Exclusionary rule

“ It is a peculiar virtue of our system of law that the process of inclusion and exclusion, so often employed in developing a rule, is not allowed to end with its enunciation, and that an expression in an opinion yields later to the impact of facts unforeseen. ”

“ I speak in the presence of enlightened constitutional lawyers and statesmen, and I do not fear a contradiction when I assert that the doctrine of exclusion is not to be found in the principles, or in the analogies of our Constitution, or in the history of our country, or in the opinion of any statesman whose name or memory has reached us. ”

“ They made a noble and privileged order—open to the whole world. No one could complain of an unjust exclusion, for the only thing that could exclude from the order was unwillingness or inability to follow the Rule. ”

“ As for you unto whom no certain place is limited and assigned for to inhabit, but who are debarred and excluded only out of one, are thus to think, that the exclusion out of one city alone is an overture and ready way made unto all others.
Now if any man will object and say; In this case of exile and banishment we are disabled for bearing rule and office of state, we sit not at council table in the senate house; we are not presidents in the public plays and solemnities, etc. ”

“ The necessity for an exclusion like this, it will be admitted by all, must indeed by very strong to justify it: it will never be recognized for trivial reasons much less upon those that may be simulated or unworthy. ”

“ If its exclusion in one case, is calculated to counteract parties, factions or aristocracies, formed of states, its exclusion in the other, would prevent parties, factions or aristocracies, formed of citizens. By excluding it in both, the only tool with which ambition and avarice can undermine and destroy a free government, can no longer be forged. ”

“ Of course this is not to say that their existence on the books may never play a significant and even decisive role in private decision making. But the question in each case, if the right of the individual to make his own decisions is to remain viable, must be: was the discriminatory exclusion in fact influenced by the law? ”

“ All these exceptional jurisdictions are objects of the liveliest apprehension to democracy, because they infringe the rule of uniformity, which is the image and often the caricature of equality, and also because they are a stronghold of efficiency. ”

“ Does the fact that some men are excluded from office, in any sense or measure, make others more secure in their lives or in their property or in their rights? Can anybody tell me how? Or do they, perhaps, prevent even those who are excluded from official position from doing mischief if they are mischievously inclined? Does the exclusion from office, does any feature of your system of political disabilities, take the revolver or the bowie-knife or the scourge from the hands of any one who wishes to use it? ”

“ On the contrary, we think that the spectacle of the exclusion en masse from that service of a body of citizens otherwise highly desirable in point of intelligence and character-solely by reason of their employment by the Government-and the imposition in consequence of a heavier burden upon other citizens, whether that exclusion would be in deference to a supposed ancient rule or because of a conclusive presumption of bias against an accused, would constitute a serious reproach to the competency and efficiency of the administration of the system of jury trials. ”

“ A fourth ill effect of the exclusion would be, the banishing men from stations in which, in certain emergencies of the state, their presence might be of the greatest moment to the public interest or safety. There is no Nation which has not, at one period or another, experienced an absolute necessity of the services of particular men, in particular situations, perhaps it would not be too strong to say, to the preservation of its political existence. ”

“ If there is any franchise, whose exercise can be attended with real danger, let it be withheld. Such exclusion, or withholding, is not an anomaly, or inconsistency, in our system of conciliation, because, when the exclusion is not arbitrary and gratuitous, there is no insult. Such an exclusion forms no link of the chain, and the Roman Catholic will submit to it cheerfully; just as it would be the duty of the Protestant if, for similar reasons, a similar sacrifice were required from him. ”

“ The general rule that the expression of one thing is the exclusion of others is subject to exceptions. Like other canons of statutory construction, it is only an aid in the ascertainment of the meaning of the law, and must yield whenever a contrary intention on the part of the lawmaker is apparent. ”

“ There is no law which would prevent every member of the Lords and Commons from being Dissenters. The Catholics could not bring into Parliament half the number of the Scotch members; and yet one exclusion is of such immense importance, because it has taken place; and the other no human being thinks of, because no one is accustomed to it. I have often thought, if the wisdom of our ancestors had excluded all persons with red hair from the House of Commons, of the throes and convulsions it would occasion to restore them to their natural rights. ”

“ It is juggling with words to say that all the independents make up a single 'class,' and by reason of that fact must be subjected to a single rule. Whether the class is divisible into subclass § is the very question to be answered. There may be division and subdivision unless separation can be found to be so void of rationality as to be the expression of a whim rather than an exercise of judgment. 'We have no right,' it is now said, 'to conjure up possible situations which might justify the discrimination.' The court has taught a different doctrine in its earlier decisions. ”

“ As a corollary to the proposition that all institutions must be subordinated to the law of equal freedom, we cannot choose but admit the right of the citizen to adopt a condition of voluntary outlawry. ”

“ The plurality's newly minted clear-statement rule is also fundamentally inconsistent with the nature of the common law which, by definition, evolves and develops over time and does not, in all cases, "say what may be done." ”

“ KING for the motion. It is impossible to carry the system of exclusion so far; and, in this instance, we refine too much by going to Utopian lengths. It is a mere cobweb.
Mr. BUTLER. We have no wav of judging of mankind but by experience. Look at the history of the government of Great Britain, where there is a very flimsy exclusion. Does it not ruin their government? A man takes a sea in Parliament to get an office for himself or friends, or both; and this is the great source from which flows its great venality and corruption. ”

