Vagueness Doctrine
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In American
constitutional law Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in ...
, a
statute A statute is a law or formal written enactment of a legislature. Statutes typically declare, command or prohibit something. Statutes are distinguished from court law and unwritten law (also known as common law) in that they are the expressed wil ...
may be void for vagueness and unenforceable if it is too vague for the average citizen to understand what acts or duties are required or restricted. This is because constitutionally permissible activity may not be chilled because of a statute's vagueness (either because the statute is a penal statute with criminal or quasi-criminal civil penalties, or because the interest invaded by the vague law is sufficiently fundamental to subject the statute to
strict scrutiny In U.S. constitutional law, when a law infringes upon a fundamental constitutional right, the court may apply the strict scrutiny standard. Strict scrutiny holds the challenged law as presumptively invalid unless the government can demonstrat ...
by a court determining its constitutionality). There are several reasons a statute may be considered vague; in general, a statute might be void for vagueness when an average citizen cannot generally determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed. For example, criminal laws which do not state explicitly and definitely what conduct is punishable are void for vagueness. A statute is also void for vagueness if a legislature's delegation of authority to judges or administrators is so extensive that it could lead to arbitrary prosecutions. A law can also be "void for vagueness" if it imposes on First Amendment freedom of speech, assembly, or religion. The "void for vagueness"
legal doctrine A legal doctrine is a framework, set of rules, Procedural law, procedural steps, or Test (law), test, often established through precedent in the common law, through which judgments can be determined in a given legal case. For example, a doctrine ...
does not apply to private law (that is, laws that govern rights and obligations as between private parties), only to laws that govern rights and obligations vis-a-vis the government. The doctrine also requires that to qualify as ''constitutional'', a law must: * State explicitly what it mandates, and what is enforceable. * Define potentially vague terms. An example of law, that has been criticized in the USA for vagueness is Federal Analogue Act, which establishes criminal liability for making/selling chemicals, which are "analogous" to known prohibited drugs, but fails to be sufficiently specific for the accused to know, whether an "analogous drug" is prohibited or not. According to this law, a sale of a bar of chocolate containing phenethylamine (an "analog" of
amphetamine Amphetamine (contracted from Alpha and beta carbon, alpha-methylphenethylamine, methylphenethylamine) is a central nervous system (CNS) stimulant that is used in the treatment of attention deficit hyperactivity disorder (ADHD), narcolepsy, an ...
) can give rise to a criminal liability.


Historical background

The concept of vagueness in law, particularly in the context of the void-for-vagueness doctrine, has ancient roots. It is believed to originate from the
Roman law Roman law is the law, legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (), to the (AD 529) ordered by Eastern Roman emperor Justinian I. Roman law also den ...
maxim, "Nulla crimen sine lege" (no crime without law). This principle was echoed by English jurist Sir
Edward Coke Sir Edward Coke ( , formerly ; 1 February 1552 – 3 September 1634) was an English barrister, judge, and politician. He is often considered the greatest jurist of the Elizabethan era, Elizabethan and Jacobean era, Jacobean eras. Born into a ...
, who emphasized the importance of laws, especially penal laws, being "plainly and perspicuously penned." This sentiment was further developed by Sir
William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, Justice (title), justice, and Tory (British political party), Tory politician most noted for his ''Commentaries on the Laws of England'', which became the best-k ...
in his "Commentaries on the English Constitution," where he highlighted the necessity for laws to clearly define the rights to be observed and the wrongs to be avoided. Montesquieu, in his work "Spirit of the Laws," advocated for laws to be concise, simple, and free from vague expressions. These early thoughts undeniably influenced American legal commentators and
jurists A jurist is a person with expert knowledge of law; someone who analyzes and comments on law. This person is usually a specialist legal scholar, mostly (but not always) with a formal education in law (a law degree) and often a legal practition ...
.


