Note

The Common Law of Interpretation

Courts and commentators have claimed that there is no methodological stare decisis. That is, the Supreme Court’s decision to use purposivism or textualism to interpret a legal text in one case is not binding in future cases. While a contrarian strain of scholars has argued that judicial decisions about interpretation should serve as controlling authority in later cases, critics fear that this approach would tie the hands of future courts too tightly.

However, this Note argues that the Supreme Court’s directions about how to interpret legal texts already have a soft and salutary authoritative force. It does so, first, by reconceptualizing so-called “methodological precedent.” Those who argue that interpretive decisions are not binding are led astray by the assumption that methodological stare decisis would look like a categorical commandment, such as: “Thou shalt not consult legislative history.” A more modest vision of methodological precedent is a kind of common law: that is, a collected series of smaller decisions converging on a set of norms for interpreting legal texts. Different norms might be settled to different degrees at different times. But as certain methods become accepted in the case law, even opponents may employ them, or feel that they have some constraining force. This kind of case-by-case development is already happening (albeit imperfectly). It has both horizontal and vertical effects, causing judges to adopt specific interpretive approaches or engage in specific modes of analysis. Additionally, this methodological common law is normatively desirable because it balances goals of stability and predictability while respecting the value of interpretive pluralism.

Introduction

The U.S. Supreme Court is in the business of determining the meaning of legal texts.1 1.Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”).Show More It should be no surprise, then, that many of the pages in the U.S. Reports are devoted to communicating the Court’s views on the proper methods of interpretation. Some of these statements are general and trans-substantive, like the declaration, “Today, our statutory interpretation cases almost always start with a careful consideration of the text.”2 2.Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2337 (2021).Show More Some are specific to the kind of legal directive, such as the principle that “remedial statutes should be liberally construed.”3 3.Peyton v. Rowe, 391 U.S. 54, 65 (1968).Show More Sometimes the Court articulates a canon of construction that is triggered by a particular context, such as the rule that “[i]mplications from statutory text or legislative history are not sufficient to repeal habeas jurisdiction.”4 4.Immigr. Naturalization Serv. v. St. Cyr, 533 U.S. 289, 299 (2001).Show More

But what is the legal status of these interpretive directions? For many years, judges and scholars have agreed there is no such thing as “methodological stare decisis.”5 5.See, e.g., Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2144 (2002) (“[T]he Justices do not seem to treat methodology as part of the holding [of a case].”); Jonathan R. Siegel, The Polymorphic Principle and the Judicial Role in Statutory Interpretation, 84 Tex. L. Rev. 339, 389 (2005) (“[S]tare decisis effect attaches to the ultimate holding . . . but not to general methodological pronouncements, no matter how apparently firm.”); Stephen M. Rich, A Matter of Perspective: Textualism, Stare Decisis, and Federal Employment Discrimination Law, 87 S. Cal. L. Rev. 1197, 1197 (2014) (“When the Supreme Court rules on matters of statutory interpretation, it does not establish ‘methodological precedents.’” (quoting Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine, 120 Yale L.J. 1898, 1902 (2011))); B & B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 167 n.4 (2015) (Thomas, J., dissenting) (“[N]o principle of stare decisis requires us to extend a tool of statutory interpretation from one statute to another without first considering whether it is appropriate for that statute.”).Show More No Supreme Court majority opinion purports to require that future justices be textualists or purposivists. Nor does one majority’s decision to use a particular extrinsic source (like dictionaries or drafting history) seem to mean that future courts must do the same. Thus, while a given case may stand for any number of legal propositions, each court supposedly writes on a blank methodological slate.

