Reading Excerpts from Mapp v. Ohio | A Primary Source Close Read w/ BRI

0:04 Hello, and welcome to another episode of the Bill of Rights Institute’s 10th period Close Readings. My name is Kirk Higgins and I’m the Director of Content here at the Bill of Rights Institute. And this week, I am fortunate enough to be joined by my colleague, Josh Schmid. Thanks for having me. Absolutely. And Josh and are going to do something a little bit different with this 10th

0:24 period, which is unpack a landmark Supreme Court case. This week, we’re talking about Mapp versus Ohio from 1961. We’re about to release our latest home workout video, which unpacks this case a little bit. But I thought it’d be good for us just to kind of set the table as to what we’re doing. At the Bill of Rights Institute we think it’s really important when talking about Supreme Court cases

0:44 to really put yourself in a situation where you’re understanding the question at hand and then looking at both sides of the decision that were written about. So both the Court’s ruling and also the dissenting opinion. And we do this because we think it’s great to do this with students, because they’re able to really understand that there is an argument at play. There’s a question being asked and there’s an answer being put forward.

1:07 That doesn’t mean it’s the only way that that question can be answered. And it certainly doesn’t mean it’s the only way that the Court will interpret a certain question for all time. But in looking at it this way, it invites dialogue and invites questioning. It invites curiosity about what that fundamental question is. And in doing that, we begin to see how it is that these different constitutional principles sort of unfold and compete

1:32 with each other and are all in tension with each other. And that how this great deliberative process that the Court does in its day to day proceedings really plays out across history. So, Josh, I’m excited to talk to you about this case, in particular, Mapp versus Ohio. Yeah, so first off, I think we should establish Kirk and I are not by any means constitutional scholars,

1:56 but I think we can give a pretty good general overview of the case. So let me start off just by pulling up my PowerPoint here. Okay, so I think that we should start off by looking at the actual text of the Fourth Amendment. So the Fourth Amendment states

2:17 that the right of the people to be secure in their person’s houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrantial issue, but upon probable cause, supported by author, affirmation and particularly describing the place to be searched and the persons or things to be seized.

2:39 So the important thing to keep in mind here is that the Fourth Amendment, as originally created, was only meant to apply to the federal government. It did not apply to the state government. However, after the Civil War, the 14th Amendment was passed and the important part of the 14th

3:01 amendment for our purposes is what’s called the due process clause. So it states that no state shall deprive any person of life, liberty, or property without due process of law. This began a process called incorporation,

3:23 where the supreme court began to apply the bill of rights to the state government. Initially, it started off with the first amendment, but over time, multiple amendments were incorporated. So at this point in the case, the fourth amendment had been incorporated.

3:48 However, there is more to the story which we will get into as we get into the actual case. So just to kind of take a step back. So the bill of rights, originally amended, added to the constitution in 1791, were intended to restrict the actions of the federal government from things like

4:08 freedom of speech, violation, separation of church and state, all the things that we think about when we think about the bill of rights, were all specifically applied to the federal government 14th amendment has passed, including this privileges immunities clause. And through that clause, then the court has begun ruling on a case by case basis that the bill of rights actually does apply to the states.

4:32 And so then the restrictions of the bill of rights are also restricting state governments from taking certain actions. Is that about right? Yes, that’s a great summary. Great. So then in Mapp V. Ohio, which is one of these sort of several cases we’re looking at, specifically the fourth amendment, and thinking about warrants. So the idea of warrants being

4:54 the government in the form of police officers or whomever, cannot enter into your private residence without having a reason for doing so, that has been approved by a due process. Right. And so this didn’t take place in the Mapp. The Ohio case, I’m guessing, is where we’re heading. Yeah. So not originally.

5:18 A couple of years before Mapp, the supreme court had ruled that the fourth amendment is incorporated to apply to the state. So in other words, states cannot just enter someone’s home without a warrant. What is important to keep in mind, though, is this thing called the exclusionary rule, which basically says that

5:44 if the government illegally enters your home and illegally seizes evidence, that evidence cannot be used in a court of law. So the federal government had adopted the exclusionary rule at the beginning of the 20th century. So the supreme court ruled any illegal

6:06 evidence seized by the federal government cannot be used in a court of law. However, state governments were some state governments, I should say, were still not adopting the exclusionary rule. And Ohio at this point in 1961 was one of those states. So they said, according to their laws, if the police enter someone’s home

6:32 illegally and they take some evidence during that time which proves someone committed a crime, that evidence can be used in a court of law. So in the Mapp case, then, what was the actual particular circumstances that took place.

6:55 Yes. So Dollree Mapp lived in Cleveland, Ohio. She was suspected of harboring a fugitive who was wanted for questioning in connection with a recent bombing. So the police came, knocked on her door and she refused entry to them.

