committed tomorrow. I am asked to weigh the actual loss of freedom for all against a series of hypothetical bad acts that people might commit. In the face of such, I am forced to remain pragmatic and consider this in simple cost-benefit terms. I find that the price of freedom is far outweighed by the benefits it brings to all of us as individuals. If we think, however, that the hypotheticals outweigh the actuality of the situation(s) before us, I would propose that we simply dispense with the formalities and pre-emptively lock everyone up, on the grounds that they might do something bad someday.
The exclusionary rule was not adopted until Weeks v. US in 1919 and was not applied to the states until Mapp v. Ohio in 1961.
I am not so far removed from con law that I have entirely forgotten the history of the exclusionary rule - you omitted Wolf v Colorado from your discussion ;)
But along with the history of the law, it is equally important to understand why the law is what it is. Again I ask, what is the practical benefit of having a Constitution if there are no consequences when it is violated? Which is, of course, exactly what the court considered in Weeks, and again later in Mapp:
"If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land."- Weeks v. United States, 232 US 383 (1914), at 393.
Powerful stuff. And a problem that remains inadequately addressed. How are we to reconcile the protections assured us by the Constitution with the notion that the state may ignore them at will, with no penalty to itself? In such a case, does it really mean anything at all to have "rights", if they are less than sacrosanct?
The state and society are not one and the same - the two sets are not a perfect union. The state is less than society itself - it is a representative of society, an agent thereof. So the question is asked - when we punish the state, are we not in some sense punishing ourselves? When we restrict the state, are we not in some sense restricting ourselves?
And the answer is, of course. Of course we are. When we restrict the agent of society, we restrict society's freedom to act through that agent. But that is what the Constitution does - it restricts society by restricting its agent, the state, in order to promote the liberty of the individual. What we lose in collective "rights", we gain back in individual rights. And of course, the Constitution makes no guarantee of collective rights in any case, nor does the Bill of Rights address the rights of "society" or of its agent, the state - it addresses the rights of individuals. If promoting the individual at the expense of society is what is objected to, then the Constitution itself will have to be scrapped, as it is entirely premised on that very proposition.
In any system where there is some notion of individual liberty, restrictions on the powers and rights of the collective and its agents are inevitable. For individual rights to have any meaning at all, there must always be some ground where the state cannot tread, no matter how noble the goals. One cannot simply suggest that we are "punishing ourselves" when we punish the state - it is inevitably so, if we accept the notion of individual rights at all. And what we lose as a collective, we gain as individuals. This is the choice our society and the founders have made. Insofar as it protects the individual at the expense of the state, the exclusionary rule is entirely compatible with the Constitution, by assuring that those restrictions that the Constitution places upon society and its agents have some practical meaning, and are more than simply noble platitudes to be dispensed with at the convenience of the collective, or the whim of its agents.
It is, we might say, the inevitable logical conclusion of the ideas of the founders. Whether the founders themselves envisioned something exactly akin to the exclusionary rule or not is almost irrelevant. The founders were brilliant and wise men, and key to their wisdom was their understanding that they could not imagine what the future might hold. While it is important to consider the intent of the founders, I think that they would blanch at the notion that we are to be mere slaves to men who have been dead for two hundred years, and simply let them do all the thinking for us. We must be prepared to apply for ourselves the brilliant and wise principles they have left for us, to the issues we have before us, and exercise our own reason and judgement. Let the Constitution be our guide, not our master. It serves us - we do not serve it.
John Adams said that the Constitution and its system of government was wholly inadequate for an immoral people. He might as well have added that it was wholly inadequate for an unthinking and unreasoning people...