But this consensus may rest on eroding foundations. First, the wholesale exclusion of interpretive premises from a case’s “holding” has always been in tension with the Supreme Court’s view that the “portions of the opinion necessary to [reach the] result” are binding on future courts.6 6.Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996). Although, what makes a part of an opinion “necessary” to the result and what kinds of propositions are “necessary” is open to interpretation.Show More The fact that the Supreme Court’s conclusions about legal interpretation are treated differently than its other outcome-determinative premises has been assumed more often than it has been defended. Second, an emerging wave of scholars has suggested that the Court’s statements about methodology should (and perhaps do) have some precedential effect.7 7.E.g., Sydney Foster, Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology?, 96 Geo. L.J. 1863, 1870 (2008) (“[A]s a matter of policy, courts should give extra-strong stare decisis effect to doctrines of statutory interpretation.”); Jordan Wilder Connors, Note, Treating Like Subdecisions Alike: The Scope of Stare Decisis as Applied to Judicial Methodology, 108 Colum. L. Rev. 681, 684 (2008) (terming decisions about judicial methodology “subdecisions” and arguing that “the purposes behind traditional stare decisis suggest that the appropriate reform is to extend the scope of stare decisis to statutory interpretation subdecisions”); Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L.J. 1750, 1754, 1848 (2010) [hereinafter Gluck, States as Laboratories] (arguing that methodological stare decisis “appears to be a common feature of some states’ statutory case law” and is therefore possible and potentially beneficial); Grace E. Hart, Comment, Methodological Stare Decisis and Intersystemic Statutory Interpretation in the Choice-of-Law Context, 124 Yale L.J. 1825, 1826 (2015) (arguing that statutory interpretation decisions should be treated as substantive law to help govern choice-of-law disputes); Aaron-Andrew P. Bruhl, Eager to Follow: Methodological Precedent in Statutory Interpretation, 99 N.C. L. Rev. 101, 106 (2020) (arguing primarily that lower courts follow the Supreme Court’s lead on methods of statutory interpretation).Show More They contend that rule of law values would be enhanced by clarity about how courts will approach difficult questions of statutory interpretation.

But these arguments in favor of methodological stare decisis have provoked strong criticism.8 8.See, e.g., Evan J. Criddle & Glen Staszewski, Against Methodological Stare Decisis, 102 Geo. L.J. 1573, 1591 (2014) (“[I]t would be severely problematic for federal courts to attempt to freeze interpretive rules into place by applying stare decisis.”); Chad M. Oldfather, Methodological Stare Decisis and Constitutional Interpretation, in Precedent in the United States Supreme Court 135, 154 (Christopher J. Peters ed., 2013) (“[Adopting] a regime of methodological stare decisis . . . would for some period of time imperil rather than foster stability.”).Show More As a descriptive matter, at least some judges may not feel that they are bound by the Supreme Court’s prior methodological decisions.9 9.See, e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2444 (2019) (Gorsuch, J., concurring in the judgment) (“[W]e do not regard statements in our opinions about . . . generally applicable interpretive methods . . . as binding future Justices with the full force of horizontal stare decisis.”).Show More Indeed, it is hard for lawyers to believe that the Court’s interpretive views are “binding” in any sense when they have witnessed decades of intractable disagreement over the proper methods of statutory and constitutional interpretation.10 10.Gluck, States as Laboratories, supra note 7, at 1753–54.Show More As a normative matter, judges are likely to chafe at the suggestion that their deeply held convictions about interpretation are trumped by old judicial decisions or long-dead members of their court.11 11.See Randy J. Kozel, Statutory Interpretation, Administrative Deference, and the Law of Stare Decisis, 97 Tex. L. Rev. 1125, 1149 (2019) (suggesting that a jurist would likely protest if “faced with the prospect of subordinating her individual view” and “urged to apply an interpretive methodology”).Show More