Roots and purpose

The void for vagueness doctrine derives from the
Due Process Clause A Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibit the deprivation of "life, liberty, or property" by the federal and state governments, respectively, without due proces ...
s of the Fifth and Fourteenth Amendments to the
United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally includi ...
. That is, vague laws unconstitutionally deprive people of their rights without
due process Due process of law is application by the state of all legal rules and principles pertaining to a case so all legal rights that are owed to a person are respected. Due process balances the power of law of the land and protects the individual p ...
. The following pronouncement of the void for vagueness doctrine was made by Justice Sutherland in '' Connally v. General Construction Co.'', , 391 (1926): The void for vagueness doctrine requires that laws are so written that they explicitly and definitely state what conduct is punishable. The doctrine thus serves two purposes. First, all persons receive a fair notice of what is punishable and what is not. Second, it helps prevent arbitrary enforcement of the laws and arbitrary prosecutions. The void for vagueness doctrine developed because, "When Congress does not set minimum guidelines to govern law enforcement, there is no limit to the conduct that can be criminalized." '' Grayned v. City of Rockford'', , 391 (1972):


Specific application

There are at least two ways a law might be attacked for being unconstitutionally vague: *When a law does not specifically enumerate the practices that are either required or prohibited. In this case, the ordinary citizen does not know what the law requires. See also '' Coates v. City of Cincinnati'' (1971) and ''FCC v. Fox Television Stations, Inc'' (2012). *When a law does not specifically detail the procedure followed by officers or judges of the law. As a guard, a law must particularly detail what officers are to do, providing both for what they must do and what they must not do. Under the doctrine, judges must have a clear understanding of how they are to approach and handle a case. See also '' Kolender v. Lawson'' (1983). Both scienter and objective criteria that specify the harm to be protected against are necessary to limit vagueness in criminal statutes (Compare page 9 of ). To satisfy the Due Process Clause of the Fifth Amendment, individuals are entitled to understand the scope and nature of statutes which might subject them to criminal penalties. Thus, in '' Skilling v. United States'' (2010), it was held that a "penal statute must define the criminal offense (1) with sufficient definiteness that ordinary people can understand what conduct is prohibited and (2) in a manner that does not encourage arbitrary and discriminatory enforcement."


Unconstitutional vagueness

Unconstitutional vagueness is a concept that is used to strike down certain laws and judicial actions in United States federal courts. It is derived from the
due process Due process of law is application by the state of all legal rules and principles pertaining to a case so all legal rights that are owed to a person are respected. Due process balances the power of law of the land and protects the individual p ...
doctrine found in the Fifth and Fourteenth Amendments to the
United States Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally includi ...
. The doctrine prohibits criminal prosecution for laws where it is impossible to reasonably understand what conduct is prohibited.


