Connally v. General Const. Co., 269 U.S. 385 (1926)

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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