It is fundamental, even in a federal system, that a state be free to regulate the procedure of its courts in accordance with its own conceptions of proper policy, subject only to constitutional limitations safeguarding individuals from arbitrary action by the state. In the United States this constitutional protection is two-fold-both state and federal constitutions acting as limitations on state action. As a result, a problem arises as to what extent the federal courts can, in the enforcement of federal constitutional limitations, override state criminal procedures and the policies underlying them. It is clear that the states have, by virtue of the due process clause of "the Fourteenth Amendment, subjected their administration of justice to federal scrutiny; but the question remains whether this scrutiny is limited to a superficial inquiry as to the existence and observance of adequate minimum procedural safeguards (as established by prevailing Anglo-American mores), or whether it involves a deeper and more philosophical inquiry into the underlying moral conduct and juridical policies of the state; or translated into more rudimentary terms, whether the state's conduct is to be judged in terms of deviation from established standards of society or in terms of deviation from standards deemed to be ultimately desirable. The choice is essentially one as to the proper judicial role: policeman or philosopher?
Allan Neef S.Ed.,
CONSTITUTIONAL LAW-EVIDENCE-USE OF ILLEGALLY OBTAINED EVIDENCE AND DUE PROCESS OF LAW,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol50/iss8/9