Examples of unconstitutional vagueness

*The
Florida Supreme Court The Supreme Court of Florida is the state supreme court, highest court in the U.S. state of Florida. It consists of seven justices—one of whom serves as Chief Justice. Six members are chosen from six districts around the state to foster geog ...
, in '' Franklin v. State'' (Fla. 1971), ruled that the state's felony ban on sodomy was unconstitutionally vague because an "average person of common intelligence" could not reasonably know, without speculating, whether "abominable and detestable crime against nature" included oral sex or only anal sex. *'' Papachristou v. Jacksonville'' (1972) and '' Kolender v. Lawson'' (1983) were two U.S. Supreme Court cases where the court struck down laws against
vagrancy Vagrancy is the condition of wandering homelessness without regular employment or income. Vagrants usually live in poverty and support themselves by travelling while engaging in begging, waste picker, scavenging, or petty theft. In Western ...
for unconstitutional vagueness; in restricting activities like "loafing", "strolling", or "wandering around from place to place", the law gave arbitrary power to the police and, since people could not reasonably know what sort of conduct is forbidden under the law, could potentially criminalize innocuous everyday activities. *In '' Hoffman Estates v. The Flipside, Hoffman Estates, Inc.'' (1982), the Supreme Court considered a pre-enforcement challenge to a municipal ordinance imposing licensing requirements and other restrictions on stores that sold drug paraphernalia. The Court sided with the village, holding that in such a lawsuit the plaintiff must demonstrate that the law would be "impermissibly vague in all its applications".'' Hoffman Estates v. The Flipside, Hoffman Estates, Inc.'', , at 495, Marshall, J. *The U.S. Supreme Court, in '' City of Akron v. Akron Center for Reproductive Health'' (1983), struck down a provision of Akron's abortion law which required that physicians dispose of fetal remains in a "humane and sanitary manner". "Humane" was judged to be unconstitutionally vague as a "definition of conduct subject to criminal prosecution"; the physician could not be certain whether or not his conduct was legal. *The
United States Court of Appeals for the Third Circuit The United States Court of Appeals for the Third Circuit (in case citations, 3d Cir.) is a United States federal court, federal court with appellate jurisdiction over the United States district court, district courts for the following United Sta ...
ruled that a supervised release condition prohibiting a defendant from possessing "all forms of pornography, including legal adult pornography" was unconstitutionally vague because it posed a real danger that the prohibition on pornography might ultimately translate to a prohibition on whatever the officer personally found titillating. *In ''FCC v. Fox Television Stations, Inc'' (2012), the Supreme Court ruled that since the words "obscene", "vulgar", "profane", and "indecent", were not accurately defined by the FCC, it was unconstitutionally vague to enforce the restrictions against "obscene", "vulgar", "profane", or "indecent" acts since any person may see different things as obscene, vulgar, profane, or indecent. This was also compounded by the fact that the FCC allowed some words such as "shit" and "fuck" permissible to utter or state in some, but unclear, circumstances; but this was only seen as an accessory to the aforementioned reason. *In ''Johnson v. United States'' (2015), the
Supreme Court In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
ruled that the residual clause in the Armed Career Criminal Act was unconstitutionally vague and a violation of due process. The residual clause provided for an enhanced prison sentence for people who had previously been convicted of 3 or more violent felonies, which was defined as "use of physical force against the person of another", "burglary, arson, or extortion", "involves use of explosives", or "otherwise involves conduct that presents a serious potential risk of physical injury to another". The last part is known as the residual clause. The court determined that the residual clause was unconstitutionally vague because of the combination of two factors: (1) it focused on the ordinary case of a felony, rather than statutory elements or the nature of the convicted's actions, leaving significant uncertainty about how to assess the risk posed by a crime; and (2) the clause does not give an indication of how much risk is necessary to qualify as a violent felony.''Johnson'', slip op. at 5-10 Johnson's case—the fifth U.S. Supreme Court case about the meaning of the residual clause—involved whether possession of a short-barrelled shotgun was a violent felony. *In '' Sessions v. Dimaya'' (2018), the Supreme Court ruled that a statute defining certain "aggravated felonies" for immigration purposes, is unconstitutionally vague. Justice
Neil Gorsuch Neil McGill Gorsuch ( ; born August 29, 1967) is an American jurist who serves as an Associate Justice of the Supreme Court of the United States, associate justice of the Supreme Court of the United States. He was Neil Gorsuch Supreme Court ...
, in a concurring opinion, stressed the dangers of vague laws.


See also

* Indeterminacy debate in legal theory * Overbreadth doctrine * Plain Language Movement *
Rule according to higher law The rule according to a higher law is a philosophical concept that no law may be enforced by the government unless it conforms with certain universal principles (written or unwritten) of fairness, morality, and justice. Thus, ''the rule accordin ...


Notes


References

* Chemerinsky, Erwin. (2002). ''Constitutional Law Principles and Policies'', Aspen Publishers, . *Harr, J. Scott and Kären M. Hess. (2004). ''Constitutional Law and the Criminal Justice System'', Wadsworth Publishing, {{ISBN, 0-534-62880-X. * American legal terminology United States criminal constitutional law Due Process Clause Ambiguity