Priester argues that the Constitution does restrict the power of the legislature by requiring that certain facts be proved as elements of the offense. He notes the Supreme Court's missed opportunity in "Jones v. United States" to adopt the test proposed by Justice Scalia.
Benjamin J. Priester,
Sentenced for a “Crime” the Government Did Not Prove: Jones v. United States and the Constitutional Limitations on Factfinding by Sentencing Factors Rather Than Elements of the Offense,
61 Law and Contemporary Problems
Available at: http://scholarship.law.duke.edu/lcp/vol61/iss4/13