Cite as: 530 U. S. 466 (2000)
O'Connor, J., dissenting
increase or a decrease in punishment rests in the eye of the beholder. Again, it is difficult to understand, and neither the Court nor Justice Thomas explains, why the Constitution would require a state legislature to follow such a meaningless and formalistic difference in drafting its criminal statutes.
If either of the above readings is all that the Court's decision means, "the Court's principle amounts to nothing more than chastising [the New Jersey Legislature] for failing to use the approved phrasing in expressing its intent as to how [unlawful weapons possession] should be punished." Jones, 526 U. S., at 267 (Kennedy, J., dissenting). If New Jersey can, consistent with the Constitution, make precisely the same differences in punishment turn on precisely the same facts, and can remove the assessment of those facts from the jury and subject them to a standard of proof below "beyond a reasonable doubt," it is impossible to say that the Fifth, Sixth, and Fourteenth Amendments require the Court's rule. For the same reason, the "structural democratic constraints" that might discourage a legislature from enacting either of the above hypothetical statutes would be no more significant than those that would discourage the enactment of New Jersey's present sentence-enhancement statute. See ante, at 490-491, n. 16 (majority opinion). In all three cases, the legislature is able to calibrate punishment perfectly, and subject to a maximum penalty only those defendants whose cases satisfy the sentence-enhancement criterion. As Justice Kennedy explained in Jones, "[n]o constitutional values are served by so formalistic an approach, while its constitutional costs in statutes struck down . . . are real." 526 U. S., at 267.
Given the pure formalism of the above readings of the Court's opinion, one suspects that the constitutional principle underlying its decision is more far reaching. The actual principle underlying the Court's decision may be that any fact (other than prior conviction) that has the effect, in real terms, of increasing the maximum punishment beyond an
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