Incoherent and Indefensible: An Interdisciplinary Critique of the Supreme Court's Void-for-Vagueness Doctrine

Abstract

The Supreme Court’s “void-for-vagueness” (or simply “vagueness”) doctrine, rooted in the substantive due process guarantee of the Fifth and Fourteenth Amendments, is occasionally used to strike down statutes that “fail to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute” and “encourage arbitrary and erratic arrests and convictions.”

This Article first argues that the doctrine contains no unique element that separates it from other substantive due process principles. Then, the Article briefly discusses the concept of vagueness as understood by linguists and philosophers working outside the legal community. Finally, the Article concludes that a major contributing factor to the conceptual incoherence of the void-for-vagueness doctrine is that the doctrine has — despite its name — nothing whatsoever to do with vagueness. Vagueness (and indeterminacy generally) is pervasive in law and hardly confined to the handful of statutes that the Supreme Court has struck down on void-for-vagueness grounds.

The Article proposes that the Justices’ commitment to the “fundamental rights” framework of due process has led them to couch some results that do not fit this framework in terms of the void-for-vagueness doctrine, so as to avoid reopening the possibility of broader, more robust judicial review of all statutes, regardless of their subject-matter, on substantive due process grounds.

Keywords: vagueness, substantive due process, Constitutional Law, Fifth Amendment, Fourteenth Amendment, Papachristou, Morales, linguistics, philosophy, rational basis, economic rights, fundamental rights, Carolene Products