Civil Rights Law Journal Article: The Bill of Rights in Its 200th Year
INTRODUCTION
As we justly celebrate the 200th anniversary(2) of our Bill of Rights, which James Madison, its primary author and legislative sponsor,(3)referred to as "the great rights of mankind,"(4) we note with pride that this uniquely American innovation--a comprehensive set of express, supreme written limitations on the powers of government and guarantees of individual freedom and equal justice--continues to gain adherents all around the world.(5) Few Americans would gainsay the bold and simple promise laid down by the Supreme Court at the close of the Civil War: "The Constitution of the United States is a law for rulers and people, equally in war or peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances."(6)
Yet, at the dawning of the third century of the remarkable American experiment in limited self-government, in the bicentennial of the adoption of the most famous and inspiring part of that Constitution, the Bill of Rights, we find ourselves in the midst of a war--a "war on drugs"--fighting against a dangerous and loathsome "class of men"(7)--those who would enrich themselves(8) by selling the death and misery of such drugs to our people(9)--which raises hard questions about the enduring truth of those words, and which sternly tests our continuing commitment to the principles which they adjure. As we wrestle as a society with the grave challenges posed to our domestic security and civic morality by crime in general, and by drug crime in particular, it is far from assured that our political culture or our judicial system, itself, is still willing to pay the price which fidelity to our fundamental precepts demands.
Over the last three decades, we have witnessed an explosion in the abuse of drugs and alcohol in our society, which has taken a heavy toll on our people and our institutions. Outraged by an epidemic of drug-related crime, (10) and by the sight of residential neighborhoods being turned into open-air drug markets, the public has, understandably, looked to the criminal justice system for solutions. The reaction of the popular branches of government--the legislatures and the executives--has been an unprecedented effort to win the drug war by getting tough on drug crime. As a blue-ribbon American Bar Association Special Committee has recently reported,(11) the resulting torrent of drug arrests,(12) prosecutions,(13) and convictions(14) has placed extraordinary demands on every segment of the criminal justice system,(15) stretching to the very limit the already overtaxed and underfunded resources(16) available to our police, prosecutors, public defenders, courts, and correctional institutions.(17) The strain of this effort has led to "crowd[ed] dockets and jails, and dilut[ed] law enforcement and judicial efforts to deal with other major criminal cases."(18)
When these intensive and costly law enforcement efforts(19) have failed to eliminate, or even to control, the problem,(20) it has been the criminal justice system at which the public has directed its wrath and disappointment.(21) What the public does not know, however, is that the vast majority of serious crimes--more than 90% of them, in fact--never even reach our criminal justice system. Indeed, government crime statistics show that less than ten percent of the crimes which most concern the public even result in arrest.(22) The public's expectations that the courts should control or prevent crime, and drug crime in particular, "cannot be reconciled," the task force reported, "with the sense of criminal justice professionals, strongly supported by the data, that the system itself has a limited role in crime control and crime prevention."(23) "The resulting frustration" of those whom the public mistakenly holds accountable for the failure to eliminate the intractable drug problem, the ABA Special Committee report concludes, "has led to instances of corruption(24)and the ignoring of constitutional restrictions by some criminal justice officials."(25)
Whether the emphasis on criminal prosecution as the primary weapon(26) in the drug war has, on balance, produced desirable results sufficient to justify its tangible and intangible costs is still an open, and debatable,(27) question, which is beyond the scope of this article.(28) Unfortunately, one result is unmistakable: the drug war has led to an increasing climate of antipathy toward our criminal justice system in general,(29) and toward the individual protections safeguarded in our Bill of Rights, in particular.
Most of those directly involved in the day-to-day processing of the burgeoning number of criminal cases know that it is a lack of adequate resources,(30) not enforcement of our constitutional rights,(31) which is most responsible for what the Supreme Court has referred to as a "veritable national crisis in law enforcement caused by smuggling of illicit narcotics."(32) Yet, a recent public opinion survey reveals this chilling result: sixty-two percent of respondents, i.e., more than three-fifths of our population, would be willing to give up some of their constitutional rights in order to stop illegal drug trafficking.(33) Pressured by the public's understandable impatience to "win" the war on crime, and frustrated by the real difficulties of doing so through a criminal justice system not equipped for the task,(34) politicians at every level of government frequently respond by supporting ever more stringent criminal laws, showing ever less concern for the protection of individual rights.(35) The Supreme Court, with a solid conservative majority in the ascendancy,(36) and increasingly willing--principles of judicial restraint and stare decisis to the contrary notwithstanding(37)--to overrule prior expansive interpretations of the rights of the accused, frequently recurs to "the horrors of drug trafficking,"(38) to justify its growing tendency to leave to the popular branches of government (as a matter of separation of powers)(39), and to the states (as a matter of federalism)(40), the task of balancing the rights of the individual against the interests of the majority.(41) Indeed, the High Court appears to be rapidly accelerating delivery on the political promises of recent presidents not only to limit, but to aggressively roll back,(42) the perceived excesses of the Warren Court of the 50s and 60s in the area of the rights of the accused, becoming what one of its members has called "a loyal foot soldier" in the war on drugs.(43)
As a result of these developments, and of sensationalized media coverage of criminal justice issues,(44) it has become ever more fashionable to decry the perceived excesses of the modern Supreme Court's supposed undue emphasis on the "rights of criminals," as opposed to the "rights of the public" or those of the victims of crime. Much of this criticism appears to be based upon the premise that the Warren Court wrote the guarantees of criminal due process into the Constitution during the 1950s and 1960s. True, before this era, scant attention had been paid by the Supreme Court to such protections, especially with respect to state prosecutions. But it is difficult to reconcile such attacks with the demonstrable fact that when the Framers chose to identify and enshrine the "Great Rights of Mankind" in the Federal Constitution, they, themselves, in the main chose guarantees which operate primarily, if not exclusively, to limit the scope and process of criminal prosecutions. Indeed, of the eight amendments containing specific guarantees, no less than four--the Fourth, Fifth,(45) Sixth, and Eighth--are devoted to the procedural rights of criminal defendants. As a matter of fact, as illustrated below, 14 of the 25 specific protections contained in the Bill of Rights, more than half, operate exclusively to circumscribe the powers of the government as prosecutor, while only 2 such guarantees always arise outside the criminal justice process.
