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Professor Joel Johnson, "Vagueness and Federal-State Relations" -- University of Chicago Law Review (forthcoming)

Professor Joel S. Johnson's article, "Vagueness and Federal-State Relations," (SSRN) will be published in the University of Chicago Law Review (forthcoming 2023).  The article considers the distinction between federal and state law in analyzing Supreme Court void-for-vagueness decisions. 

Abstract of "Vagueness and Federal-State Relations"

The void-for-vagueness concept is indefinite, and the way the Supreme Court articulates the doctrine exacerbates the problem. In addition, Justice Thomas has recently questioned the vagueness doctrine’s legitimacy in light of its late emergence as a constitutional doctrine. This article aims to clarify the doctrine’s content and defend its historical pedigree by drawing attention to a fundamental, yet under-explored, aspect of the Supreme Court’s vagueness decisions—that vagueness analysis significantly depends on whether the law at issue is a federal or state law. That distinction is simple, but it has considerable explanatory power.

As an historical matter, the federal-state distinction reveals that the constitutional doctrine emerged in the late-nineteenth century in response to two simultaneous changes in the legal landscape—first, the availability of Supreme Court due process review of state penal statutes under the Fourteenth Amendment and, second, a significant shift in how state courts construed those statutes.

As a doctrinal matter, the federal-state distinction divides the Court’s decisions into two groups with predominately separate concerns. It reveals that separation-of-powers concerns primarily motivate the Court’s vagueness decisions involving federal laws, while federalism concerns are the driving force in its vagueness decisions involving state laws. In the vast majority of federal-law cases, the Court engages in vagueness avoidance—narrowly construing the federal law to avoid constitutional vagueness concerns. In state-law cases, by contrast, the Court is bound by any pre-existing state-court construction of the law, however broad and indefinite it may be. Vagueness analysis in state-law cases can thus largely be understood as a due process limitation on judicial construction.

Proper recognition of the federal-state distinction would result in fewer vagueness cases that reach the Supreme Court and more criminal laws that are narrowly construed. That would promote the rule of law by increasing the precision of criminal laws and reducing the risk of arbitrary enforcement—the very goals the vagueness doctrine seeks to achieve.