Rights without Remedies: the Court That Cried "wolf"

When I first read the majority and dissenting opinions in Hudson u. Michigan, 1 a 5-4 decision issued in June 2006, I had the odd feeling that I had read this opinion before-not just that the Justices were revisiting recurring and fundamental constitutional issues, but that I had read these opinions before. And I had. Because in Hudson, the Justices resurrected arguments seemingly settled in a series of opinions issued between 1949 and 1961.2 All of these cases involved the same set of rights-those protected by the Fourth Amendment. Those rights were recognized as fundamental by the founding generations in the eighteenth century and were imposed on the states as fundamental rights protected by the Due Process Clause of the Fourteenth Amendment in the Court's 1949 decision in Wolf u. Colorado. 3 In Wolf, the dispute among the Justices was whether due process also required that the states enforce the exclusionary rule that the Court had applied in federal cases for decades. 4 The majority's answer in Wolf was "no." The exclusionary rule was