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face, however, they are an attempt to transfer judicial

power to the executive branch.  That may not be the under-

lying motivation of some of the proponents, but that would

unquestionably be the practical effect of a legislative

abolition of the exclusionary rule.  The legislature

accomplishes that end by "directing" judicial officers and

"restraining" them from exercising their constitutionally

assigned responsibilities.  Any legislative attempt to

abrogate the exclusionary rule should therefore be declared

null and void by the judiciary.

Common Objections to the Exclusionary Rule

Before concluding this study, it will be useful to

address briefly some of the most common objections that

have been lodged against the exclusionary rule.

The Rule Appears Nowhere in the Text of the Constitution

It is true that the exclusionary rule is not men-

tioned in the Constitution.  It is also true that the

exclusionary rule is not discussed in the writings of the

Framers.  But those observations should not end the

inquiry into whether the exclusionary rule can be consti-

tutionally justified.

In general, the Constitution says almost nothing about

what should happen when constitutional principles are vio-

lated.  The Sixth Amendment, for example, provides: "In

all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial."  Nothing is said,

however, about how the speedy trial guarantee is to be

enforced.  The Supreme Court has had to grapple with that

issue because over the years many accused persons have

lodged complaints that the government has denied them a

speedy trial.  The Court has held that it is appropriate

for trial courts to enforce the speedy trial guarantee

against the executive branch by dismissing the prosecu-

tion's case with prejudice.76  A dismissal with prejudice

essentially nullifies the charges set forth in the indict-

ment so that no further action can be taken against the

defendant.

The measured response of the judiciary to speedy-trial

violations is proper--even though the power "to dismiss

indictments" is mentioned nowhere in the Constitution.

Similarly, the exclusionary rule, also unmentioned, is a

proper way to enforce the Fourth Amendment's warrant

clause against executive branch violations.