Cite as: 507 U. S. 463 (1993)
Blackmun, J., dissenting
tice O'Connor, writing for the Court, described the District of Columbia's homicide statute: " 'In homespun terminology, intentional murder is in the first degree if committed in cold blood, and is murder in the second degree if committed on impulse or in the sudden heat of passion.' " Id., at 170, n. 18, quoting Austin v. United States, 127 U. S. App. D. C. 180, 188, 382 F. 2d 129, 137 (1967). Murder in cold blood is, in this sense, the opposite of murder in "hot blood." Arguably, then, the Osborn formulation covers every intentional or first-degree murder. An aggravating circumstance so construed would clearly be unconstitutional under Godfrey.
Finally, I examine the construction's application by the Idaho courts. The majority acknowledges the appropriateness of examining "other state decisions when the construction of an aggravating circumstance has been unclear," such as where state courts have not adhered to a single limiting construction. Ante, at 477. Here, however, the majority believes such an inquiry is "irrelevant," ante, at 476, because "there is no question that Idaho's formulation of its limiting construction has been consistent," ante, at 477. The majority misses the point. Idaho's application of the Osborn formulation is relevant not because that formulation has been inconsistently invoked, but because the construction has never meant what the majority says it does. In other words, it is the majority's reconstruction of the (unconstitutional) construction that has not been applied consistently (or ever, for that matter). If, for example, a State declared that "jaberwocky" was an aggravating circumstance, and then carefully invoked "jaberwocky" in every one of its capital cases, this Court could not simply decide that "jaberwocky" means "killing a police officer" and then dispense with any inquiry into whether the term ever had been understood in that way by the State's courts, simply because the "jaberwocky" construction consistently had been reaffirmed.
An examination of the Idaho cases reveals that the Osborn formulation is not much better than "jaberwocky." As
485
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