Originally uploaded at SSRN.


Since the emergence of the Apprendi majority and its newly minted (and evolving) constitutional limits on criminal punishment, many commentators have begun to address its implications for the horizontal relations between the branches of government — between legislators and courts, between judges and juries, and between judges and prosecutors. Less widely addressed, though equally (if not more) important, has been the Apprendi doctrine’s implications for vertical relations, particularly federalism.

This essay seeks to begin to fill that lacuna in the literature. Part I explains how Apprendi undermines principles of federalism, a curious tension because several of Apprendi’s strongest defenders, particularly Justices Scalia and Thomas, are also the most ardent protectors of federalism. Part II proposes how these justices can reconcile their commitments to Apprendi and federalism: relying on the Privileges or Immunities Clause, they should hold that the Sixth Amendment aspects of Apprendi do not apply to the states except where a state scheme departs from settled historical practice. Part III tests this theory against the existing Supreme Court Apprendi jurisprudence and as a tool for solving several current Apprendi-related debates developing in state courts. Part IV concludes.