The blessings of liberty are easily appreciated and always more comfortably lauded when viewed in the abstract; it is only when they must be applied, in real controversies, to limit the ambit of governmental action, action pursued in the name and in the collective interest of a concerned community at large, that they invite hostility and opposition.(46) As in past periods of great strife and conflict, the specter of a hated and feared enemy has aroused the passions of our people for fast and simple remedies.(47)
It is the very pressure--albeit, democratic pressure--which is generated in support of such nostrums, which makes them so dangerous to our liberties: Precisely because the need for action against the drug scourge is manifest, the need for vigilance against unconstitutional excess is great. History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure. The World War II relocation-camp cases, Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943); Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944), and the Red Scare and McCarthy-Era internal subversion cases, Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919); Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951), are only the most extreme reminders that when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.(48)
As a consequence of these powerful currents of emotion, of the understandable zeal of the present war's combatants to defeat drug abuse and to put its purveyors behind bars, and of their impatience to remove all barriers to the success of their mission, this drug war poses a serious threat to a number of individual constitutional guarantees of fairness and freedom as they have, until recently, come to be understood and applied. Even more alarming than the prospect of a narrowing of particular rights protected by the first ten Amendments, however, is a growing public, political, and even a judicial intolerance for the very core concept of the Bill of Rights, itself: the fundamental principle that government's police powers--even its authority to enforce its criminal laws--are subject to substantive, enforceable limitations which are to be honored, notwithstanding the incidental cost (which is much smaller than is commonly assumed) to legitimate governmental objectives, for the ultimate purpose of ensuring our citizens' inalienable rights. This is a time for Americans, and in particular for Americans involved in our criminal justice system,(49) to ask themselves whether we measure up to James Russell Lowell's immortal challenge: "They have rights who dare maintain them."(50)
THE PROBLEM OF PROTECTING INDIVIDUAL RIGHTS FROM ASSAULTS BY A DEMOCRATIC GOVERNMENT
A. THE DANGERS OF MAJORITY TYRANNY
The essential dilemma of democratic government, the Framers realized, lay in the need to give it sufficient powers to govern, but not enough to establish tyranny. As Madison explained so succinctly in The Federalist: In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself.(51)
What is often forgotten is that the Bill of Rights was invented to restrain not a monarchical or oligarchical government, but a democratic, republican one. It is easy to understand the need to protect the subject from an unelected tyrant; less easy to comprehend the same requirement in a government of, by, and for the people themselves. A large part of the answer lies in the Framers' belief that oppression and invasion of the rights of the individual were as much to be feared by popular governments, as by autocratic ones. James Madison and his contemporaries well understood that in a republic, the real danger of despotism would come from "the majority of the Community . . . not from the acts of Government contrary to the sense of its constituents."(52)
To preserve individual rights, Madison felt, it was necessary to insulate them from the threat of excessive measures adopted in response to the passions of an aroused and single-minded populace during times of crisis. The great object in view is to limit and qualify the powers of government.... [The Bill of Rights] ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority.(53)
Writing with the perspective gained from more than a century-and-a-half of experience with the ever-flowing tides and currents of one popular cause after another, and in the midst of a terrible world war against the rising forces of totalitarian oppression, Justice Robert Jackson, a former Attorney General of the United States and future prosecutor in the Nuremburg Trials, explained the ageless and unchanging purpose of the Bill of Rights in our democratic frame of government:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.(54)
B. ENSURING INDIVIDUAL LIBERTY BY LIMITING THE POWERS OF GOVERNMENT IN ITS ROLE AS PUBLIC PROSECUTOR
The long, painful, and uneven history of freedom from arbitrary government, from Magna Cartain 1215, to the Parliamentary Petition of Right of 1628, to the English Bill of Rights of 1689, to the Virginia Declaration of Rights of 1776, to the Constitution of 1787, and finally to the Federal Bill of Rights adopted in 1791, is in large measure a chronicle of enlightened popular reaction to abuses of the criminal laws perpetrated by both Parliament and the Crown.(55) The Framers knew that constant vigilance was required to check the excesses which were likely to occur in the heat of political, as well as military, battle. To that end, they insisted on arming those individuals whom the government would seek to punish, i.e., to prosecute, with the shield of that very Bill of Rights(56) which we are now celebrating.
That shield was designed to be upheld by an independent judiciary,(57) which the Framers saw as an "impenetrable bulwark against every assumption of power in the legislative or executive,"(58) a means of defending individual liberties against governmental overreaching in the prosecutive function. By providing a means for checking the abuses of government, even democratic government, directed against criminal defendants, even the most contemptible among them, the Framers sought to ensure that the rights of all citizens might be protected. It was first and foremost the criminal justice system which the Framers had learned through painful experience was most in need of principles of restraint and regulation; Professor Schwartz, for one, has expressly noted what should be obvious: "American bills of rights sought foremost to correct the deficiencies of English criminal law."(59) And so, when it came time for the Constitution to be ratified by the states, it was a Federal Bill of Rights severely limiting the powers of the prosecution which those states insisted upon as a condition for joining the Union.
