Cite as: 518 U. S. 37 (1996)
O'Connor, J., dissenting
The Due Process Clause protects those " 'principle[s] of justice 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 (citations omitted). At the time the Fourteenth Amendment was ratified, the common-law rule on consideration of intoxication evidence was in flux. The plurality argues that rejection of the historical rule in the 19th century simply does not establish that the " 'new common-law' " rule is a principle of procedure so "deeply rooted" as to be ranked "fundamental." Ante, at 46-48. But to determine whether a fundamental principle of justice has been violated here, we cannot consider only the historical disallowance of intoxication evidence, but must also consider the "fundamental principle" that a defendant has a right to a fair opportunity to put forward his defense, in adversarial testing where the State must prove the elements of the offense beyond a reasonable doubt. As concepts of mens rea and burden of proof developed, these principles came into conflict, as the shift in the common law in the 19th century reflects.
III
Justice Ginsburg concurs in the Court's judgment based on her determination that § 45-2-203 amounts to a redefinition of the offense that renders evidence of voluntary intoxication irrelevant to proof of the requisite mental state. The concurrence emphasizes that States enjoy wide latitude in defining the elements of crimes and concludes that, "[c]omprehended as a measure redefining mens rea, § 45-2-203 encounters no constitutional shoal." Ante, at 58.
A state legislature certainly possesses the authority to define the offenses it wishes to punish. If the Montana Legislature chose to redefine this offense so as to alter the requisite mental-state element, the due process problem presented in this case would not be at issue.
There is, however, no indication that such a "redefinition" occurred. Justice Ginsburg's reading of Montana law is
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