Cite as: 530 U. S. 466 (2000)
O'Connor, J., dissenting
Justice Thomas is correct to note that American courts in the 19th century came to confront this question in their cases, and often treated facts that served to increase punishment as elements of the relevant statutory offenses. To the extent Justice Thomas' broader rule can be drawn from those decisions, the rule was one of those courts' own invention, and not a previously existing rule that would have been "codified" by the ratification of the Fifth and Sixth Amendments. Few of the decisions cited by Justice Thomas indicate a reliance on pre-existing common-law principles. In fact, the converse rule that he identifies in the 19th-century American cases—that a fact that does not make a difference in punishment need not be charged in an indictment, see, e. g., Larned v. Commonwealth, 53 Mass. 240, 242-244 (1847)—was assuredly created by American courts, given that English courts of roughly the same period followed a contrary rule. See, e. g., Rex v. Marshall, 1 Moody C. C. 158, 168 Eng. Rep. 1224 (1827). Justice Thomas' collection of state-court opinions is therefore of marginal assistance in determining the original understanding of the Fifth and Sixth Amendments. While the decisions Justice Thomas cites provide some authority for the rule he advocates, they certainly do not control our resolution of the federal constitutional question presented in the instant case and cannot, standing alone, justify overruling three decades' worth of decisions by this Court.
In contrast to Justice Thomas, the Court asserts that its rule is supported by "our cases in this area." Ante, at 490. That the Court begins its review of our precedent with a quotation from a dissenting opinion speaks volumes about the support that actually can be drawn from our cases for the "increase in the maximum penalty" rule announced today. See ante, at 484 (quoting Almendarez-Torres, 523 U. S., at 251 (Scalia, J., dissenting)). The Court then cites our decision in Mullaney v. Wilbur, 421 U. S. 684 (1975), to demonstrate the "lesson" that due process and jury protec-
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