When, on June 8, 1789, Madison introduced his proposed federal Bill of Rights, he had as a basis a printed pamphlet containing all of the recommended amendments proposed by eight of the state conventions which had ratified the Constitution. These contained over two hundred provisions in all, comprising nearly one hundred distinct amendments.(60) Professor Schwartz writes, "The state proposals reflected the consensus that had developed among Americans with regard to the fundamental rights that ought to be protected by any Bill of Rights worthy of the name."(61)Professor Rutland, Editor-in-Chief of The Papers of James Madison, concurs: Madison had gleaned his final list from over 200 separate proposals made in the state ratifying conventions. He had distilled the key proposals common to all the state plans.... Madison skirted the controversial proposals of the states.... These matters did not belong in a set of amendments meant to delineate the inviolable rights of mankind, Madison reasoned. Explaining his selection to Governor Edmund Randolph, Madison said he had tried to limit his amendments "to points which are important in the eyes of many and can be objectionable in those of none."(62)
There are 25 distinct individual rights spelled out in our first ten amendments.(63) Of these, at least 20, 80 percent of the total, involve liberties which were chiefly aimed at, and have been most often interposed in, limiting the scope or regulating the process of the criminal justice system. These are: (1) Establishment of Religion; (2) Free Exercise of Religion; (3) Free Speech;(64) (4) Free Press; (5) Assembly; (6) Petition [for Redress of Grievances]; (7) Searches and Seizures; (8) Grand Jury Indictment; (9) Double Jeopardy; (10) Self-incrimination; (11) Speedy Trial; (12) Public Trial; (13) Jury Trial; (14) [Cause and Nature of] Accusation; (15) Confrontation [of Witnesses]; (16) [Compulsory Process for] Witnesses; (17) [Assistance of] Counsel; (18) Bail; (19) [Excessive] Fines; and (20) [Cruel and Unusual] Punishment. Of the other five, one, the Fifth Amendment's Due Process Clause, has so many varied applications, both criminal and civil, that its "primary" context is extremely difficult to discern.(65) Two others, the Second (right to bear arms) and Third Amendments (no quartering of soldiers in peacetime) arise too infrequently to be characterized accurately. Finally, only two rights, the Just Compensation Clause of the Fifth Amendment, and the Civil Jury Trial guarantee of the Seventh Amendment, have no bearing on the operation of the criminal justice system. An absolute majority of the specific guarantees in the Bill of Rights as a whole--14 of 25 in all--apply exclusively to criminal prosecutions:
The Fifth Amendment guarantees (1) indictment by a Grand Jury; (2) against being placed twice in jeopardy for the same offense; and (3) against self-incrimination. The criminal suspect is afforded rights under the Sixth Amendment (4) to a speedy trial; (5) to a public trial; (6) by an impartial jury; (7) after having been informed of the nature and cause of the accusation; (8) to be confronted with the witnesses against him; (9) to have the assistance of counsel; and (10) to have compulsory process for obtaining favorable witnesses. The Eighth Amendment prohibits (11) excessive bail; (12) excessive fines; (13) and cruel and unusual punishments. A fourteenth guarantee, the right to be free from unreasonable searches and seizures under the Fourth Amendment,(66) is all-but-entirely associated with the criminal process as well, though it does have a few applications unrelated to criminal prosecutions.(67) It is thus the Bill of Rights, not its subsequent interpretation by the courts, which places the rights of criminal defendants first and foremost among the imperatives of our fundamental charter.(68)
This calculation does not even account for several rights against arbitrary prosecution which are to be found within the body of the original Constitution, itself. For example, both the federal and state governments are prohibited from passing any ex post facto laws(69)or Bills of Attainder.(70)The federal government's powers to suspend the privilege of the writ of habeas corpus is limited to times of actual rebellion or invasion.(71) The crime of treason against the United States is strictly defined in Article III, Section 3, which also forbids any conviction unless on the sworn testimony of two witnesses to the same overt act, or on confession in open court. Nor does it include implied rights, such as, inter alia, the presumption of innocence,(72) the requirement that guilt be proved beyond a reasonable doubt,(73)the requirement that the prosecution disclose exculpatory evidence to the defense,(74) the right to represent oneself, without a lawyer,(75) or the proscription against rules of procedure which upset "the balance of forces between the accused and his accuser,"(76)which, though not spelled out anywhere in the constitution, have nevertheless been held to be "a basic component of a fair trial under our system of criminal justice."(77)
Because of this constitutional concentration on the criminal process, those who seek to "oblige [the government] to controul itself" in this process, for the most part criminal defense attorneys,(78) do so usually by invoking one or another of the procedural safeguards adopted by the Framers 200 years ago on behalf of individual criminal defendants, many, if not most, of whom are in fact guilty of some crime. It is, in fact, on the battleground of the adversarial process for determining the fate of each such criminal accused that the nature, scope and extent of the fundamental liberties of all Americans are determined. It is through combined action of these many different arguments, on behalf of distinct, and often undesirable individuals, that the Framers understood that the rights of the general, innocent mass of citizens would be safeguarded.
The experience of the colonists taught that the enforcement of criminal laws by troops and police was the way the government established power and controlled its subjects.... The framers meant to limit that power.... The fundamental notion of the citizen's superior rights as against the government, and that the government's powers were limited (two separate and distinct concepts) were the key philosophical bulwarks against potential government tyranny. The rights of the citizenry, constitutionally built into the criminal justice system, limit governmental power from arrest to punishment.(79)
The existence of a written bill of rights, having the force of supreme constitutional law, at the disposal of courts vested with the power to enforce its commands, may occasionally result in an obviously guilty defendant being set free, but this is not "because the constable has blundered." Rather, it is in order "to protect us from unlawful police invasions of our security and to maintain the integrity of our institutions.... The innocent and society are the principal beneficiaries"(80) each time one of our fundamental rights is enforced, even if at the behest, and for the incidental benefit of, a wrongdoer--even a drug dealer.
