In
overruling the Wolf case the Court, in my opinion,
has forgotten the sense of judicial restraint which, with
due regard for stare decisis, is one element that
should enter into deciding whether a past decision of
this Court should be overruled. Apart from that I also
believe that the Wolf rule represents sounder Constitutional
doctrine than the new Wolf rule, which now replaces
it.
From the Court's statement of the case one would gather
that the central, if not controlling, issue on this
appeal is whether illegally state-seized evidence is
Constitutionally admissible in a state prosecution,
an issue which would of course face us with the need
for re-examining Wolf. However, such is not the
situation. For, although that question was indeed raised
here and below among appellant's subordinate points,
the new and pivotal issue brought to the Court by this
appeal is whether §2905.34 of the Ohio Revised
Code making criminal the mere knowing possession
or control of obscene material, and under which appellant
has been convicted, is consistent with the rights of
free thought and expression assured against state action
by the Fourteenth Amendment. That was the principal
issue, which was decided by the Ohio Supreme Court,
which was tendered by appellant's Jurisdictional Statement,
and which was briefed and argued in this Court.
In this posture of things, I think it fair to say that five members of this Court have simply "reached out" to overrule Wolf. With all respect for the views of the majority, and recognizing that stare decisis carries different weight in Constitutional adjudication than it does in nonconstitutional decision, I can perceive no justification for regarding this case as an appropriate occasion for re-examining Wolf.
. . . .
. . . It seems to me that justice might well have been done in this case without overturning a decision on which the administration of criminal law in many of the States has long justifiably relied.
. . . .
I would not impose upon the States this federal exclusionary remedy.
. . . .
. . . Our concern here.is not with the desirability of that [exclusionary] rule but only with the question whether the States are Constitutionally free to follow it or not as they themselves determine. . . .
. . . .
The preservation of a proper balance between state and federal responsibility in the administration of criminal justice demands patience on the part of those who might like to see things move faster among the States in this respect.
. . . .
Questions to Consider:
- What does the term "judicial restraint" mean? Does Justice Harlan think the majority has exercised judicial restraint in this case?
- According to Justice Harlan, what was the primary issue raised by the appellant?
- What was the issue that the Court ultimately decided?
- What does Justice Harlan think of the fact that the Court decided a different issue than the one that was originally raised? How does he feel about the decision itself?
- Does Justice Harlan support the notion of states controlling their own criminal justice systems or of the federal government making decisions for them?
