The Court's consideration of a variety of Federal criminal provisions reflects a continuing struggle to adopt a consistent approach to reviewing criminal provisions that both respects Congress' power to enact criminal law and avoids judicial second- guessing as to what the legislature should have written. The Court engaged in statutory interpretation in "X-Citement Video" to avoid a constitutional issue. "X-Citement Video's" analysis was questionable because it cloaked its conclusion in the language of statutory interpretation to avoid construing the statute in such a way as to impinge on an important constitutional protection, freedom of expression. "Hubbard" faced the challenge of overturning a clear, if flawed, precedent that made adherence to the principle of stare decisis intellectually insupportable. The constitutional aspects of statutory interpretation can come to the forefront through "Gaudin." That decision calls into question convictions in cases that require proof of materiality, an issue decided traditionally by the judge, not the jury. Courts will have to review a wide variety of Federal statutes that leave important fact-finding to the judge to determine, first, whether "Gaudin" requires the jury to make the decisions, and, second, whether any error on that issue mandates reversal of the conviction. Beyond the direct effect of "Gaudin" on convictions, the Court's coupling of the fifth and sixth amendments creates a new vehicle for defendants to challenge decisions made by the judge that affect the deliberations of the jury. Moreover, the power of legislatures to define the elements of a crime may be in for closer review in the context of "Gaudins" requirement that only the jury may decide mixed questions of law and fact. 146 footnotes