Beyond Statutory Elements: The Substantive Effects of the Right to a Jury Trial on Constitutionally Significant Facts

EGISLATIVE supremacy over the substance of criminal law is a virtually unchallenged proposition. In contrast to the explosion of the constitutionalization of criminal procedure, constitutional regulation of substantive criminal law has been limited and sporadic. The courts have, however, periodically undertaken efforts to create an area of substantive constitutional criminal law. When the courts have imposed constitutional limits on the substance of criminal law they have done so in three contexts. First, courts have enforced specific constitutional provisions, such as the First Amendment’s prohibition of the criminalization of most types of speech. Second, and more generally, the United States Supreme Court has imparted limited actus reus and mens rea requirements. Finally, the Court has interpreted the Eighth Amendment to require proportionality between the underlying crime and the punishment imposed. Guidance as to where these boundaries fall, however, has often been hazy and of dubious value.