Connally v. General Const. Co., 269 U.S.
Commentary by Jon Roland
This is perhaps the key case that establishes the principle that a
statute may be unconstitutional because void for vagueness. It is unfortunate
that it is not successfully invoked more often, because if its correct doctrine
were uniformly applied, the majority of criminal legislation, federal, state,
and local, would have to be struck down.
It is useful to examine the question of specificity in legislation,
especially criminal legislation. Historically, in English law, "crime" was not
defined by statutes, for the most part, but by court precedents. There was, in
effect, a kind of general unwritten "statute": Crime is punishable by death
or lesser penalties. What was crime, and how it should be punished, was
left to each court and jury. Over time, standards emerged for what were crimes
and the appropriate penalties for each, but these remained common law
crimes. All a reasonable person had as a guide to conduct was general
knowledge of what kinds of actions had been considered crimes by courts in the
past, but no one could plead that such guidance was too uncertain to be the
just basis for penalties such as death or imprisonment.
As I have argued elsewhere, the main reason for the emergence of the due
process standard of unanimous verdict by a jury of twelve was that such a
standard made it likely that a charge which less than 94% of the community
considered to be a crime would bring a verdict of not guilty. That it also made
it likely that an acquittal would result if less than 94% of the community
considered the evidence to constitute proof beyond a reasonable doubt is also
important, but in an era when crimes were common law and not statutory, the
former was more important, and now that crimes are statutory, but often
uncertain, the former reason is no less important.
The general trend, driven by decisions such as this one, has been toward
greater specificity, but there are notable lapses. There is also injustice
resulting from poorly worded specificity, as when it results in prosecutions
for technical violations of the words of a statute when no harm has actually
occurred, and when no criminal intent is involved. We have also seen the trend
toward writing general statutes containing vague language, and leaving it to
administrative agencies to issue "regulations" that are more specific, and that
are intended to govern the behavior of members of the public who are not
government agents. Increased specificity is usually a change in semantic
content, and the issuance of such regulations constitutes a violation of the
prohibition on the delegation of legislative power implicit in
Art. I Sec. 1 of the Constitution.
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