Dispatch from the Supreme Court archives: vagrancy, abortion, and what the links between them reveal about the history of fundamental rights.

• Author: Goluboff, Risa L.

The title of this Essay is somewhat misleading. First of all, by Supreme Court archives, I do not mean the official documents of the Supreme Court as an institution. Rather, my dispatch heralds from the archives of individual Justices who have deposited their papers in a variety of institutions, most notably the Library of Congress. Second of all, I am not actually writing from those archives. With a digital camera and a lot of memory cards, I have essentially reproduced the archives on my computer. As this nifty technology allows me to read my thousands of documents pretty much anywhere, I must confess: I am not, at this very moment, in the archives.

Metaphorically speaking, however, my title is accurate. This Essay is a dispatch from the archives in the sense that I am here to share a few finds I made in the Justices' papers that I imagine will be of interest to many a scholar of law and history. These finds consist of (1) portions of an early draft of Justice William O. Douglas's opinion in the 1972 vagrancy case of Papachristou v. City of Jacksonville; (1) (2) memoranda between Justice Douglas and Justices William J. Brennan, Jr., and Potter Stewart about that opinion; (2) and (3) a memo from Brennan to Douglas about Roe v. Wade. (3) These documents--which I have reproduced below for your perusal--shed new light on several apparently disparate issues in constitutional law: the Supreme Court's use of void-for-vagueness doctrine, the social and constitutional history of vagrancy law, the possibility and contours of constitutional regulation of substantive criminal law, the relationship between Papachristou and Roe, and the development and conceptualization of fundamental rights. I am guessing that you are surprised to learn that previously untapped Supreme Court documents reveal links between this odd assortment of subjects. You are probably even more surprised to learn that the glue that holds it all together is vagrancy law. Vagrancy law, you ask? Vagrancy law, I say. But let me explain.

Ever since Anthony Amsterdam published his pathbreaking note on the void-for-vagueness doctrine in 1960, (4) legal scholars have speculated about the Supreme Court's use of the doctrine. On the surface, under void-for-vagueness, judges condemn as violations of the Due Process Clause of the Fifth or Fourteenth Amendment those laws they deem unduly vague or ambiguous. As Amsterdam described it, such vagueness is constitutionally problematic for two reasons. First, vagueness fails to give fair notice to the public as to what constitutes illegal conduct. Second, vagueness fails to guide the discretion of executive officers and judges; it accordingly encourages arbitrary and potentially discriminatory arrests and criminal convictions. Vagueness thus poses problems for the principle of legality and the rule of law itself. (5)

Amsterdam accepted the validity of these concerns, but he was not convinced that vagueness--an indefiniteness of language--was always the real problem in so-called vagueness cases. Rather, he argued that vagueness was often the Court's way of obfuscating its commitments to particular substantive values. Vagueness was a "makeweight," "an available instrument in the service of other more determinative judicially felt needs and pressures." (6) For example, Amsterdam showed how the Court had sometimes used vagueness during the first third of the twentieth century in lieu of economic substantive due process. (7) Similarly, when the Court became more committed to First Amendment protections beginning in the late 1930s, it used vagueness to strike down laws that restricted free speech. (8)

In the decade that followed the publication of Amsterdam's note, lawyers deemed void-for-vagueness a promising form of constitutional argument in cases involving many of the pressing social and political issues of the day. They frequently used vagueness to challenge the petty criminal convictions of civil rights protestors, Vietnam War demonstrators, and other free speakers. Vagueness also became a major issue in a raft of cases lawyers brought against vagrancy laws in the 1960s, as I will discuss in a moment. Courts often, though not always, spoke the language of vagueness when they reversed the convictions of social movement participants for vagrancy, loitering, disorderly conduct, breach of the peace, and other crimes. As scholars watched courts use vagueness to vindicate sympathetic defendants, they wondered whether, and often assumed that, vagueness was indeed a stand-in for other concerns. (9)

