Cite as: 523 U. S. 224 (1998)
Scalia, J., dissenting
the 1988 amendment kept the original title of § 1326 ("Re-entry of Deported Alien") intact, leaving it to apply to both subsection (a) and subsection (b). See § 7345, supra; § 276, 66 Stat. 229.
The Court's fourth factor leading it to conclude that this statute cannot reasonably be construed as establishing substantive offenses is legislative history. See ante, at 234. It is, again, the legislative history of the provision as it existed in 1988, before subsection (a) was stripped of the language "shall be guilty of a felony," thereby making subsections (a) and (b) parallel. Even so, it is of no help to the Court's case. The stray statements that the Court culls from the Congressional Record prove only that the new subsection (b) was thought to increase penalties for unlawful reentry. But there is no dispute that it does that! The critical question is whether it does it by adding penalties to the subsection (a) offense, or by creating additional, more severely punished, offenses. That technical point is not alluded to in any of the remarks the Court recites.
The Court's fifth and last argument in support of its interpretation of the statute is the contention that "the contrary interpretation . . . risks unfairness," ibid., because it would require bringing the existence of the prior felony conviction to the attention of the jury. But it is also "unfair," of course, to deprive the defendant of a jury determination (and a beyond-a-reasonable-doubt burden of proof) on the critical question of the prior conviction. This Court's own assessment of which of those disadvantages is the greater can be of relevance here only insofar as we can presume that that perception would have been shared by the enacting Congress. We usually presume, however, not that an earlier Congress agreed with our current policy judgments, but rather that it agreed with the disposition provided by traditional practice or the common law. See United States v. Texas, 507 U. S. 529, 534 (1993); Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 108 (1991); Norfolk Redevel-
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