260
Scalia, J., dissenting
625-626, 631; McDonald, supra, at 312-313. It has not allowed recidivism to be determined by a judge as more likely than not.
While I have given many arguments supporting the position that the Constitution requires the recidivism finding in this case to be made by a jury beyond a reasonable doubt, I do not endorse that position as necessarily correct. Indeed, that would defeat my whole purpose, which is to honor the practice of not deciding doubtful constitutional questions unnecessarily. What I have tried to establish—and all that I need to establish—is that on the basis of our jurisprudence to date, the answer to the constitutional question is not clear. It is the Court's burden, on the other hand, to establish that its constitutional answer shines forth clearly from our cases. That burden simply cannot be sustained. I think it beyond question that there was, until today's unnecessary resolution of the point, "serious doubt" whether the Constitution permits a defendant's sentencing exposure to be increased tenfold on the basis of a fact that is not charged, tried to a jury, and found beyond a reasonable doubt. If the Court wishes to abandon the doctrine of constitutional doubt, it should do so forthrightly, rather than by declaring certainty on a point that is clouded in doubt.
II
The Court contends that the doctrine of constitutional doubt is also inapplicable because § 1326 is not fairly susceptible of the construction which avoids the constitutional problem—i. e., the construction whereby subsection (b)(2) sets forth a separate criminal offense. Ante, at 238. The Court begins its statutory analysis not by examining the text of § 1326, but by demonstrating that the "subject matter [of the statute]—prior commission of a serious crime—is as typical a sentencing factor as one might imagine." Ante, at 230. That is eminently demonstrable, sounds powerfully good, but in fact proves nothing at all. It is certainly true that a
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