Cite as: 518 U. S. 37 (1996)
Opinion of Scalia, J.
policy, we must adhere." State v. Cross, 27 Mo. 332, 338 (1858).
And as late as 1878, the Vermont Supreme Court upheld the giving of the following instruction at a murder trial:
" 'The voluntary intoxication of one who without provocation commits a homicide, although amounting to a frenzy, that is, although the intoxication amounts to a frenzy, does not excuse him from the same construction of his conduct, and the same legal inferences upon the question of premeditation and intent, as affecting the grade of his crime, which are applicable to a person entirely sober.' " State v. Tatro, 50 Vt. 483, 487 (1878).
See also Harris v. United States, 8 App. D. C. 20, 26-30 (1896); Flanigan v. People, 86 N. Y. 554, 559-560 (1881); Commonwealth v. Hawkins, 69 Mass. 463, 466 (1855); State v. McCants, 1 Spears 384, 391-395 (S. C. 1842). Eventually, however, the new view won out, and by the end of the 19th century, in most American jurisdictions, intoxication could be considered in determining whether a defendant was capable of forming the specific intent necessary to commit the crime charged. See Hall, supra, at 1049; Hopt v. People, 104 U. S. 631, 633-634 (1882) (citing cases).
On the basis of this historical record, respondent's amicus
argues that "[t]he old common-law rule . . . was no longer deeply rooted at the time the Fourteenth Amendment was ratified." Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 23. That conclusion is questionable, but we need not pursue the point, since the argument of amicus mistakes the nature of our inquiry. It is not the State which bears the burden of demonstrating that its rule is "deeply rooted," but rather respondent who must show that the principle of procedure violated by the rule (and allegedly required by due process) is " 'so rooted in the traditions and conscience of our people as to be ranked as fundamental.' " Patterson v. New York, 432 U. S., at 202.
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