This Note pushes back against both of those objections. First, it argues that there is already a soft system of methodological precedent at the Supreme Court and in the lower federal courts. Both critics and detractors of the idea of methodological precedent generally assume that, if such precedent existed, the Supreme Court would issue (and future courts would follow) explicit and broad legal directives, like: “legislative history is a permissible source of evidence for resolving statutory ambiguity,” or “the Constitution should be interpreted according to its original public meaning.”12 12.See notes 57–59 and accompanying text.Show More But the absence of such categorical holdings does not mean that the interpretive statements that the Court does issue are not authoritative. Instead, the Supreme Court’s back-and-forth about interpretation operates as a common law of methods, where individual cases elucidate specific norms and facilitate consensus. It can take multiple cases and many decades for a methodological dispute to be “settled,” and different areas of the law are settled to different degrees. But as interpretive norms are enshrined in case law, they exert an authoritative force on the Supreme Court and lower courts in a way that mimics the effect of precedent. And second, despite the fears of commentators, this system is actually beneficial. In fact, a system of gradual methodological common law achieves many of the rule of law goals underlying stare decisis while still allowing room for interpretive pluralism.

The argument proceeds in four Parts. Part I briefly explores the concept of “precedent.” Part II proposes a common law model of interpretive precedent where individual cases serve as minor but meaningful authorities about the proper way to interpret legal texts. Over time, debates about interpretive methods can be settled through accumulated decisions and judicial practice, even without the Supreme Court explicitly dictating a comprehensive philosophy of interpretation. Part III is descriptive, arguing that such a common law of interpretive methods already exists. Part IV is a normative defense of this status quo.

  1. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”). ↑
  2. Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2337 (2021). ↑
  3. Peyton v. Rowe, 391 U.S. 54, 65 (1968). ↑
  4. Immigr. Naturalization Serv. v. St. Cyr, 533 U.S. 289, 299 (2001). ↑
  5. See, e.g., Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2144 (2002) (“[T]he Justices do not seem to treat methodology as part of the holding [of a case].”); Jonathan R. Siegel, The Polymorphic Principle and the Judicial Role in Statutory Interpretation, 84 Tex. L. Rev. 339, 389 (2005) (“[S]tare decisis effect attaches to the ultimate holding . . . but not to general methodological pronouncements, no matter how apparently firm.”); Stephen M. Rich, A Matter of Perspective: Textualism, Stare Decisis, and Federal Employment Discrimination Law, 87 S. Cal. L. Rev. 1197, 1197 (2014) (“When the Supreme Court rules on matters of statutory interpretation, it does not establish ‘methodological precedents.’” (quoting Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie Doctrine, 120 Yale L.J. 1898, 1902 (2011))); B & B Hardware, Inc. v. Hargis Indus., Inc., 575 U.S. 138, 167 n.4 (2015) (Thomas, J., dissenting) (“[N]o principle of stare decisis requires us to extend a tool of statutory interpretation from one statute to another without first considering whether it is appropriate for that statute.”). ↑
  6. Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996). Although, what makes a part of an opinion “necessary” to the result and what kinds of propositions are “necessary” is open to interpretation. ↑
  7. E.g., Sydney Foster, Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology?, 96 Geo. L.J. 1863, 1870 (2008) (“[A]s a matter of policy, courts should give extra-strong stare decisis effect to doctrines of statutory interpretation.”); Jordan Wilder Connors, Note, Treating Like Subdecisions Alike: The Scope of Stare Decisis as Applied to Judicial Methodology, 108 Colum. L. Rev. 681, 684 (2008) (terming decisions about judicial methodology “subdecisions” and arguing that “the purposes behind traditional stare decisis suggest that the appropriate reform is to extend the scope of stare decisis to statutory interpretation subdecisions”); Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L.J. 1750, 1754, 1848 (2010) [hereinafter Gluck, States as Laboratories] (arguing that methodological stare decisis “appears to be a common feature of some states’ statutory case law” and is therefore possible and potentially beneficial); Grace E. Hart, Comment, Methodological Stare Decisis and Intersystemic Statutory Interpretation in the Choice-of-Law Context, 124 Yale L.J. 1825, 1826 (2015) (arguing that statutory interpretation decisions should be treated as substantive law to help govern choice-of-law disputes); Aaron-Andrew P. Bruhl, Eager to Follow: Methodological Precedent in Statutory Interpretation, 99 N.C. L. Rev. 101, 106 (2020) (arguing primarily that lower courts follow the Supreme Court’s lead on methods of statutory interpretation). ↑
  8. See, e.g., Evan J. Criddle & Glen Staszewski, Against Methodological Stare Decisis, 102 Geo. L.J. 1573, 1591 (2014) (“[I]t would be severely problematic for federal courts to attempt to freeze interpretive rules into place by applying stare decisis.”); Chad M. Oldfather, Methodological Stare Decisis and Constitutional Interpretation, in Precedent in the United States Supreme Court 135, 154 (Christopher J. Peters ed., 2013) (“[Adopting] a regime of methodological stare decisis . . . would for some period of time imperil rather than foster stability.”). ↑
  9. See, e.g., Kisor v. Wilkie, 139 S. Ct. 2400, 2444 (2019) (Gorsuch, J., concurring in the judgment) (“[W]e do not regard statements in our opinions about . . . generally applicable interpretive methods . . . as binding future Justices with the full force of horizontal stare decisis.”). ↑
  10. Gluck, States as Laboratories, supra note 7, at 1753–54. ↑
  11. See Randy J. Kozel, Statutory Interpretation, Administrative Deference, and the Law of Stare Decisis, 97 Tex. L. Rev. 1125, 1149 (2019) (suggesting that a jurist would likely protest if “faced with the prospect of subordinating her individual view” and “urged to apply an interpretive methodology”). ↑

