Cite as: 530 U. S. 466 (2000)
Thomas, J., concurring
senters is that they are unable to say what the right to trial by jury does guarantee if, as they assert, it does not guarantee—what it has been assumed to guarantee throughout our history—the right to have a jury determine those facts that determine the maximum sentence the law allows. They provide no coherent alternative.
Justice Breyer proceeds on the erroneous and all-too-common assumption that the Constitution means what we think it ought to mean. It does not; it means what it says. And the guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right to . . . trial, by an impartial jury," has no intelligible content unless it means that all the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury.
Justice Thomas, with whom Justice Scalia joins as to Parts I and II, concurring.
I join the opinion of the Court in full. I write separately to explain my view that the Constitution requires a broader rule than the Court adopts.
I
This case turns on the seemingly simple question of what constitutes a "crime." Under the Federal Constitution, "the accused" has the right (1) "to be informed of the nature and cause of the accusation" (that is, the basis on which he is accused of a crime), (2) to be "held to answer for a capital, or otherwise infamous crime" only on an indictment or presentment of a grand jury, and (3) to be tried by "an impartial jury of the State and district wherein the crime shall have been committed." Amdts. 5 and 6. See also Art. III, § 2, cl. 3 ("The Trial of all Crimes . . . shall be by Jury"). With the exception of the Grand Jury Clause, see Hurtado v. California, 110 U. S. 516, 538 (1884), the Court has held that these protections apply in state prosecutions, Herring v. New York, 422 U. S. 853, 857, and n. 7 (1975). Further, the Court has held that due process requires that the jury find
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