Changing the Vocabulary of the Vagueness Doctrine

Abstract

The void-for-vagueness concept is itself indefinite, and the language of the doctrine exacerbates the problem. This article addresses situations where the doctrine has been used to invalidate criminal statutes that do not implicate specially protected constitutional rights. Its thesis is that application of the vagueness doctrine in this context can be understood as based on one or both of two constitutional requirements, and that they provide a better explanation for the results than traditional rhetoric. The two principles are: all crime must be based on conduct; and there must be a defensible and predictable correlation between the established meaning of a criminal prohibition and the conduct to which it is applied. The article begins by tracing the ori- gins of these two principles and then illustrates their explanatory power in two state cases — Lanzetta and Papachristou — and two federal cases — Skilling and Screws. Additional factors extraneous to the vagueness doctrine itself, however, often control the outcome in vagueness cases. This proposition is illustrated by two state cases — Morales and Kolender — and one federal case — Johnson v. United States.

Keywords: vagueness, arbitrary enforcement, fair notice, fair warning, rule of law, Johnson v. United States, Bouie, Shuttlesworth, Lanzetta, Papachristou, Morales, Kolender, Skilling, Screws v. United States, Robinson v. California