  12. See notes 57–59 and accompanying text. ↑

Permission to Destroy: How a Historical Understanding of Property Rights can Reign in Consent Searches

Consent searches are by far the most common tool to circumvent the Fourth Amendment’s warrant requirement. Though police officers have the property owner’s permission, the searches they conduct are not always harmless. Without probable cause or reasonable suspicion, consent searches have justified officers’ destruction of car parts, electronics, and shoes. Are officers allowed to damage property after receiving consent to search a person’s belongings? In some jurisdictions, a consent search becomes unreasonable when officers destroy property, entitling the owner to money damages in civil litigation or the exclusion of evidence in criminal prosecutions. In other jurisdictions, an owner’s consent means she has forfeited the right to have her property stay intact. This Note’s first contribution is identifying and examining this consequential circuit split.

To resolve Fourth Amendment ambiguities, the Supreme Court has increasingly turned to the common law in place at the Founding. The mishandling and destruction of colonists’ personal property by British soldiers acting pursuant to general warrants and writs of assistance helped to spur the Revolutionary War. This Note’s second contribution applies Founding-era evidence to consent search doctrine. By drawing on colonial records, this Note offers an originalist argument for restraining consent searches.

Introduction

Just before daybreak on March 31, 2011, ten law enforcement officials arrived at the Chicago apartment where Jai Crutcher and Christopher Colbert, brothers by adoption, lived with their families.1 1.Colbert v. City of Chicago, 851 F.3d 649, 652 (7th Cir. 2017); id. at 661 (Hamilton, J., concurring in part and dissenting in part).Show More The officers told Crutcher they were there to conduct a parole check, and Crutcher consented to the search.2 2.Id. at 652 & n.1 (majority opinion) (“The terms of Crutcher’s release required him to ‘refrain from possessing a firearm or other dangerous weapon,’ ‘consent to a search of [his] person, property, or residence under [his] control,’ and ‘comply with any additional conditions the Prisoner Review Board has or may set as a condition of [his] parole or mandatory supervised release including, but not limited to: ELECTRONIC MONITORING FOR DURATION.’” (alterations in original)).Show More As the police moved through the house, their search quickly turned destructive. In testimony that Judge David Hamilton of the U.S. Court of Appeals for the Seventh Circuit called “disturbing,” the brothers described “the fright of their children as officers broke holes in the walls, cut open a couch, [and] tore doors off of cabinets.”3 3.Id. at 661 (Hamilton, J., dissenting in part). Both the majority and dissenting opinions recounted the facts in the light most favorable to the plaintiffs because the case was on appeal from a grant of summary judgment for the defendants. Id. at 654 (majority opinion); id. at 661 (Hamilton, J., dissenting in part). Therefore, the account of property damage recited here came from the plaintiffs’ perspective. In the officers’ depositions, they “claimed they did not remember many of the events of March 31, 2011.” Id. at 662.Show More In total, the officers damaged, dismantled, or destroyed: a weight bench, clothing, the basement door, the stairs, bedroom dressers, an electronic tablet, a stereo, a television, photographs of Crutcher’s grandmother, wall insulation, a kitchen countertop, and shelf hinges.4 4.Id. at 661, n.1 (Hamilton, J., dissenting in part); id. at 652–53 (majority opinion).Show More The officers tracked dog feces through the house during their search.5 5.Id. at 652 (majority opinion).Show More One officer allegedly “unholstered his firearm