The Fourth Amendment protects the “right of the people to be secure . . . against unreasonable searches and seizures,” but determining what this right means and how it should be vindicated has, to put it mildly, long been controversial. In fact, because of the “wide applicability of government intrusions, ranging from countless thousands of daily intrusions at airports, traffic stops, drug testing, traditional criminal law enforcement practices, regulatory intrusions[,] . . . and many other searches and seizures, the Amendment is the most commonly implicated and litigated part of our Constitution.” Perhaps the most contentious element in the controversy surrounding the Fourth Amendment is determining how to enforce it—whether by the exclusionary rule, which requires unlawfully obtained evidence to be suppressed from a criminal prosecution; a civil damages remedy; an administrative sanction; or some other means.

The remedial controversy surrounding the Fourth Amendment also implicates broader questions about the relationship between a right and its remedy, evidenced by the pair of quotes above. These questions are both abstract and practical. On the abstract side, Chief Justice Marshall’s “general and indisputable rule” from Marbury exhibits the deeply-held normative principle that when a right is declared it ought to be accompanied by an attendant remedy. Llewellyn affirms this principle by noting that the causal relationship also runs in the other direction: without a remedy, there is no right. On the practical side, Llewellyn’s comment underscores that what courts do, as opposed to what they say, is the effective regulator for the scope of a given right. That is, even if a court says a lot about the value of a right, the manner in which it vindicates that right is really what determines its value.