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prets and applies the law.  Often the relations among the

three branches of government are cordial and they cooper-

ate with one another, but sometimes they clash.  Under a

system of separate and coordinate powers, however, each

branch is expected to remain within its sphere and to

respect the powers that the Constitution has assigned to

the other branches.  Acrimonious disagreements were expect-

ed, of course; encroachment, on the other hand, was pro-

scribed because the usurper would essentially be declaring

itself above the fundamental law of the Constitution.

To illustrate the potentially disastrous consequences

of encroachment or usurpation in criminal cases, it will

be useful to consider a few examples in which one branch

of government blatantly disregards the separation-of-powers

principle.  Police officers would be acting outside their

sphere, for example, if they were to execute prisoners on

the basis of their own assessment of the evidence.  Even

if California state authorities had acquired ironclad proof

that Charles Manson and his cohorts were killers, summary

executions would have been unconstitutional.  The U.S.

Constitution expects executive officers to present their

evidence in court and to respect judicial processes.

The legislature cannot bypass the judicial branch.

Any law that called for the immediate arrest and execution

of certain citizens would be null and void because of the

Constitution's prohibition of bills of attainder and its

requirement that citizens be given an opportunity to

defend themselves.9   Even if Congress had unanimously

passed a resolution declaring Julius and Ethel Rosenberg

guilty of espionage in 1950, the couple would still have

had the right to a trial by a jury in a court of law.

The separation-of-powers doctrine also applies to the

judiciary.  If a judge were to order prosecutors to file

criminal indictments against certain citizens, for example,

he would be acting outside the judicial sphere.  The power

to prosecute is an executive power that cannot be assumed

by any judge or judicial officer.10

Modern academics sometimes disparage the Framers' idea

of checks and balances as a formula for "gridlock," but

such criticism misses the point.  The primary purpose of

the Constitution is to safeguard the freedom of the

American people, not to facilitate government programs or

operations.  As Judge Frank Easterbrook has noted,

"Separation of powers--the inability of any one person or

branch to have its way--was thought to be an essential

component of a free Republic, not a hindrance to good gov-

ernment."11