836
Kennedy, J., dissenting
The Court cites Garrett for the proposition that the CCE statute originated in a " 'recidivist provision . . . that provided for enhanced sentences.' " Ante, at 822. In fact, the point the Court was making in Garrett was that Congress rejected the simple recidivist provision in favor of the current definition of a CCE, which, as the Court in Garrett took pains to point out, "is not drafted in the way that a recidivist provision would be drafted" but instead uses "starkly contrasting language." 471 U. S., at 781-782 (comparing the CCE definition of § 848 with the recidivist provision incorporated into § 849).
One could concede, arguendo, that if Congress were to pass a habitual-offender statute the sole element of which was the existence of a series of crimes without a requirement of jury unanimity on any underlying offense, then the statute would raise serious questions as to fairness and rationality because the jury's discretion would be so unconstrained. The statute before us is not of that type, for the various elements work together to channel the jury's attention toward a certain kind of ongoing enterprise. We should not strike down this reasonable law out of fear that we will not be able to deal in an appropriate manner with an unreasonable law if one should confront us. The CCE statute does not represent an end run around the Constitution's jury unanimity requirement, for Congress had a sound basis for defining the elements as it did: to punish those who act as drug kingpins. There are many ways to be a drug kingpin, just as there are many ways to commit murder or kidnaping.
With regard to the fundamental fairness of the alternative means of satisfying the continuing series element, the plurality opinion in Schad indicated that the Court should look to see whether the alleged predicate offenses making up the series in each particular case are morally equivalent. The alternative means of fulfilling an element "must reasonably reflect notions of equivalent blameworthiness or culpabil-
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