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and prosecutors could enter court confident that the

judge's hands would be tied by the new law, which says

illegally seized evidence cannot be excluded in federal

proceedings.

Critics of the exclusionary rule often stress that

they wish to replace it with "a more effective remedy" for

illegal police searches.72  The substitute remedy typically

offered is a civil damages action that would enable vic-

tims of unlawful searches to sue police departments for

money damages.  There are at least two responses to such a

proposal.  First, it begs the central constitutional ques-

tion.  In order to accept the suggestion that the judi-

ciary ought to surrender its exclusionary rule in exchange

for enactment of a civil damages action, one must first

accept the proposition that the rule has no constitutional

dimension.  For all of the reasons outlined above, that

proposition is not acceptable.  The exclusionary rule can

be justified on the basis of separation-of-powers princi-

ples.  That means Congress cannot negate the rule with

legislation.

Second, history shows that where courts do not employ

the exclusionary rule, the problem of police lawlessness

only gets worse.  When the exclusionary rule was not in

effect in the state of Ohio, for example, the Cincinnati

police force rarely applied for search warrants.  In 1958

the police obtained three warrants.  In 1959 the police

obtained none.73  Although civil trespass actions were

available to victims of unlawful searches, the potential

threat of a lawsuit had a negligible effect on police

behavior.  (One has to suspect that when evidence of a

crime is discovered through an illegal search, the chances

of recovery through a damage award are substantially

reduced.)  The pervasive attitude among police officers

was that if illegally seized evidence could be used in

court, there was no reason to bother with the search war-

rant application process.74

Since many opponents of the exclusionary rule take

the Constitution's text, structure, and history seriously,

they would be well advised to step back and rethink mis-

guided initiatives--such as the Hatch bill--in light of

separation-of-powers principles.  Again, the general thrust

behind the separation-of-powers doctrine "is that neither

department may invade the province of the other and nei-

ther may control, direct, or restrain the action of the

other."75  Legislative rules that seek to curtail or abol-

ish the exclusionary rule represent an invasion of the

judicial province.  On the surface, such proposals may

appear to be simple rules of evidence.  Beneath the sur-