Vagueness

• Author: Jonathan D. Varat
• Pages: 2775-2777

Page 2775

The Fifth Amendment and FOURTEENTH AMENDMENT respectively prohibit the federal and state governments from taking life, liberty, or property without DUE PROCESS OF LAW. These provisions forbid the enforcement of any law that, in the classic words of Connally v. General Construction Co. (1926), "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." Vagueness imperils the fair administration of legal sanctions in several ways. First, it threatens punishment of people who had no fair warning of what conduct to avoid. Second, by creating interpretive latitude for those who apply the law?police, prosecutors, judges, juries, and others?vagueness permits punishment to be inflicted selectively for arbitrary or improper reasons. Third, a law's vagueness hinders the efforts of reviewing courts to control such abuses in the law's enforcement; the less clear the law is, the less visible?and correspondingly more difficult to detect and correct?are irregular instances of its administration.

To minimize these dangers, the due process requirement of reasonable clarity forbids enforcement even if the legislature constitutionally could have prohibited, through a clearer law than it did enact, all the behavior its vague law might have been intended to reach. When the uncertain coverage of a vague law might extend into areas of behavior that are constitutionally protected from regulation, however, the ordinary dangers of arbitrary enforcement are heightened, and two additional concerns emerge: the risk that a vague law, which inevitably poses an uncertain risk of prosecution, will inhibit people from exercising precious liberties that the government has no right to outlaw, and the possibility that the legislature did not explicitly focus on the liberty interest and thus did not actually decide that there was compelling reason to regulate it.

The deterrence of constitutionally guaranteed activity that vagueness may produce is akin to the deterrence produced by overbroad laws that encompass both behavior that legitimately may be regulated and behavior that is constitutionally protected. Vagueness differs from over-breadth in that the source of potential inhibition is the law's lack of clarity, not its excessive reach. Yet in both cases the ultimate threat is that those who wish to exercise constitutional rights will refrain from doing so for fear of being penalized. That vagueness may have the practical effect of overbroad regulation explains the common doctrinal confusion between the two concepts. Vagueness also differs from OVERBREADTH in another way: an uncertain law that addresses, even in its most expansive interpretation, only behavior that constitutionally may be regulated may still be void for vagueness, but, by definition, cannot be...