Question

Pick a "vague' portion of the US Constitution.

Answer 1

A law that defines a crime in vague terms is likely to raise due-process issues. Courts in the United States give particular scrutiny to vague laws relative to First Amendment issues because of their possible chilling effect on protected rights.

According to the U.S. Supreme Court in Connally v. General Construction Co. (1926), a law is unconstitutionally vague when people “of common intelligence must necessarily guess at its meaning.” Whether or not the law regulates free speech, if it is unduly vague it raises serious problems under the due process guarantee, which is applicable to the federal government by virtue of the Fifth Amendment and to state governments through the Fourteenth Amendment.

Thus, in overturning a California loitering law that required persons who wander or loiter on the streets to provide “credible and reliable” identification in Kolender v. Lawson (1983), the Supreme Court explained that “the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory treatment.”

Void-for-vagueness doctrine has ancient roots

The void-for-vagueness doctrine probably has its roots in the ancient Roman law maxim, Nulla crimen sine lege (no crime without law). English jurist Sir Edward Coke stated that all laws, but especially serious penal laws, “ought to be . . . plainly and perspicuously penned. . . .” A century later Sir William Blackstone in his Commentaries on the English Constitution explained the requirement that every law clearly define and articulate “the right to be observed, and the wrongs to be eschewed. . . .” (Blackstone relates that a man who stole one horse was not penalized under a statute which forbade “stealing horses.”) In France, Montesquieu’s Spirit of the Laws urged that laws be concise, simple, and devoid of “vague expressions.”

These examples undoubtedly were known to early American commentators and jurists, who often reiterated the importance of clarity in criminal statutes. James Madison in Federalist No. 62 warns of the “calamitous” results if laws are “so incoherent that they cannot be understood. . . .” In an early federal court case, United States v. Sharp (1815), the Court argued that laws that “create crimes, ought to be so explicit in themselves, or by reference to some other standard, that all men, subject to their penalties, may know what acts it is their duty to avoid.”

Court has shown three reasons vague statutes are unconstitutional

A fundamental explication of the modern Supreme Court’s concerns regarding overly vague statutes is found in Grayned v. City of Rockford (1972). The Court upheld a city ordinance restricting any “noise or diversion” that would disrupt activities at a public school against claims of vagueness. Because Rockford’s ordinance was aimed at disruptive speech and was grounded in the interest of ensuring the order needed for a proper education, the Court found no constitutional violation. But the Court did suggest three reasons why overly vague statutes are unconstitutional.

• First, due process requires that a law provide fair warning and provides a “persons of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.”
• Second, the law must provide “explicit standards” to law enforcement officials, judges, and juries so as to avoid “arbitrary and discriminatory application.”
• Third, a vague statute can “inhibit the exercise” of First Amendment freedoms and may cause speakers to “steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.”

The void-for-vagueness doctrine probably has its roots in the ancient Roman law maxim, Nulla crimen sine lege (no crime without law). English jurist Sir Edward Coke stated that all laws, but especially serious penal laws, “ought to be . . . plainly and perspicuously penned. . . .” A century later Sir William Blackstone (pictured here) in his Commentaries on the English Constitution explained the requirement that every law clearly define and articulate “the right to be observed, and the wrongs to be eschewed. . . .” (Blackstone relates that a man who stole one horse was not penalized under a statute which forbade “stealing horses.”) In France, Montesquieu’s Spirit of the Laws urged that laws be concise, simple, and devoid of “vague expressions.” (Image via Wikimedia Commons circa 1755, public domain)