“ And, if it were, there might be many motives to induce the executive to sacrifice his independence to friends, to partisans, to selfish objects, and private gain, to the fear of enemies, and the desire to stand well with majorities. As to the latter supposed advantage, the exclusion would operate no check upon a man of irregular ambition, or corrupt principles, and against such men alone could the exclusion be important. In truth, such men would easily find means to cover up their usurpations and dishonesty under fair pretensions, and mean subserviency to popular prejudices. ”

“ In such a case the limitation upon the power operates not only to fordid the exclusion, as the result of the expressed enactment of an unconstitutional condition, but also, in the nature of things, prohibits the absolute exclusion, although the reason for the attempted exertion of such a power be not given. ”

“ Whenever it be made an article of a constitution, or a law, that the right of voting, or of electing and being elected, shall appertain exclusively to persons possessing a certain quantity of property, be it little or much, it is a combination of the persons possessing that quantity, to exclude those who do not possess the same quantity. It is investing themselves with powers as a self-created part of society, to the exclusion of the rest.
It is always to be taken for granted, that those who oppose an equality of rights, never mean the exclusion should take place on themselves ”

“ My lords, I am very dubious as to the amount of security afforded through the means of a system of exclusion from office, to be carried into effect by a law which it is necessary to suspend by an annual act, that admits every man into office whom it was the intention of the original framers of the law to exclude. It is perfectly true it was not the intention of those who brought in that suspension law originally, that dissenters from the church of England should be permitted to enter into corporations under its provisions. ”

“ Unequal, partial, and discriminatory legislation, which secures this right to some favored class or classes, and denies it to others, who are thus excluded from that equal protection designed to be secured by the general law of the land, is in clear and manifest opposition to the letter and spirit of the foregoing constitutional provisions. ”

“ If more than one issue is raised in the debates, one can never be sure on what basis the action was predicated. Unlike a court, which is presumed to be disinterested, in an exclusion case the concerned house is in effect a party to the controversy that it must adjudicate. Consequently, some members may be inclined to vote for exclusion though they strongly doubt its constitutionality.' 81 Harv.L.Rev., at 679. ”

“ It was lately stated, that if a legislature can by law form a new society, to draw money artificially from the rest of a nation, that the residue of the old society was no longer in a social state. By the association of the people, the principle of an equality of rights may be asserted and established. By the association of the government, the contrary and artificial principle of exclusive privilege, may be asserted and established. ”

“ Put more succinctly, it is this injection of the rule of law that allows society to reap the benefits of rejecting what political theorists call the 'state of nature.' American society, of course, bottoms its systematic definition of individual rights and duties, as well as its machinery for dispute settlement, not on custom or the will of strategically placed individuals, but on the common-law model. ”

“ It is impossible to say whether those people who advocated the policy of exclusion really believed in its practica- bility or not, but it was a policy which had been followed during several centuries, and they cherished the quiet peace of seclusion. ”

“ Such an argument, as might naturally be expected, operated rather to provoke the Whigs to perseverance than to dissuade them from their measure: it was, in their eyes, an additional merit belonging to the exclusion bill that it strengthened, by one instance more, the authority of former statutes in reprobating a doctrine which seems to imply that man can have a property in his fellow-creatures. By far the best argument in favour of the restrictions, is the practical one that they could be obtained, and that the exclusion could not ”

“ The theoretical basis of the civil system was, therefore, the assumption that, in advance of action by the civil authority, man as such had no rights. All must be assumed to be under the same constraints and restrictions, until, by franchises, privileges, and exemptions, each of which was capable of proof by legal evidence, documents, or tradition, some had emancipated themselves from the restrictions. ”

“ In face of such dispositions as the workmen manifested towards law, parliament, and government, was it right that the present system of almost entire exclusion should prevail? Then came the sentence that, in that stagnant or floundering hour of parliamentary opinion, marked a crisis. “I call upon the adversary to show cause, and I venture to say that every man who is not presumably incapacitated by some consideration of personal unfitness or of political danger, is morally entitled to come within the pale of the constitution. ”

“ Another ill effect of the exclusion would be the temptation to sordid views, to peculation, to the corrupt gratification of favourites, and in some instances to usurpation. A selfish or avaricious executive might, under such circumstances, be disposed to make the most he could for himself, and his friends, and partisans, during his brief continuance in office, and to introduce a system of official patronage and emoluments, at war with the public interests, but well adapted to his own. ”

“ In determining whether or not a state law violates the Equal Protection Clause, we must consider the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification. ”

“ And inequalities that result not from hostile discrimination, but occasionally and incidentally in the application of a system that is not arbitrary in its classification, are not sufficient to defeat the law. ”

“ By the Constitution of England, every liege subject is entitled, not merely to the protection of the laws, but is admissable to all the franchises and all the privileges of the State. For the argument I have now to deal with is this: "That by some principle of the Constitution, independent of the positive law, the Roman Catholic is necessarily excluded." What, then, is this principle of exclusion? ”

“ There is a conviction that the privileges of individuals have been unduly guarded while the rights of the public were neglected, that the rights of individuals have received an excess of protection while the welfare of the great mass of the people has been sacrificed. The present problem of the student of sociology is, How can the rights of individuals be adjusted, yet so as to maintain the superior interests of all the people? This can be accomplished largely, if not completely, by the abolition of usury. ”

“ So far from admitting the exclusion of classes of men, however incompetent, the provision does not so much as admit of the exclusion of individuals from any office. An individual, or a knot of individuals, bent upon affording a constant obstruction to all business, and selected perhaps for that very purpose, might be returned to the supreme assembly, or any other; nor could they be got rid of without a breach of the natural and inviolable rights of man, as declared and established by this clause. ”