7:21 The police stuck around and ultimately broke into her house. They found the suspect and it was determined that he had no connection to the bombing. Therefore, Dollree Mapp also had no connection to the bombing. However, the police found obscene pornographic material in Mapp’s house.

7:47 So she was ultimately charged with possessing that material, which at the time Ohio law deemed to be illegal. So she appealed her case to the Ohio Supreme Court and argued that because the police entered my home

8:08 without a warrant and they took evidence which is deemed illegal evidence, therefore I should not be charged with this crime. The Ohio Supreme Court said, yes, we recognize this was an illegal search and seizure. However, that does not change the fact that you committed the crime.

8:32 In other words, because we don’t follow the exclusionary rule, then this evidence is still admissible. Now, Mapp appealed her case to the Supreme Court and they took it up. And in a six to three decision, they ruled that the exclusionary rule is

8:55 such an integral part of the Fourth Amendment that it should be applied and incorporated to the states as well. So, like we mentioned before, the Fourth Amendment had already been incorporated to the states. However, nowhere in the Fourth Amendment does it explicitly say anything about the exclusionary rule.

9:16 So it was kind of up in the air at that point still about if illegal evidence can be used in a court of law, should that be incorporated? Now, the interesting thing is that actually in an entirely different case of Wolf v. Colorado, the court had actually addressed this exact question should we incorporate

9:42 this exclusionary rule to apply to the states? And in that they had actually decided, no, we shouldn’t. Now, twelve years later, they’re actually reversing themselves and saying that, yes, the exclusionary rule applies to state. Interesting. So the case went through.

10:04 He said it was six three decision in the state of Ohio. Why it is Mapp v. Ohio, defended. Were they defending the withholding of the exclusionary rule or did the case sort of pivot to that being the central focus when it got to the Supreme Court? Yes. So that uncovers a whole different layer,

10:25 actually, because, yes, on the one hand they were defending, look, this is our law, we know best, we don’t want to follow the exclusionary rule. But they also were arguing up? This is about the original crime.

10:45 This is about whether or not someone can be charged with holding this material which under our law is illegal. And so the Supreme Court is actually going to, in the majority opinion, I should say they completely ignored the first amendment issue of whether the the Ohio law violates

11:07 the First Amendment and they instead focus on the exclusionary rule aspect. So Justice Tom Clark wrote the majority opinion. We have some quotes from him here. that really, I think, showcase his thinking behind his ruling.

11:27 So the first one talks about how important it is for, I’m sorry, how strong the connection is between the exclusionary rule and the Fourth Amendment. So he argues that since the Fourth Amendment has already been incorporated, it’s an essential part of the right

11:50 to privacy, is what he deems the exclusionary rule. It’s so essential that if we’re going to uphold the Fourth Amendment on a state level, we also need to uphold the exclusionary rule on the state level. He also argues that this just makes sense. To do so, if the federal government has

12:13 to follow one rule, the state government should follow the other rule. I think he uses an example where he says it’s silly that a federal prosecutor in one office has to follow entirely different rules than the state attorney general in the office next door.

12:34 So he kind of uses this common sense argument for why the exclusionary rule should be adopted. He also talks about how important it is for the federal government and the states to work together to solve crime. So I don’t know if he would go so far as to say there should be a complete blurring

12:58 of lines, but that’s kind of the theme that he’s going towards. And his final point of emphasis is on the integrity of the government. So if we allow illegally seized evidence to be used in a court of law, he says that that is going to tarnish our court system, because if a government can’t follow its own laws,

13:22 then that’s going to quickly undermine the entire system. Yeah. And I think that last quote there, the criminal goes free if he must, but it’s the law that sets him free. I think it’s one of the most well known lines that comes out of this decision, and it’s really powerful. The rule of law is something that we think about a lot here at the Bill of Rights.

13:43 And here, I think we’re seeing interesting instances of it, both in how it is that law is shaped through judicial opinion and decision, and how it builds in the American context on each other. And there’s very rational and reasonable conversations about different applications, which leads to a slow process.

14:05 But what I see Tom Clark saying here, justice Tom Clark saying here is that it’s slow and it’s deliberate, but that’s what ensures that it is working towards as just a system as we can work towards, which is interesting. And talking about the law enforcement body letting someone go who’s breaking the law is a strange concept.

14:27 And yet that seems to be, at least in this decision, what Justice Clarke is putting at the center of our legal system. This idea that we have to follow the laws. Both the people have to follow the laws, but also the government has to follow the laws, which has echoes of the Federalist Papers were Publius writes the government first

14:48 enabled itself to control the governed and then it must enable to control itself. Right. I mean, this sort of reflexive purpose, I think is really interesting, I think is another one of the reasons why this case sits at the heart of when we think about sort of these seminal landmark Supreme Court cases. Mapp v. Ohio is certainly one that we look back to.

