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society and punished.  An impatient public can sometimes

encourage law enforcement officials to cut corners in

their quest to apprehend the guilty.  After all, the

rationale runs, serious harm might result if shortcuts are

not taken.

Thus, one of the great challenges of crime fighting

in a free society is to develop and maintain legal proce-

dures that will make it possible to bring the guilty to

justice without subjecting citizens to unreasonable search-

es, unfounded accusations, or even death.  In facing that

challenge, Americans must resolve many difficult issues

that plague our criminal justice system.  This study will

focus on one such issue--the constitutionality of the

exclusionary rule.

The study will show that the exclusionary rule can be

justified by separation-of-powers principles.  When agents

of the executive branch (the police) disregard the terms

of search warrants, or attempt to bypass the warrant-issu-

ing process altogether, the judicial branch can respond by

"checking" that misbehavior when it is able to do so.  As

it happens, the most opportune time to check such

unconstitutional behavior is when executive branch lawyers

(prosecutors) attempt to introduce illegally seized evi-

dence in court.  Because the exclusionary rule is the only

effective tool the judiciary has for preserving the

integrity of its warrant-issuing process, any legislative

attempt to abrogate the rule should be declared null and

void by the Supreme Court.

First Principles: The Separation-of-Powers Doctrine

Before examining the constitutional merits of the

exclusionary rule in detail, it will be useful to begin

with first principles and then proceed, through deduction,

to the narrow question of whether the exclusionary rule

can be justified in criminal proceedings.

It is no overstatement to say that the central

organizing principle of the U.S. Constitution, as distinct

from its substantive principles, is the separation-of-pow-

ers doctrine.  Although the phrase "separation of powers"

does not appear in the constitutional text, no one can

deny that the Constitution is structured on that maxim.

Article I vests certain "legislative Powers" in Congress;

Article II vests the "executive Power" in the president;

and Article III vests the "judicial Power" in the Supreme

Court.  As Justice Joseph Story observed,