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mental point is this: the determination of probable cause

belongs to the judiciary.  That is the common-law princi-

ple that was constitutionalized through the Fourth

Amendment.27

Under the U.S. Constitution, then, the power to

search is divided between the executive and judicial

branches.28  That fact has enormous implications for the

American criminal justice system.  To begin with, police

officers must apply for search warrants from judicial

officers before they can lawfully invade the homes and

businesses of citizens.  Judicial officers, in turn, must

remain within their sphere and respect the searching pre-

rogatives of the executive branch.  The judiciary, for

example, cannot issue commands to executive officers with

respect to which houses ought to be searched.  Even if a

judge has firsthand knowledge that a particular home holds

contraband, he cannot issue a search warrant and order the

police to search that home.  That is because the "govern-

mental investigation and prosecution of crimes is a quin-

tessentially executive function."29  The judiciary can only

react to the applications that are brought before it by

agents of the executive branch; the judiciary cannot ini-

tiate an investigation or prosecution.30  Those are just a

few of the implications of the Fourth Amendment's division

of powers between the executive and the judicial branch.

But for purposes of the exclusionary rule debate,

what is most important is this: Whereas Parliament could

tinker with, manipulate, and indeed pervert the common-law

principles pertaining to searches and seizures, American

legislatures must respect the warrant-issuing power the

Constitution has lodged within the judicial branch.  Under

the U.S. Constitution, even a unanimous vote in Congress

cannot alter the Bill of Rights or constitutional proce-

dures.  The Supreme Court recognized that point in Bram v.

United States (1897):

Both [the Fourth and Fifth Amendments] contem-

plated perpetuating, in their full efficacy, by

means of a constitutional provision, principles

of humanity and civil liberty, which had been

secured in the mother country only after years

of struggle, so as to implant them in our in-

stitutions in the fullness of their integrity,

free from the possibilities of future legislative

change.31

Justice Antonin Scalia expressed the same sentiment in

1991 when he said, "It is the function of the Bill of

Rights to preserve [the judgment of the Founders], not