15:10 Yeah definitely. And during this time, that’s very much a theme during this era of the Court. The Warren Court is that the government needs to restrain itself when prosecuting criminals. So other major examples are Gideon versus Wainwright which established that

15:38 the right to a lawyer is incorporated at the state level, as well as Miranda versus Arizona, where the famous Miranda rights come from. So these three cases, just a general theme, is expanding the rights of the accused using this logic that Justice Clark uses, that the government needs to respect

16:05 the rule of law if it’s going to be prosecuting criminals, because that’s such an integral part of our constitutional system. And even with that, though, this case wasn’t unanimously decided. There were dissenters. Yeah, that’s correct. So there were three dissenters,

16:25 and Justice John Marshall Harlan wrote the dissent. And I think, first off, it’s important to note that Harleyn was not pro illegal seizure, necessarily, but he had a lot of judicial

16:45 arguments for why he thought that this case should not be decided in this way. So, first off, he points to the previously mentioned decision in Wolf vs. Colorado, which had occurred twelve years before, and he argues that the Court needs to use judicial restraint.

17:09 If we made a decision twelve years ago that states don’t need to follow the exclusionary rule, then we have a responsibility to be consistent with that. Because if the court just flip flops every decade, it’s really going to overturn the legitimacy of the court.

17:29 And so that’s kind of echoing the theme of rule of law as well, because one important and part of the law is it consistently applied right. And so Justice Harland is saying if we don’t consistently make decisions that’s actually going to undermine the rule of law.

17:50 He also argues that this is actually truly about the First Amendment. He’s going to go back to the origins of the case, which was about possession of obscene material. So he says, basically, why are we even talking about the exclusionary rule when this is about that Ohio law?

18:16 He then goes on to say, though, okay, if you insist that we talk about this, a, it’s not going to promote stability in the court, b it’s also going to start to undermine state authority. So he says that the specific sub trial

18:40 procedure which in every mature legal system will vary greatly in detail. So in other words, the Supreme Court does not know all, and he says, let’s leave it up to the discretion of the states in order to make their own laws and their own criminal justice system.

19:02 It’s only when there are clear, egregious violations of due process that the Supreme Court needs to step in. And he says, well, look, multiple states are not following the exclusionary rule. They probably have a good reason. Let’s just respect that. And finally, he also says at the heart of a criminal court case is

19:28 whether or not an individual is guilty or innocent and whether or not the evidence seized to determine that guilt or innocence is done so legally has no bearing on the actual guilt or innocence of the individual. So he’s basically saying the exclusionary rule is unimportant.

19:50 It doesn’t apply to what a true justice system is attempting to achieve. Interesting. So. Like we said the outset. When we’re looking at these Supreme Court cases. You can see two individuals who are looking at the Constitution and interpreting it in radically different ways.

20:13 Which I think is the power of sort of unpacking these Supreme Court cases because it allows us to look at the various ways that the Constitution has been debated and argued about and thought about. Particularly when it comes to this issue of incorporation. Thinking about how it is that the federal government applies the restrictions of the Bill of Rights to the states is a significant question.

20:34 And one that here you can see two jurists taking very different approaches to both understanding that. But also to the way in which either doing so or not doing so supports and advances the rule of law. Which is ultimately. If they are working to uphold the Constitution. They are working to uphold the fundamental law in the United States.

20:54 And so both of them are concerned about doing that thing, and yet they sort of take different avenues to getting there. Yeah exactly. I think my understanding is that Justice Harland emphasizes the federalism system of our government which separates

21:16 authority between the federal and the state. And so he argues that in order to uphold the rule of law, we need to allow the states generally to have discretion. On the other hand, Justice Clark seems to emphasize more of the individual rights aspect to the rule of law.

21:36 So we’re rights being violated? And if so, what is the recourse for a citizen to address that? And he believes that the Supreme Court has an obligation to address any violations of individual rights that are happening.

22:01 Yeah, really interesting. And again, really asking some significant questions, which the Supreme Court cases do. And it shows, I think, the power of the deliberation that happens within the court. Well, Josh, thanks for reviewing this case with me. I’ve really enjoyed walking through it with you, and I hope everyone will have an opportunity.

22:22 Take a look at our new homework help video that we just released on this case that gives sort of a shorter summary, but I really enjoyed diving into more of the details with you, Josh. So thanks a lot. And thank you, everyone for tuning in. And we’ll see you next time. Thanks.