Surprising as it may be to some, conviction and punishment of the guilty is not the only purpose of our complex system (much, if not most of it prescribed in our constitutions and bills of rights) of procedures and rules governing the prosecution of criminal offenses: Speaking for a majority of the Court just before his retirement, Justice William Brennan recently reminded us that "various constitutional rules limit the means by which the government may conduct [the] search for truth in order to promote other values embraced by the Framers and cherished throughout our Nation's history."(81) The Bill of Rights emanates from "the deep-rooted feeling that the [government] must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves."(82) Just a few months ago, in one of hisfinal opinions, Justice Thurgood Marshall, in dissent, reiterated the same crucial point:
Our Nation, we are told, is engaged in a "war on drugs." No one disputes that it is the job of law-enforcement officials to devise effective weapons for fighting this war. But the effectiveness of a law-enforcement technique is not proof of its constitutionality. The general warrant, for example, was certainly an effective means of law enforcement. Yet it was one of the primary aims of the Fourth Amendment to protect citizens from the tyranny of being singled out for search and seizure without particularized suspicion notwithstanding the effectiveness of this method. See Boyd v United States, 116 US 616, 625-630, 29 L Ed 746, 6 S Ct 524 (1886); see also Harris v United States, 331 US 145, 171, 91 L Ed 1399, 67 S Ct 1098 (1947) (Frankfurter, J., dissenting).(83)
Madison and his contemporaries had a clear and mature understanding that the safeguards which the Bill of Rights guaranteed were not without their costs: that efficiency of governance would sometimes have to be compromised in order to ensure the general citizenry meaningful protection from the excesses of arbitrary government. Former Justice Potter Stewart gave voice to this general truth in the specific context of the most controversial criminal justice issue of all: the Fourth Amendment exclusionary rule: The exclusionary rule places no limitations on the actions of the police. The fourth amendment does. The inevitable result of the Constitution's prohibition against unreasonable searches and seizures . . . is that police officers who obey its strictures will catch fewer criminals.... [T]hat is the price the framers anticipated and were willing to pay to ensure the sanctity of the person, home, and property against unrestrained governmental power.(84)
C. THE INDISPENSABLE PRINCIPLE: JUDICIAL REVIEW.
Nowhere in the Constitution, including the Bill of Rights, is it written that the courts should have authority to declare acts of the legislative and executive branches invalid because contrary to some provision of the Constitution. Yet today, this power "is the sine qua non of an effective constitution or bill of rights."(85) It is hard to imagine any alternative means which could have been nearly as effective in making real the promises contained in our Bill of Rights. During times when we hear repeated complaints that activist judges are creating law, not interpreting it, in applying the Bill of Rights, it is worth noting that this indispensable doctrine, itself without a textual basis in the Constitution, was firmly established, not two decades, but rather more than two centuries, ago.
At the time the Constitution was adopted there was no overall consensus on the principle that courts had the ultimate authority to determine the constitutionality of a legislative or executive act. But the advent of written constitutions with specific declarations of rights expressing the "supreme law of the land" during the Revolutionary period, and the move toward judicial independence from the executive branch, ineluctably led toward the emergence of that doctrine as we know it today. "Inevitably when Americans believed that a legislature had exceeded its authority they argued that it had acted unconstitutionally, and they turned to courts to enforce the supreme law as law."(86)
In a series of cases arising in the courts of the states during the 1780s, the notion that courts were empowered to declare a statute unconstitutional gained sway. In 1780, a New Jersey court apparently struck down as "contrary to the constitution of New Jersey," a statute authorizing trial by a jury of six in forfeiture actions brought against those trafficking with the enemy.(87) Two years later, in Commonwealth v. Caton, 4 Call. 5 (Va. 1782), the Virginia Court of Appeals held "that the court had power to declare any resolution or act of the legislature, or of either branch of it to be unconstitutional and void...."(88) In Rutgers v. Waddington (N.Y. 1784), Alexander Hamilton argued with great force that a state enactment in derogation of the terms of a treaty should be held void as unconstitutional. His contentions, though inadequate to convince the judges in the case at hand, were nevertheless highly successful in the more important court of public opinion, and were quickly adopted and used by lawyers throughout the nation.(89) In 1786, in the unreported case of Trevett v. Weeden, a Rhode Island court, citing the statute's repugnancy to the constitution, refused to take cognizance of a criminal information against a butcher charged with refusing to accept paper money of the state in payment for his merchandise. Newspaper accounts of the day, and a pamphlet published regarding the decision, gave the decision of the court wide dissemination.(90) A group of New Hampshire cases, The Ten Pound Act Cases (1786), is credited by Professor Levy as "the first in which an American court held a state enactment void."(91) In the 1787 decision in Bayard v. Singleton,(92) North Carolina judges held that a statute inconsistent with the jury trial guarantee of the state's Declaration of Rights "must of course . . . stand as abrogated and without any effect."(93) Finally, in the 1788 Cases of the Judges of the Court of Appeals, Virginia's judges refused to give effect to a statute imposing new tasks upon them, without additional compensation, declaring "that the constitution and the act are in opposition and cannot exist together; and that the former must control the operation of the latter."(94) Citing this line of cases, Leonard Levy has written, "The principle of Marbury v. Madison (1803) thus originated at a state level before the framing of the federal Constitution."(95)
At the Constitutional Convention, which created the separate judicial branch comprised of judges with lifetime tenure in Article III of the 1787 Constitution, itself a remarkable innovation, several of the delegates suggested that the Supreme Court would have a "negative" on the legislature, but still, no such power was alluded to in the Constitution itself. In The Federalist No. 78, however, Hamilton posited unequivocally the power of the courts to declare acts contrary to the proposed Constitution void and unenforceable:
There is no position which depends on a clearer principle than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised is void.... No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principle; that the servant is above his master; that the representatives of the people are superior to the people themselves.... [It will be the special duty of the courts to keep the legislators] "within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts.
In any event, by 1803, Chief Justice John Marshall was able to declare for a unanimous Supreme Court in Marbury v. Madison(96)that this proposition was "too plain to be contested...." The question whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest.... The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers, is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed, are of equal obligation.... Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the legislature, repugnant to the constitution, is void.... It is emphatically the province and the duty of the judicial department to say what the law is.
Judicial review may or may not have been a necessarily implied judicial power under the Constitution as written and ratified; it makes little difference. At least since Marshall's opinion inMarbury,(97) though, it has been as much a part of the framework of our constitutional system as if set out in the Preamble itself, and it is the essential source, without which the Bill of Rights might be no more than a "parchment barrier" subject to "repeated violations . . . by overbearing majorities in every State,"(98) of the authority residing in the courts to enforce the protections of the Bill of Rights.
