48
Opinion of Scalia, J.
Thus, even assuming that when the Fourteenth Amendment was adopted the rule Montana now defends was no longer generally applied, this only cuts off what might be called an a fortiori argument in favor of the State. The burden remains upon respondent to show that the "new common-law" rule—that intoxication may be considered on the question of intent—was so deeply rooted at the time of the Fourteenth Amendment (or perhaps has become so deeply rooted since) as to be a fundamental principle which that Amendment enshrined.
That showing has not been made. Instead of the uniform and continuing acceptance we would expect for a rule that enjoys "fundamental principle" status, we find that fully one-fifth of the States either never adopted the "new common-law" rule at issue here or have recently abandoned it.2 Cf. Cooper v. Oklahoma, 517 U. S. 348 (1996) (finding due process violation in a rule having no common-law pedigree whatever, and adopted, very recently, by only four States). See also Martin v. Ohio, 480 U. S. 228, 236 (1987)
2 Besides Montana, those States are Arizona, see State v. Ramos, 133 Ariz. 4, 6, 648 P. 2d 119, 121 (1982) (upholding statute precluding jury consideration of intoxication for purposes of determining whether defendant acted "knowingly"); Ariz. Rev. Stat. Ann. § 13-503 (Supp. 1995-1996) (voluntary intoxication "is not a defense for any criminal act or requisite state of mind"); Arkansas, see White v. State, 290 Ark. 130, 134-137, 717 S. W. 2d 784, 786-788 (1986) (interpreting Ark. Code Ann. § 5-2-207 (1993)); Delaware, see Wyant v. State, 519 A. 2d 649, 651 (1986) (interpreting Del. Code Ann., Tit. 11, § 421 (1995)); Georgia, see Foster v. State, 258 Ga. 736, 742-745, 374 S. E. 2d 188, 194-196 (1988) (interpreting Ga. Code Ann. § 16-3-4 (1992)), cert. denied, 490 U. S. 1085 (1989); Hawaii, see Haw. Rev. Stat. § 702-230(2) (1993), State v. Souza, 72 Haw. 246, 248, 813 P. 2d 1384, 1386 (1991) (§ 702-230(2) is constitutional); Mississippi, see Lanier v. State, 533 So. 2d 473, 478-479 (1988); Missouri, see Mo. Rev. Stat. § 562.076 (1994), State v. Erwin, 848 S. W. 2d 476, 482 (§ 562.076 is constitutional), cert. denied, 510 U. S. 826 (1993); South Carolina, see State v. Vaughn, 268 S. C. 119, 124-126, 232 S. E. 2d 328, 330-331 (1977); and Texas, see Hawkins v. State, 605 S. W. 2d 586, 589 (Tex. Crim. App. 1980) (interpreting Tex. Penal Code Ann. § 8.04 (1974)).
Page: Index Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 NextLast modified: October 4, 2007