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For more than 125 years, the Supreme Court has evaluated defendants' claims that criminal statutes are unconstitutionally vague,1 developing a doctrine hailed as "among the most important guarantees of liberty under law."2 The Court, however, has only occasionally provided a thorough explanation of the reasoning behind that doctrine.3 The Court has catalogued the defenses the government might raise to a vagueness challenge even more rarely.4 Scholars, too, have been relatively quiet. Since Professor Amsterdam's student note on the subject nearly forty-five years ago,5 commentators have discussed vagueness primarily either as it relates to other doctrines6 or as it applies to specific types of statutes.7 By examining vagueness doctrine in its own right and across its many applications, this Article attempts to fill the doctrinal void the Court and commentators have left. It also hazards some views on the merits of various elements of the doctrine.
Vagueness doctrine is significant in part because of the explosive social and political debates in which it has arisen. Early in the 20th century, for example, companies raised vagueness challenges to the Sherman Act and its state counterparts.8 After World War II, the Court applied vagueness doctrine to statutes targeting Communists9 and establishing loyalty oaths.10 Later, civil rights activists11 and protesters against the war in Vietnam12 used vagueness arguments to challenge their arrests during demonstrations. Vagueness challenges have been raised against statutes targeting abortion providers13 as well as against statutes and injunctions targeting abortion protestors.14
Delineating the exact contours of vagueness doctrine is especially important because the Supreme Court has often issued sweeping and contradictory statements on the subject. The Court has often noted that criminal statutes are subject to stricter vagueness analysis than civil statutes.15 Subject to an even stricter standard are criminal statutes that reach expression protected by the First Amendment,16 any other constitutional right,17 or any "fundamental right."18 Four justices have suggested that statutes creating new crimes also require special precision.19
At the same time, the Court has often-and with a sheen of eloquence-described the limits of the vagueness prohibition. The most famous description was Justice Holmes's:
"[T]he law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his...