D. THE INHERENT FRAGILITY OF OUR FUNDAMENTAL RIGHTS
Because they necessarily circumscribe the powers of the prosecution in the enforcement of the criminal laws, i.e., in government's critical role in protecting us from the predatory practices of those we fear and loathe, our fundamental rights are extremely fragile. It is no surprise that these rights may come to be viewed with little understanding or sympathy, or even with outright hostility, by the media and the general public; it is a shock, however, when prosecutors and judges (who, after all, live in the same culture too) betray the same prejudices.(99) When these protections are occasionally honored by the courts, as, for example by the application of an exclusionary rule denying to the government the fruits of a violation of one of our "great rights of mankind," resulting in the reversal of a conviction, or in a disposition of serious criminal charges, such as drug offenses, favorable to a criminal defendant, the message that the accused "got off on a technicality" is the one most frequently heard.(100) The popular perception is that it is the courts' "coddling of criminals" which interferes with effective law enforcement and hampers the prosecution of the war against drugs. Adherence to the guarantees afforded under the Bill of Rights is widely decried as a triumph, not for our basic freedoms, but rather of legalistic gamesmanship, of which cynical lawyers take unfair advantage on behalf of smirking, contemptuous gangsters. Surely it is not a healthy sign for the continued vigor of our fundamental rights that those who shoulder their intended constitutional responsibility of policing the governments' adherence to the specific rules set out in our Bill of Rights are perceived, to an ever-increasing extent, by the drug warriors and by the general public as well, not as participants in the on-going process of self-government in the sense of Madison's "great difficulty," but rather, simply as enemies, standing in the way of the popular war effort.
Speaking specifically about the Fourth Amendment exclusionary rule, but in words which apply with no less force to any of the rules limiting the state's arbitrary powers of punishment, former Federal Prosecutor and Maryland Attorney General Steven Sachs has explained: The rule is also very fragile, especially in today's atmosphere of understandable public outrage at crime and at our perceived inability to do much about it. It is vulnerable to attack because its values are abstract while its price is tangible. It frequently excludes hard evidence, the truth, from trial. It appears to reward the undeserving criminal, whom it sometimes frees because "the constable blundered." It seems to give aid and comfort only to the enemy in the war on crime. It makes almost no sense to citizens fed up with crime and impatient with legal "technicalities" who want to believe that crime would disappear if only courts would stop coddling criminals. That is why the rule, although it has plenty of responsible critics, has become a favorite whipping boy of anti-crime rhetoricians.(101)
E. THE DANGERS OF TUNNEL VISION IN THE WAR ON DRUGS
Today our nation is engaged in a deadly serious, and much heralded, "war on drugs," which, in recent years, has taken on many of the emotional and ideological trappings of a crusade. At the federal, state, and local levels, elected and appointed representatives of the popular branches of government--police, politicians and prosecutors--have single-mindedly, and often impetuously, thrown themselves into the struggle to find simple, quick, popular solutions to eradicate the deadly traffic in drugs which continues to blight our nation.(102)Given the horrors of drug abuse and drug-related criminal activity, the democratic imperatives which make this response politicallyde rigueur are hardly surprising; there is not much of a constituency out there for being kind to criminals, especially drug dealers. The very idea that such criminals have rights (lip service to the general notion of the presumption of innocence notwithstanding) is understandably hard to swallow, particularly in the sensational cases which most often reach the consciousness of the general public. Under these circumstances, it would be naive--or insincere--at least in the real world, to expect the political branches of government (either those responsible for adopting the criminal laws and procedures, or those empowered to use them to fight the war against drugs) to stay within the limits of constitutional constraints, on their own--i.e., to police themselves. When, as in the natural course of most human endeavors, the war-like fervor of the crusade is frustrated by the practical difficulties of combating all of the various and interwoven evils of our culture's drug menace, the tendencies toward excesses, abuses, and oppression become almost unbearable. The atmosphere is rife with the danger that all caution, all restraint, all limits, will be "swept away by society's obsession with stopping the scourge of illegal drugs."(103) In his very first dissenting opinion, Justice Oliver Wendell Holmes warned against surrendering hard-won constitutional protections to these tides of public fervor: Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.(104)
Drug war proponents have often refused to acknowledge that those who see the Bill of Rights as placing limits on the lengths to which government may go in fighting this war are a legitimate part of the adversarial process for determining the meaning and scope of the individual liberties protected by our Constitution. Former President Ronald Reagan, himself, was a prominent and enthusiastic spokesman for the view that the criminal justice process in general, and the lawyers who represent criminal defendants in particular, had meretriciously impeded the cause and joined ranks with the enemy. According to the President, "a bizarre twisting of values had crept into our criminal law. That was the confusion of criminals and victims into an attitude that the law was not a vehicle for uncovering truth and administering justice, but a game in which clever lawyers tried to trip up the police on the rules."(105) A former Reagan Administration Justice Department official has even gone so far as to place the primary blame for the current drug problem on the activities of the American Civil Liberties Union.(106) Thus, we see that the drug war, inspired by the best of intentions, carries an awful potential to transform itself into a direct and potent attack on the constitution itself.
F. THE CRIMINAL JUSTICE PROCESS: MYTH AND REALITY
Because of concern "that a large segment of the public believed the criminal justice system did not work well because of the individual rights secured by the Fourth, Fifth, and Sixth Amendments to the United States Constitution," the Section of Criminal Justice of the American Bar Association recently commissioned a study, by a task force consisting of prosecutors, judges, academics, police officials, and defense lawyers "to study the impact of constitutional rights on crime and crime control in the United States."(107)
According to the task force's report, "Popular notions of the role of the defense lawyer often lead the public to believe that a good defense lawyer will routinely be able to 'beat the system' and thereby, frustrate justice."(108)
The Committee undertook an exhaustive review of available statistics from most of the major criminal justice studies and commissioned a scientific national telephone survey of over 800 defense lawyers, judges, prosecutors and high ranking police administrators designed to identify what the actual participants in the criminal justice system believed to be the problems hampering effective law enforcement.(109)
Its findings debunk the popular complaints blaming the persistence of our crime and drug problems on an extravagant deference to the rights of criminals.
