Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67 (1960)

Cases involving the issue of whether a statute is void or unenforceable for indefiniteness may be found in courts of all levels in all jurisdictions and are not peculiar to federal constitutional jurisprudence. Indeed, the thesis has been put forward that the development in federal law of the void-for-vagueness doctrine has nonconstitutional roots in the common-law practice of the judiciary to refuse enforce- ment to legislative acts deemed too uncertain to be applied. Aigler, Legislation in Vague or General Terms, 21 Mica. L. Rxv. 831 (1923); Note, Constitutional Law, Void for Vagueness: An Escape from Statutory Interpretation, 23 IND. LJ. 272 (1948). Compare GELLHORN, ADMINISTRATIVE LAW 160 (2d ed. 1947). Numerous federal cases decided before the turn of the twentieth century which treat vagueness as a problem of general criminal law not referable to any particular constitutional prescription bear this thesis out. See, e.g., United States v. Brewer, 139 U.S. 278 (1891) ; Tozer v. United States, 52 Fed. 917 (Brewer, Circuit Justice, 1892). More recent examples may be found of the Supreme Court's simply refusing to apply a federal statute whose terms it found incomprehensible, without seeking in the Bill of Rights authority to justify its refusal. United- States v. Evans, 333 U.S. 483 (1948). Obviously, though, Supreme Court review of state criminal administration, which has been the most significant sphere of operation of the void-for-vagueness doctrine, cannot be supported on principles deriving directly from natural law or the jus gentium; whatever its initial origin, the doctrine must in these cases find its present foundation in the fourteenth amendment. This Note will concern itself exclusively with vagueness cases in the Supreme Court of the United States.

For general discussions of the doctrine, see Collings, Unconstitutional Uncer- tainty--An Appraisal, 40 CORNELL L.Q. 195 (1955) ; Note, Due Process Requirements of Definiteness in Statutes, 62 HARv. L. REv. 77 (1948). The source of a consti- tutional requirement of certainty is somewhat obscure. There are indications that the Court has on occasion tended to associate that doctrine with the sixth amend- ment's command that a criminal accused "be informed of the nature and cause of the accusation." See Yu Cong Eng v. Trinidad, 271 U.S. 500, 518 (1926); Mahler v. Eby, 264 U.S. 32, 41 (1924); United States v. L. Cohen Grocery Co., 255 U.S. 81, 89 (1921). But inasmuch as state criminal convictions have been reversed on void-for- vagueness grounds despite very specific indictments, this ground is at best very ques- tionable. See Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939) ; Herndon v. Lowry, 301 U.S. 242 (1937); Collings, .upra at 204; Comment, Legislation-Requirement of Definiteness in Statutory Standards, 53 Mlcii. L. Rxv. 264, 269 n.19 (1954). As regards federal statutes, a separation-of-powers notion has sometimes been invoked, predicated upon the proposition that it is improper for Congress to pass the law- making job to the judiciary. James v. Bowman, 190 U.S. 127 (1903); Trade-Mark Cases, 100 U.S. 82 (1879) ; United States v. Reese, 92 U.S. 214 (1875). An analogy between void-for-vagueness doctrine and the common-law principle of nonenforcement of incomprehensible statutes has already been remarked, note 2 supra, and the further analogy to the common-law canon of strict construction of penal statutes is evident. See, e.g., McBoyle v. United States, 283 U.S. 25 (1931). See also Quarles, Some Statutory Construction Problems and Approaches in Crin- inal Law, 3 VAxn. L. REv. 531, 532, 539 (1950). The most articulate modem con- ception of the doctrine as a command of due process stresses two aspects: fair warn- ing to the potential criminal offender, see Mr. Justice Frankfurter, dissenting, in Winters v. New York, 333 U.S. 507, 524 (1948); and standards sufficiently precise to guide the court and jury in determining whether a crime has been made out, see Mr. Justice Roberts, dissenting, in Screws v. United States, 325 U.S. 91, 151-52, 154 (1945). See also Scott, Constitutional Limitations on Substantive Criminal Law, 29 Rocry MT. L. REv. 275 (1957).