Sotomayor thinks historical practices, in Southern Union v. United States:
The Government and dissent place greater reliance on United States v. Tyler, 7 Cranch 285 (1812). But like Murphy, this decision involved no constitutional question. Rather, it construed a federal embargo statute that imposed a fine of four times the value of the property intended to be exported. The indictment identified the property at issue as “pearl-ashes,” but the jury’s guilty verdict referred instead to “‘pot-ashes [that] were worth two hundred and eighty dollars.’” Tyler, 7 Cranch, at 285.7 The question was whether the discrepancy rendered the verdict “not sufficiently certain as to the value of the property charged in the indictment,” i.e., pearl-ashes. Ibid. The Court held that the discrepancy was immaterial, on the ground that “under this law, no valuation by the jury was necessary to enable the Circuit Court to impose the proper fine.” Ibid. The Court’s reasoning is somewhat opaque, but appears to rest on the text of the embargo statute, which directed that the defendant “shall, upon conviction, be . . . fined a sum by the Court.” Ibid. In any event, nothing in the decision purports to construe the Sixth Amendment. And, insofar as Tyler reflects prevailing practice, it bears noting that both the indictment and verdict identified the value of the property at issue. See Tr. 2 in Tyler, 7 Cranch 285, reprinted in Appellate Case Files of the Supreme Court of the United States, 1792– 1831, National Archives Microfilm Publications No. 214 (1962), roll 18 (indictment: “nineteen barrels of pearlashes, which were then and there of the value of six hundred dollars”). Whatever the precise meaning of this decision, it does not outweigh the ample historical evidence showing that juries routinely found facts that set the maximum amounts of fines.
Breyer thinks the Court trumps:
The Court did not say explicitly that the Sixth Amendment permitted the judge to find the relevant sen tencing fact. See ante, at 14. But it seems unlikely that a Court that included Chief Justice John Marshall, Justice Joseph Story, and others familiar with both the common law and the Constitution would have interpreted a federal statute as they did if either contemporary legal practice or the Constitution suggested or required a differ ent interpretation
In any event, Breyer seems to largely reject post-enactment originalism:
Taken together, the 19th-century cases upon which the majority rests its holding do not show anything about practice in the vast majority of States. They concede that common-law practice was to the contrary. And they tell us little about the meaning of the Sixth Amendment. Even were that not so, I do not understand why these mid-19th century cases should tell us more about the Constitution’s meaning than, say, the common 20th-century practice of leaving sentencing fact determinations to the judge. This Court apparently once approved the latter practice as constitutional. E.g., McMillan v. Pennsylvania, 477 U. S. 79 (1986); Almendarez-Torres, 523 U. S. 224. And these cases seem more closely related to the present topic.