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Apprendi And Federalism, Peter B. Rutledge

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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 …