well, justice thomas clark's private papers reveals that the mapp's -- the conference discussion over mapp v. ohio almost focused exclusively on this first amendment iesh and that they said it was clearly unconstitutional under a federal precedent. the question as to whether or not the exclusionary rule should be extended to the states was raised briefly by justice douglas, it was dismissed by the other justices. but something odd happened -- and so the conference ended with the court unanimously agreeing that the object senty statute was unconstitutional. something odd happened after the conference happen. in mapp v. ohio a seemingly straightforward case about the girl with the dirty books turned into a landmark supreme court decision about the fourth amend. in his autoography chief justice earl warren explains that after the conference discussion clark, pondering this idea about the exchewingary rule turned to justices hugh oh black and william brennan in an elevator and remarked wouldn't this be a good case to apply the exclusionary rule and do what mapp didn't do? we call this iss

one thing that's happening, which is quite fascinating, would actually make thomas clark, i think, roll over in his grave, is that states are actually more aggressively protecting fourth amendment rights against unreasonable searches and seizures more so than the federal government. the argument in favor of the criminal due process revolution in the first place that you wanted the states on the same page. you didn't want a patchwork of laws governing how people should be treated constitutionally. what's interesting is because of the new judicial federalism and increasing conservativism of the supreme court you have state courts now looking at their constitutions and hopefully carving a pathway for greater protection under their own constitution. in 2005, 16 states allowed for the exclusion of evidence despite that evidence being attained by a mistake that would have been ex clcluded under the good faith exception. so you see a fascinating thing happening at state level, which is a good development for people who like the fourth amendment but it's a difficult challenge because you might

clark. the only other name that rings a bell is lewis brandeis. why do we not know more about the chief justice at the time? talk about that court. thomasat court really does decide a number of very important transitional questions in american law. we are still in the era that you discussed in one of the earlier programs. the supreme court is recognizing a set of rights, for example, the liberty of contract. it is becoming more assertive. being more willing to strike down laws that congress has enacted. in terms of personalities of the justices, and who is really famous in history, it really is holmes and brandeis. other members of court do not really shine out. in part, it is because they have this incredibly evocative way of shouting fire in a crowded theater. clear and present danger, the phrases we have mentioned from schenck are ones that ring through history. that is part of the reason we remember holmes, in addition to his individual contributions. host: we will learn more about holmes and how it may have affected his -- his bots that it brought to this space. let's watch. >> the civil war affected homes, with an understanding th