Among the most startling and thought-provoking findings of the Committee is the fact that most crimes simply never enter the criminal justice system at all; more than 90 percent of serious crimes remain unreported or are unsolved by the police. In fact, of some 34 million serious crimes committed against persons or property in the United States during 1986, approximately 31 million remained entirely outside the criminal justice system(110)for reasons having nothing whatsoever to do with the exercise of constitutional rights. "The overwhelming majority of these crimes, which keep Americans in fear, are untouched by the work of the police, prosecutors, judges, and prison officials."(111) Notwithstanding the fact that only a tiny fraction (around 2 percent) of these crimes result in prison sentences,(112) America's prisons are already overcrowded, operating at between 6% and 21% above capacity.(113) The nation's prison population, which stood at 819,395 by the end of 1986, has been rising at an annual rate of approximately ten percent, or about 1,000 new beds each week, ever since.(114) The number of prisoners has doubled since the late 1970s, tripled since the end of the 1960s.(115)
Based on empirical studies and the results of its own scientific survey of criminal justice participants, the Committee concluded, "Constitutional restrictions, such as the exclusionary rule and Miranda, do not significantly handicap police and prosecutors in their efforts to arrest, prosecute, and obtain convictions of criminal defendants for most serious crimes."(116) The Special Committee's report also indicates that the exclusionary rule achieves a significant measure of police compliance with Fourth Amendment search and seizure restrictions. Moreover, [the evidence] shows that the exclusionary rule has relatively little adverse impact on the criminal justice system and no discernible effect on the crime rate or law enforcement's ability to control crime.(117)
In fact, the Committee found that the cumulative loss, adding together data on each stage of the felony process (decisions to terminate prosecutions made by police, prosecutors, and judges), because of the exclusionary rule ranged between only 0.6% and 2.35% of all adult felony arrests.(118) The analogous results for attrition based on search and seizure violations from drug cases alone, taken as a separate category, though markedly higher, were still relatively insignificant, between 2.8% and 7.1% of all arrests.(119) According to the Committee Report, "The most striking feature of the data is the concentration of illegal searches in drug arrests (and possibly weapons possession arrests) and the extremely small effect on the arrests for other offenses, including violent crimes."(120) These findings are consistent with those reported in several empirical studies showing only marginal effects of the exclusionary rule on federal and state prosecutions.(121)
On the whole, the Committee discovered that prosecutors and police . . . do not believe that Fourth Amendment rights are a significant impediment to crime control. A number of observers, including police officials, also report that the demands of the exclusionary rule, and the resulting police training on Fourth Amendment requirements, have promoted professionalism in police departments across this country.(122)
On the contrary, "the major problem for the criminal justice system," the study found, identified by all criminal justice respondents to the Committee, is lack of sufficient resources. The entire system is starved: police, prosecution, criminal defense, courts, and corrections. As currently funded, the criminal justice system cannot provide the quality of justice the public legitimately expects and the people working within the system wish to deliver.(123)
"The entire criminal justice system is starved for resources," receiving (with the civil justice system, combined) less than 3% of all government spending.(124) It is this factor, not the imagined effects of judges routinely turning criminals loose "because the constable has blundered," which has the greatest impact on the effectiveness of our criminal justice system.
Yet, the media and public opinion leaders continue to give the impression that it is judicial tampering in law enforcement activities (or unreasonable bail decisions) that "shackles" the police and prosecution, and which results in dangerous criminals remaining at large. Moreover, police, prosecutors, judges, and lawmakers "consistently told the Committee that they are regularly frustrated in their work because of the public's perception that if they did their jobs competently, they should be able to protect the public from crime completely."(125) These law enforcement officials, however, know the hard truth: "They reported that even if they were given sufficient resources, they could only effectively prosecute and punish a small percentage of the crime against which the public demands protection."(126)
One of the Committee's special areas of inquiry was the capacity of the criminal justice system to "win the war" against drugs. Its findings are sobering, and provide still another answer to those who would turn the drug war into an assault on our constitutional rights. Here is what the Committee found: An equally major problem reported by all criminal justice participants is the inability of the criminal justice system to control the drug problem in the Nation through the enforcement of the criminal law. Police, prosecutors, and judges told the Committee that they have been unsuccessful in making a significant impact on the importation, sale, and use of illegal drugs, despite devoting much of their resources to the arrest, prosecution, and trial of drug offenders.(127)
Indeed, in the nine years from 1980 to 1989, the number of drug cases filed in the federal courts rose by 270 percent. Drug cases now make up 55 percent of all federal appeals.(128) The task force attempted to analyze reports of substantially greater numbers of illegal searches and seizures in connection with drug prosecutions. It concluded that this phenomenon was best explained not as a problem created by the exclusionary rule, but as a symptom of police frustration over their inability, unrelated to constitutional restrictions, to combat the drug problem effectively in the face of public demand for conclusive action. In this atmosphere, some police departments have resorted to demonstrations of visible efforts to clean the streets of drugs, even though this has, in some instances, required them to ignore constitutional restrictions and forego prosecutions.(129)
Ultimately, the Committee had this to say about the role of the criminal justice system in the war on drugs: Despite ever-increasing numbers of arrests, ever-harsher sentences, and ever-more crowded prisons, "The criminal justice system is not controlling the drug problem that plagues this country. There is an immediate need to rethink our strategies for dealing with drugs, and the answers will not be so simple as merely making more arrests and imposing longer prison sentences."(130)
THE BILL OF RIGHTS TODAY: IS THERE A "DRUG EXCEPTION" TO THE BILL OF RIGHTS?
Dissenting from the decision in Skinner v. Railway Labor Executives' Association, 109 S.Ct. 1402 (1989), which upheld suspicionless drug testing of railway employees under a novel Fourth Amendment standard, which he characterized as "a formless and unguided 'reasonableness' balancing inquiry,"(131) now-retired Justice Thurgood Marshall, joined by former Justice William Brennan, was moved to protest, "There is no drug exception to the Constitution."(132)Unfortunately, there is growing evidence that such an exception not only is creeping into the Supreme Court's search and seizure jurisprudence,(133) but that it may have much, much broader application: to the Bill of Rights as a whole.(134) While it is not within the ambit of this article to analyze the merits(135) of each of the many recent Supreme Court decisions cutting back on criminal law protections which had, until lately, been considered firmly established under the first ten Amendments, a brief look at several audacious rulings by the newly-emboldened Rehnquist Court majority may be adequate to enliven the reader's sense of constitutional foreboding.
