Cite as: 518 U. S. 37 (1996)
Opinion of Scalia, J.
("We are aware that all but two of the States . . . have abandoned the common-law rule . . . . But the question remains whether those [two] States are in violation of the Constitution").
It is not surprising that many States have held fast to or resurrected the common-law rule prohibiting consideration of voluntary intoxication in the determination of mens rea, because that rule has considerable justification 3—which alone casts doubt upon the proposition that the opposite rule is a "fundamental principle." A large number of crimes, especially violent crimes, are committed by intoxicated offenders; modern studies put the numbers as high as half of all homicides, for example. See, e. g., Third Special Report to the U. S. Congress on Alcohol and Health from the Secretary of Health, Education, and Welfare 64 (1978); Note, Alcohol Abuse and the Law, 94 Harv. L. Rev. 1660, 1681-1682 (1981). Disallowing consideration of voluntary intoxication has the
3 In his dissent, Justice Souter acknowledges that there may be valid policy reasons supporting the Montana law, some of which were brought forward by States that appeared as amici, see post, at 77-78 (citing Brief for State of Hawaii et al. as Amici Curiae 16). He refuses to consider the adequacy of those reasons, however, because they were not brought forward by Montana's lawyers. We do not know why the constitutionality of Montana's enactment should be subject to the condition subsequent that its lawyers be able to guess a policy justification that satisfies this Court. Whatever they guess will of course not necessarily be the real reason the Montana Legislature adopted the provision; Montana's lawyers must speculate about that, just as we must. Our standard formulation has been: "Where . . . there are plausible reasons for [the legislature's] action, our inquiry is at an end." Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 179 (1980). Justice Souter would change that to: "Where there are plausible reasons that counsel for the party supporting the legislation have mentioned." Or perhaps it is: "Where there are plausible reasons that counsel for the Government (or State) have mentioned"—so that in this case Hawaii's amicus brief would count if a Hawaiian statute were at issue. Either way, it is strange for the constitutionality of a state law to depend upon whether the lawyers hired by the State (or elected by its people) to defend the law happen to hit the right boxes on our bingo card of acceptable policy justifications.
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