Cite as: 527 U. S. 1 (1999)
Opinion of Stevens, J.
a proper instruction the jury would have acquitted if they thought a more discerning minority would have found true artistic value in the publications. Indeed, under the instruction given to the jury in that case, James Joyce would surely have been convicted for selling copies of the first edition of Ulysses in Rockford, Illinois, even though there were a few readers in Paris who immediately recognized the value of his work. The Pope Court's conclusion that the unconstitutional instruction might have been harmless entirely ignored the danger that individual distaste for sexually explicit materials may subconsciously influence a judge's evaluation of how a jury would decide a question that it did not actually resolve. It is, in fact, particularly distressing that all of my colleagues appear today to endorse Pope's harmless-error analysis.
Admittedly, that endorsement is consistent with the holding in Part II of the Court's opinion in Walton v. Arizona, 497 U. S. 639, 647-649 (1990), that a judge may make the factual findings that render a defendant eligible for the death penalty. As I have previously argued, however, that holding was not faithful to the history that was reviewed by "the wise and inspiring voice that spoke for the Court in Duncan v. Louisiana, [391 U. S. 145 (1968)]." Id., at 709-714 (Stevens, J., dissenting). Nor was it faithful to the history that Justice Scalia recounts today. Of course, Blackstone was concerned about judges exposed to the voice of the higher authority personified by the Crown, whereas today the concern is with the impact of popular opinion. It remains clear, however, that the constitutional right to be tried by a jury of one's peers provides "an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." Duncan v. Louisiana, 391 U. S. 145, 156 (1968).
III
The Court's conclusion that materiality is an element of the offenses defined in 18 U. S. C. §§ 1341, 1343, and 1344 is
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