and threatened to shoot Crutcher’s six-week-old puppy before leaving the dog outside, where it was lost.”6 6.Id. at 661 (Hamilton, J., dissenting in part).Show More Crutcher and Colbert subsequently brought a § 1983 civil rights suit against the City of Chicago and four individual officers for violating their Fourth Amendment rights.7 7.Id. at 653–54, 656 (majority opinion).Show More The district court dismissed the complaint, the Seventh Circuit affirmed, and the brothers were left to foot the bill.8 8.Id. at 654, 661. Most courts have held that harms like these do not violate the Takings Clause or related provisions of state constitutions, making this Note’s proposal all the more important. See Lech v. Jackson, 791 Fed. App’x. 711, 719 (10th Cir. 2019); see also Maureen E. Brady, The Damagings Clauses, 104 Va. L. Rev. 341, 394–95 (2018) (describing several instances in which the government compensated property owners for police-inflicted damage).Show More

Whether, or how, property damage should affect the reasonableness of a consent search has divided the lower courts. In some jurisdictions, property damage has no effect on the legality of a consent search or potential remedies. In other jurisdictions, when police damage property, a search that began with the owner’s permission becomes per se unreasonable. In still others, officers may damage property so long as they do not render it unusable. Drawing on Founding-era evidence and the common law, this Note argues that mishandling and destroying property during consent searches would have been anathema to the Constitution’s Framers. This Note is the first to use the Fourth Amendment’s history to answer whether consent searches are constitutional when they involve property damage. Academics and advocates have frequently attacked the lax “voluntariness” requirement of consent searches, and they rightly note that many individuals agree to invasive searches without knowing they have the right to refuse.9 9.See, e.g., James C. McGlinchy, Note, “Was that a Yes or a No?” Reviewing Voluntariness in Consent Searches, 104 Va. L. Rev. 301, 303 (2018); Gerard E. Lynch, Why Not a Miranda for Searches?, 5 Ohio St. J. Crim. L. 233, 237, 245 (2007); Marcy Strauss, Reconstructing Consent, 92 J. Crim. L. & Criminology 211, 212 (2001); Oren Bar-Gill & Barry Friedman, Taking Warrants Seriously, 106 Nw. U. L. Rev. 1609, 1661–62 (2012).Show More But the scope of consent searches is just as important and is more likely to be taken up by the Supreme Court.10 10.While the Supreme Court has explicitly rejected a requirement that consent be given knowingly or intelligently, the Court has said relatively little about the scope of consent searches. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). In addition, Justices on the Court today often find government overreach when private property is concerned. See, e.g., Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2072 (2021) (holding that a California regulation giving union organizers access to farm workers constitutes a per se physical taking); Ala. Ass’n of Realtors v. Dep’t of Health and Human Servs., 141 S. Ct. 2485, 2489 (2021) (per curiam) (concluding that a federal eviction moratorium intruded on property owners’ right to exclude).Show More

Part I introduces consent searches, explaining their significance and situating them in Fourth Amendment doctrine. Part II describes how different circuits have addressed the question of property damage during consent searches and dissects their underlying reasoning. Part III uses Founding-era evidence to advocate limitations on consent searches. Part III also offers a workable test—one in accord with the primacy of property rights during the Founding—for identifying property damage that exceeds the scope of consent searches. Finally, Part IV anticipates and responds to objections.

