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Is Wilkes V. Wood?

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Originalsits who adhere to the various shades of non-exclusion have failed to offer convincing evidence of the Framer’ intent of non-exclusion or evidence of the Founding Fathers’ affinity to defer to law enforcement authority when serving a warrant. On the contrary, evidence exists that the pervading legal philosophy of the time in which the Bill of Rights was drafted would have supported the exclusionary rule. Two high profile English court cases prior to the drafting of the Bill of Rights in 1791 demonstratively influenced the opinions of the writers of the Fourth Amendment on illegal search and seizure and the exclusion of evidence. The first case is Wilkes v. Wood in 1763 in which the home of John Wilkes, a House of Commons member who…show more content…
Wilkes and Entick were no doubt ‘guilty’ of writing the libelous pamphlets, yet both were awarded civil compensation because the evidence was obtained in an illegal way. It is no far stretch to argue that the policy of exclusion emanates from this precedent established in cases that the Framers were very much aware of at the time of the Bill of Rights’ inception. The Founding Fathers were certainly familiar with these cases, and the preference for individual rights over government interest pervaded the philosophy of the Framers.
Currently, a frequent contention of so called ‘law and order originalists’ who support non-exclusion is that there are “social costs” that are associated with allowing a guilty person to go free due to the exclusion of illegally obtained evidence. Such an argument is anathema to a prominent philosophy of the time. Many Founding Fathers were well-acquainted with the Blackstone Formulation, which nearly all Americans even today are familiar with, that states “the law holds it better that ten guilty persons escape, than that one innocent party suffer.” Both Benjamin Franklin in a private letter and John Adams during his defense of the British soldiers following the Boston Massacre propounded versions of this philosophy. Adams’ word choice is quite telling: “It’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished.” While originalists argue that the it is not part of the
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