244
Opinion of the Court
from the significance usually carried by determinations of guilt to the relative importance of low-level gatekeeping: in some cases, a jury finding of fact necessary for a maximum 15-year sentence would merely open the door to a judicial finding sufficient for life imprisonment. It is therefore no trivial question to ask whether recognizing an unlimited legislative power to authorize determinations setting ultimate sentencing limits without a jury would invite erosion of the jury's function to a point against which a line must necessarily be drawn.
The question might well be less serious than the constitutional doubt rule requires if the history bearing on the Framers' understanding of the Sixth Amendment principle demonstrated an accepted tolerance for exclusively judicial factfinding to peg penalty limits. But such is not the history. To be sure, the scholarship of which we are aware does not show that a question exactly like this one was ever raised and resolved in the period before the framing. On the other hand, several studies demonstrate that on a general level the tension between jury powers and powers exclusively judicial would likely have been very much to the fore in the Framers' conception of the jury right.
The fact that we point to no statutes of the earlier time exemplifying the distinction between elements and facts that elevate sentencing ranges is unsurprising, given the breadth of judicial discretion over fines and corporal punishment in less important, misdemeanor cases, see, e. g., J. Baker, Introduction to English Legal History 584 (3d ed. 1990); 4 W. Blackstone, Commentaries on the Laws of England 372 (1769) (hereinafter Blackstone); Preyer, Penal Measures in the American Colonies: An Overview, 26 Am. J. Legal Hist. 326, 350 (1982), and the norm of fixed sentences in cases of felony, see Langbein, The English Criminal Trial Jury on the Eve of the French Revolution, in The Trial Jury in England, France, Germany 1700-1900, pp. 36-37 (A. Schioppa ed.
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