74
Souter, J., dissenting
part way, but not all the way, to answering the due process objection). In short, I read the State Supreme Court opinion as barring one interpretation that would leave the statutory scheme constitutional, while the State's failure to offer a justification for excluding relevant evidence leaves us unable to discern whether there may be a valid reason to support the statute as the State Supreme Court appears to view it. I therefore respectfully dissent from the Court's judgment.
I
The plurality opinion convincingly demonstrates that when the Fourteenth Amendment's Due Process Clause was added to the Constitution in 1868, the common law as it then stood either rejected the notion that voluntary intoxication might be exculpatory, ante, at 43-45, or was at best in a state of flux on that issue. See also ante, at 68-71 (O'Connor, J., dissenting). That is enough to show that Montana's rule that evidence of voluntary intoxication is inadmissible on the issue of culpable mental state contravenes no principle " 'so rooted in the traditions and conscience of our people,' " as they stood in 1868, " 'as to be ranked as fundamental,' " ante, at 47 (quoting Patterson v. New York, 432 U. S. 197, 202 (1977)). But this is not the end of the due process enquiry. Justice Harlan's dissenting opinion in Poe v. Ullman, 367 U. S. 497, 542 (1961), teaches that the "tradition" to which we are tethered "is a living thing." 1 What the historical practice does not rule out as inconsistent with "the concept of ordered liberty," Palko v. Connecticut, 302 U. S. 319, 325
1 "The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint." Poe v. Ullman, 367 U. S., at 542 (Harlan, J., dissenting).
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