Federal Courts, Overbreadth, and Vagueness: Guiding Principles for Constitutional Challenges to Uninterpreted State Statutes

Abstract

When a federal court is asked to declare an uninterpreted state law to be unconstitutionally overbroad or vague, it faces several tensions. On one side, the overbreadth and vagueness doctrines urge the court to strike down the statute on its face. On the other side, the related doctrines of constitutional avoidance, narrowing interpretations, abstention and certification all urge the court to find some way to save the statute at least as to some applications. But because of the cardinal principle that federal courts are not the final authority on the interpretation of state law, many federal courts err on the side of facial invalidation, thinking that any narrowing interpretation or abstention might be pointless.

This was especially prevalent in the federal courts' handling of the 20 or so partial-birth abortion cases, in which many different federal courts heard challenges to state laws that were largely drafted on the same model. Using this set of cases as an example, we examine how federal courts handled the doctrinal tensions, and suggest ways for federal courts to prevent unconstitutional applications without using the strong remedy of facial invalidation. Specifically, we argue that federal courts in overbreadth/vagueness cases - which are facial challenges - have the same power that they do in as-applied challenges to limit the scope and applicability of a state statute. We argue that federal courts should consider a more prominent use of this power to avoid overly interfering with state laws.

Keywords: overbreadth, vagueness, partial birth abortion

JEL Classification: K30