University of Chicago Law Review

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For over a hundred years, the Supreme Court has struggled to articulate a coherent test for analyzing constitutional challenges based on vagueness. The current formulation of the vagueness test is rooted in due process principles and calls for invalidation of laws when they either (1) fail to “give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden” by the law, or (2) encourage “arbitrary arrests and convictions.” Certain aspects of this test suggest that the separation of powers is relevant to the analysis. Nevertheless, it is currently unclear what role this constitutional protection plays.

Recent Supreme Court decisions highlight the lack of guidance that the current due process test provides. This Comment “clarifies” vagueness by analyzing the constitutional purposes of the doctrine and proposing a framework that produces more consistent and predictable results. In particular, this Comment analyzes how due process and separation-of-powers considerations should inform each prong of the modern vagueness test. Borrowing from elements of originalist as well as legalrealist scholarship, the proposed framework, entitled the “Structure and Rights Approach,” sets forth a test that reinforces the symbolic importance of both constitutional protections while strengthening the practical application of the test.

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