A. THE VANISHING FOURTH AMENDMENT
The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.(136)
Nowhere has the drug war taken a greater toll than it has on this Amendment,(137) with its ever-controversial exclusionary rule. As Professor Wayne LaFave has noted, "The nature of the exclusionary rule is such that it makes the cost of honoring the Fourth Amendment apparent. As Professor Kaplan has observed, 'by definition, it operates only after incriminating evidence has already been obtained' and thus 'flaunts before us the costs which we must pay for fourth Amendment guarantees.'"(138) Although it has not yet suggested a willingness to jettison the holding of Mapp v. Ohio,(139) the Supreme Court has not only sharply circumscribed the application of the exclusionary rule itself,(140)but has also repeatedly weakened the scope and limited the sweep of the Amendment's proscriptions themselves, as for example in United States v. Leon,(141) in which it held that when police act in good faith reliance on a warrant, even one issued on less than the probable cause prescribed by the express terms of the Fourth Amendment, no constitutional violation will be recognized.(142) By emphasizing the personal nature of the right for purposes of limiting standing to object to an unreasonable search,(143) but treating it as less than a personal right for purposes of waiver analysis,(144) the Court has further narrowed the circumstances under which the rule can be invoked.
In 1984, Professor Silas Wasserstrom was moved to write, in an article entitled The Incredible Shrinking Fourth Amendment,(145)about the Burger Court's various efforts to cut back on the Fourth Amendment constraints which the Warren Court had imposed on law enforcement officials.(146) In 1986, another noted Fourth Amendment scholar warned that the courts were "turning their backs" on the Fourth Amendment "in order to aid the war against illicit drugs."(147)In 1989, Professor Wasserstrom observed the extension of this trend by virtue of the Rehnquist Court's movement toward an "ad hoc balancing approach for all fourth amendment intrusions:" During the past five years the Court's fourth amendment decisions have, for the most part, continued trends set in motion over the previous ten or fifteen years. The Rehnquist Court, like the Burger Court before it, has generally been inhospitable toward both substantive fourth amendment claims and toward the exclusionary rule as a way to enforce those claims.(148)
In 1985, the Court started down the road to this "ad hoc balancing approach" when it held that the "special needs" of public school discipline made the ordinary warrant and probable cause requirements inapplicable to a school principal's search of a student's belongings.(149) Two years later, in O'Connor v. Ortega,(150) a majority similarly found the needs of public employers urgent enough to override the traditional warrant and probable cause requirements in that setting. The same reasoning was the basis for excepting probation officers' searches of probationers' homes from those standards in Griffin v. Wisconsin.(151) Colorado v. Bertine,(152) expanded the pre-existing inventory search exception to the Fourth Amendment's textual requirements based on the special administrative needs of the police with respect to impounded property.
Over the last dozen years, the Court has also embraced a host of intrusive weapons which have permitted police to explore at will, with no Fourth Amendment constraints whatsoever, areas which many, if not most, Americans would consider none of their business. Because it considered it "too much to believe that telephone subscribers . . . harbor any general expectation that the numbers they dial will remain secret," the Court held in 1979 that the Fourth Amendment placed no limitations on the government's power to record those numbers through the use of a "pen register" device.(153) In United States v. Place,(154) the Court held that the use of trained police dogs to detect the odor of illegal drugs inside a suitcase or other luggage was not a search, and therefore did not implicate any Fourth Amendment protections. California v. Greenwood(155)announced the rule that, irrespective of the care with which one may wrap his garbage, no expectation of privacy in the contents of one's trash can is legitimate. Likewise, inUnited States v. Dunn,(156) the Court held, under the "open fields" doctrine,(157) that no search had occurred when officers crossed over half a mile of property, climbed over several barbed wire fences, and shined a flashlight into the owner's barn. The decision in California v. Ciraolo,(158)similarly placed police surveillance of whatever can be seen from the skies--even within the curtilage of the home--beyond any limitations contained in the guarantee against unreasonable searches and seizures.(159) One cannot help but harbor serious doubts that the American people would agree with these sweeping generalizations about the narrow limits of their own (though perhaps not those of "criminals") "legitimate expectations of privacy."