In 1972, the Supreme Court used the void-for-vagueness doctrine to strike down an archaic Florida vagrancy law in Papachristou v. City of Jacksonville. (10) The ordinance criminalized those deemed vagrants, which included, among many others, "[r]ogues and vagabonds, or dissolute persons who go about begging, ... persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers." (11) Jacksonville police officers used the ordinance to regulate and harass any number of socially marginal groups who failed--by choice or coercion--to comply with middle-class norms of behavior. These included poor people, African Americans, anyone who violated racial norms (by, for example, dating across the color line), and other nonconformists and dissidents. Writing for a unanimous Court, (12) Justice William O. Douglas emphasized that the ordinance was vague both because it failed to give "fair notice" to the public about what conduct was criminal and because it encouraged "arbitrary and erratic arrests and convictions." (13) These were the two hallmarks of vagueness Amsterdam had described in 1960.

But Douglas did not stop there. In addition to relying on vagueness, he discussed at length the importance of the particular activities in which the Papachristou defendants had been engaged when arrested. He described walking, strolling, loafing, wandering, nightwalking, and the like as "historically part of the amenities of life as we have known them." (14) While Douglas acknowledged that they were "not mentioned in the Constitution or in the Bill of Rights," he nonetheless emphasized that "[t]hese unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness." He viewed these amenities as "hav[ing] encouraged lives of high spirits rather than hushed, suffocating silence." (15) Douglas referred to the writings of such American literary luminaries as Walt Whitman and Henry David Thoreau for the depth of the American commitment to such freedoms. (16)

This lofty rhetoric has led scholars, lawyers, and judges in the decades since Papachristou to speculate about the meaning and implications of Papachristou specifically and void-for-vagueness doctrine more generally. In his article, Reconceptualizing Vagueness, for example, Professor Robert Post describes the Papachristou Court as "trembl[ing] at the brink of ... a substantive due process analysis." (17) He speculates that the "Court could have argued that it was constitutionally forbidden to use judgments to impose 'lifestyle' norms on unwilling segments of the population." (18) Because the law systematically and legitimately regulates various kinds of social outliers, however, deciding the case on those grounds would have required the Court to determine precisely when the imposition of such norms was unconstitutional. That would have been difficult. (19) Post suggests that instead the Court used vagueness doctrine to delineate "the kinds of judgments that can be made by government officials" in particular circumstances. (20) Accordingly, Post interprets the Court's use of vagueness as "in effect, decid[ing] that it is constitutionally arbitrary and improper to use compliance with bourgeois morals as a trigger for police control." (21) Building on Post's work, Debra Livingston has noted that lower courts too have treated Papachristou as if it had a substantive component--as if its vagueness determination turned on "the character of prohibited conduct, rather than the clarity of the language with which it is prohibited." (22)

As it turns out, the Court came closer to the brink of substantive due process than Post, Livingston, and others have realized. And here is the first of the advertised portions of this Essay: the draft opinions in the Justices' papers did not in fact rely on vagueness alone. In addition, they relied at first on the Ninth Amendment and then on substantive due process. In one earlier draft, Douglas described the same activities listed above not as "historically part of the amenities of life as we have known them," but rather as "historically part of the amenities of life contained in those rights 'retained by the peopl[e]' within the meaning of the Ninth Amendment." (23) Several years earlier, in Griswold v. Connecticut, a few Justices had excavated the Ninth Amendment as a potential resource for the protection of individual rights. (24) Though Douglas had not relied heavily on that Amendment in his majority opinion in Griswold, it clearly remained within the universe of doctrinal possibilities he deemed worth consideration. (25)

Douglas's description of these activities as Ninth Amendment "rights" was no idle throwaway. He explicitly applied the strict scrutiny standard applicable "where fundamental rights and liberties are at issue." He granted that state police power authorized regulation of some of the petty criminals listed in the Jacksonville ordinance--the "gamblers, thieves, pilferers, pickpockets, traders in stolen property, drunkards, railers, and brawlers." But where Ninth Amendment rights were concerned, strict scrutiny applied. "[A]s we have often stated, laws in these sensitive areas must be...