Vagueness as Impossibility

The void-for-vagueness doctrine dictates that unduly vague penal statutes will be considered void based on due process principles. The U.S. Supreme Court has grounded the doctrine in two rationales. First, vague penal statutes fail to inform the ordinary person of what is proscribed, thereby violating an essential aspect of due process: the requirement of fair notice. Second, vague penal statutes violate separation-of-powers and rule-of-law principles inherent in due process by delegating legislative authority to other actors in the criminal justice system: police, prosecutors, judges, and juries. The constitutional legitimacy of the void-for-vagueness doctrine has been recently called into question by Justice Thomas, who has suggested that the doctrine has little connection to constitutional text or history, and is akin to the much-maligned doctrine of substantive due process. The doctrine also suffers from a number of other defects. First, the Supreme Court, in over a century of addressing vagueness challenges, has failed to provide an intelligible standard for identifying unconstitutionally vague statutes. In addition, it appears arbitrary to deem vague laws unconstitutional when non-vague statutes, including but not limited to ambiguous ones, can also fail to provide notice for potential wrongdoers and delegate excessive legislative power to courts and prosecutors. Furthermore, the Court’s jurisprudence embraces an inherent contradiction: it permits courts and executive agencies to save otherwise vague statutes through limiting constructions, even though excessive delegation to those institutions is one of the purported evils of vague statutes. Finally, the Court has held that a scienter requirement for criminal liability can also save an otherwise vague statute, despite the fact that scienter typically refers to knowledge of facts that make one’s conduct illegal, not knowledge that one’s conduct falls within the law’s proscription. Both clarity and constitutional legitimacy can be infused into this area by shedding the rhetoric of vagueness and instead thinking of the problem as impossibility of compliance. Where it is difficult to ascertain what the law requires it is sometimes, though not always, impossible to comply. And a basic element of due process recognized by Lord Edward Coke in Bonham’s Case over four centuries ago is that the law cannot compel the impossible. A close look at the statutes that the Supreme Court has declared to be vague over the past century reveals that they generally share one of two defects: they require an actor to conform his conduct either to unknowable objective facts or to unascertainable normative standards. Such statutes violate Lord Coke’s ancient dictum by requiring that persons perform the impossible. This way of reframing vagueness as impossibility not only provides a firmer constitutional footing for some of the Court’s precedents but also provides a guide for future cases. While close cases will still arise, recasting vagueness as impossibility in many cases will help both litigants and courts by reframing the question as whether the statute at issue essentially requires that the actor perform the impossible.