If use of an "aid to the senses" of the police, as by either a trained animal or an advanced technological device, permitted the authorities to detect drugs (or anything else the police might seek) inside a house from the curbside (or anywhere "outside the curtilage" for that matter), do these cases suggest that routine house to house sweeps for contraband are in store for our neighborhoods? Under the logic of the cases cited in the text, the advent of such incredibly intrusive (and effective) means for police to detect drugs within the home of anyone they choose to target would not even implicate Fourth Amendment concerns. Whether or not one would want to live in a society characterized by such ruthlessly efficient drug (or other crime) detection practices, does it make any sense to consider the issue without any reference to the constitutional provision which is expressly devoted to the task of placing reasonable limitations on the intrusive powers of the police?(160)
In a 1989 article on the Fourth Amendment,(161) Andrew Gildea and David Weiler attempted to delineate the departures over the last twenty years from what they considered the highwater mark of Fourth Amendment jurisprudence: the decision in Katz v. United States(162) which adopted the general rule that, but for "a few specifically established and well-delineated exceptions," evidence gathered in the absence of a warrant issued by a neutral and detached magistrate is per seunreasonable.(163) Whether or not one agrees with their normative evaluation of this process, the trend of inroads is nevertheless sobering for those who take seriously the underlying purposes of the Fourth Amendment: In an era when "strict construction" and "judicial restraint" have been conservative touchstones, the Court's ever-narrowing definition of "unreasonable" searches and seizures has become an exercise in reductio ad absurdum. "The right of the people to be secure in their persons, houses, papers, and effects, from unreasonable searches and seizures, shall not be violated" has become a nullity because the Supreme Court has implied a codicil: the fourth amendment provides protections unless the unreasonable and warrantless search involves a border area, "inevitable" discovery, "good faith," a brief pat-down of a person's body without probable cause, a search based on anonymous hearsay and subsequent corroboration, organized road blocks or stops, intimate administrative searches of employees' bodily parts and functions, inventory searches, searches of regulated industries, searches incident to a valid arrest, "plain view" seizures, the search of a vehicle or mobile home, searches involving unintelligent consent by third parties, "exigent" circumstances, or a lack of an expectation of privacy. Somehow, the Burger and Rehnquist version of the fourth amendment lacks the clarity of the Katz decision's bright line rule.(164)
In National Treasury Employees' Union v. Von Raab,(165) decided along with Skinner v. Railway Labor Executives' Association,(166)the Supreme Court upheld a program of mandatory, suspicionless drug testing, including the monitored collection of urine samples, of agents of the Customs Service applying for certain positions or promotions.(167) Justice Antonin Scalia, rarely accused of harboring liberal beliefs, registered his dissent in Von Raab(168) in these scathing words: What better way to show that the Government is serious about its "war on drugs" than to subject its employees on the front line of that war to this invasion of their privacy and affront to their dignity? To be sure, there is only a slight chance that it will prevent some serious public harm resulting from Service employee drug use, but it will show to the world that the Service is "clean," and--most important of all--will demonstrate the determination of the Government to eliminate this scourge of our society! I think it obvious that this justification is unacceptable; that the impairment of individual liberties cannot be the means of making a point; that symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search.(169)
Justice Marshall's dissent in Skinner excoriated the majority, which, he complained today takes its longest step yet toward reading the probable-cause requirement out of the Fourth Amendment. For the fourth time in as many years, a majority holds that a "special nee[d], beyond the normal need for law enforcement," makes the "requirement" of probable cause "impracticable." . . . [T]he Court has now permitted "special needs" to displace constitutional text in each of the four categories of searches enumerated in the Fourth Amendment: searches of "persons," ante, at ____; "houses," Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987); "papers," O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987); and "effects," New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985). The process by which a constitutional "requirement" can be dispensed with as "impracticable" is an elusive one to me.
In the past two years, the Court has endorsed ever more numerous exceptions to the literal requirements of the Fourth Amendment. In Michigan Department of State Police v. Sitz,(170)citing the special needs of the war against drunk driving, a majority approved the practice of mass sobriety checkpoints on the highways, in which all vehicles are stopped, without any individualized suspicion or justification, in an effort to catch those driving while intoxicated. InMaryland v. Buie,(171) the Court recognized an exception to both the probable cause and warrant requirements for a "protective sweep" of the premises where a lawful arrest is made for other suspects reasonably suspected of being on the scene. The Court stretched the boundaries of the consent exception to the Fourth Amendment in Illinois v. Rodriguez,(172) holding that consent given by a third party with "apparent authority" to enter the premises was sufficient to justify a police search in reliance thereon, even when it turned out that she in fact lacked any right to enter the premises.(173) In Horton v. California,(174) the Court did away with the "inadvertency" requirement for the seizure of evidence "in plain view."
Just a few months ago, in California v. Acevedo,(175) a majority of the Supreme Court overturned the rule of Arkansas v. Sanders,(176)and held that, pursuant to the "automobile exception" to the Fourth Amendment's warrant requirement, police may search without a warrant the contents of a closed container located within the trunk of an automobile, provided they have probable cause to believe that the package contains contraband. Justice Stevens protested: "No impartial observer could criticize this Court for hindering the process of the war on drugs. On the contrary, decisions like the one the Court makes today will support the conclusion that this Court has become a loyal foot soldier in the Executive's fight against crime."(177) A month later, the Court (this time with Justice Blackmun, who authored the majority opinion in Acevedo, in dissent) upheld the practice of suspicionless drug sweeps on buses, ruling that such practices do not implicate the Fourth Amendment so long as no actual coercion is involved.(178) Justice Marshall, in a ringing dissent, quoted the following passage from the opinion of Judge Sporkin of the District Court for the District of Columbia in a similar case: It seems rather incongruous at this point in the world's history that we find totalitarian states becoming more like our free society while we in this nation are taking on their former trappings of suppressed liberties and freedoms. * * * The random indiscriminate stopping and questioning of individuals on interstate busses seems to have gone too far.... If passengers on a bus passing through the Capital of this great nation cannot be free from police interference where there is absolutely no basis for the police officers to stop and questionthem, then the police will be free to accost people on our streets without any reason or cause. In this "anything goes" war on drugs, random knocks on the doors of our citizens' homes seeking "consent" to search for drugs cannot be far away. This is not America.(179)
The Supreme Court's open hostility to the anti-government bias of the Fourth Amendment continues to grow. Professor Yale Kamisar has recently added his voice to the chorus of concern over the "plausible-sounding government claims" which "are putting enormous pressure" on the Fourth Amendment's limitations on the government's power to invade personal liberty and security.(180) The danger today is that judges will be unduly influenced by contemporary tides and currents--so much so that these forces may engulf the Fourth Amendment itself. We should greet claims of "crisis" or "emergency" or "necessity" with considerable skepticism. For such slogans can be--and have been--a free people's most effective tranquilizers.(181)
To those who would argue that the Court has nothing against the Fourth Amendment, but is merely restricting the reach of the "judge-made" exclusionary rule, which allows the guilty to go free "because the constable has blundered," it would be well to consider the point, frequently made by the 77-year-old rule's proponents, that it is the Fourth Amendment itself, not the exclusionary rule, which "handcuffs" the police. In Professor Kamisar's words: [D]oesn't the Fourth Amendment itself impede the search for truth? I realize that the Amendment has "both the virtue of brevity and the vice of ambiguity." But doesn't it mean something? Is not its very purpose--and that of the Bill of Rights generally--"to identify values that may not be sacrificed to expediency"? And to stand in the way when "the task of combatting crime and convicting the guilty . . . seem of such critical and pressing concern," as it will in every era, "that we may be lured by the temptation of expediency into forsaking our commitment to protecting individual liberty and privacy"?(182)