270
Kennedy, J., dissenting
dissenters there (like the Court today) misunderstood the import of this discussion, but they were correct in their observation that "[i]t is impossible to understand how McMillan could mean one thing in a later case where recidivism is at issue, and something else in a later case where some other sentencing factor is at issue." Id., at 258 (opinion of Scalia, J.).
The constitutional portion of Almendarez-Torres also rejected the argument that constitutional concerns were raised by a "different 'tradition'—that of courts having treated recidivism as an element of the related crime." Id., at 246. We found this argument unconvincing because "any such tradition is not uniform." Ibid. Of course, the same is true with respect to the sentencing factors at issue here. See supra, at 257-258. In sum, "there is no rational basis for making recidivism an exception." 523 U. S., at 258 (Scalia, J., dissenting) (emphasis deleted).
If the Court deems its new direction to be a justified departure from stare decisis, it does not make the case. There is no support for the view that Almendarez-Torres was based on a historical misunderstanding or misinterpretation. By the Court's own submission, its historical discussion demonstrates no more than that "the tension between jury powers and powers exclusively judicial" would probably and generally have informed the Framers' conception of the jury right. Ante, at 244. That must be correct, but it does not call into question the principle that " '[t]he definition of the elements of a criminal offense is entrusted to the legislature.' " Staples v. United States, 511 U. S. 600, 604 (1994) (quoting Liparota v. United States, 471 U. S. 419, 424 (1985)).
The Court's historical analysis might have some bearing on the instant case if § 2119 disclosed the intent to serve the real objective of punishing (without constitutional safeguards) those who caused serious bodily harm, rather than to prevent the underlying conduct of carjacking. See Almendarez-Torres v. United States, supra, at 243, 246. No
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