  1. Colbert v. City of Chicago, 851 F.3d 649, 652 (7th Cir. 2017); id. at 661 (Hamilton, J., concurring in part and dissenting in part). ↑
  2. Id. at 652 & n.1 (majority opinion) (“The terms of Crutcher’s release required him to ‘refrain from possessing a firearm or other dangerous weapon,’ ‘consent to a search of [his] person, property, or residence under [his] control,’ and ‘comply with any additional conditions the Prisoner Review Board has or may set as a condition of [his] parole or mandatory supervised release including, but not limited to: ELECTRONIC MONITORING FOR DURATION.’” (alterations in original)). ↑
  3. Id. at 661 (Hamilton, J., dissenting in part). Both the majority and dissenting opinions recounted the facts in the light most favorable to the plaintiffs because the case was on appeal from a grant of summary judgment for the defendants. Id. at 654 (majority opinion); id. at 661 (Hamilton, J., dissenting in part). Therefore, the account of property damage recited here came from the plaintiffs’ perspective. In the officers’ depositions, they “claimed they did not remember many of the events of March 31, 2011.” Id. at 662. ↑
  4. Id. at 661, n.1 (Hamilton, J., dissenting in part); id. at 652–53 (majority opinion). ↑
  5. Id. at 652 (majority opinion). ↑
  6. Id. at 661 (Hamilton, J., dissenting in part). ↑
  7. Id. at 653–54, 656 (majority opinion). ↑
  8. Id. at 654, 661. Most courts have held that harms like these do not violate the Takings Clause or related provisions of state constitutions, making this Note’s proposal all the more important. See Lech v. Jackson, 791 Fed. App’x. 711, 719 (10th Cir. 2019); see also Maureen E. Brady, The Damagings Clauses, 104 Va. L. Rev. 341, 394–95 (2018) (describing several instances in which the government compensated property owners for police-inflicted damage). ↑
  9. See, e.g., James C. McGlinchy, Note, “Was that a Yes or a No?” Reviewing Voluntariness in Consent Searches, 104 Va. L. Rev. 301, 303 (2018); Gerard E. Lynch, Why Not a Miranda for Searches?, 5 Ohio St. J. Crim. L. 233, 237, 245 (2007); Marcy Strauss, Reconstructing Consent, 92 J. Crim. L. & Criminology 211, 212 (2001); Oren Bar-Gill & Barry Friedman, Taking Warrants Seriously, 106 Nw. U. L. Rev. 1609, 1661–62 (2012). ↑

  10. While the Supreme Court has explicitly rejected a requirement that consent be given knowingly or intelligently, the Court has said relatively little about the scope of consent searches. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). In addition, Justices on the Court today often find government overreach when private property is concerned. See, e.g., Cedar Point Nursery v. Hassid, 141 S. Ct. 2063, 2072 (2021) (holding that a California regulation giving union organizers access to farm workers constitutes a per se physical taking); Ala. Ass’n of Realtors v. Dep’t of Health and Human Servs., 141 S. Ct. 2485, 2489 (2021) (per curiam) (concluding that a federal eviction moratorium intruded on property owners’ right to exclude). ↑

Vagueness and Nondelegation

The void-for-vagueness doctrine and the nondelegation doctrine share an intuitive connection: when Congress drafts vague statutes, it delegates lawmaking authority to courts and the executive. In three recent cases, the Supreme Court gave expression to this link by speaking of the doctrines using nearly identical vocabulary. Notably, Justice Gorsuch suggested that as the nondelegation doctrine waned during the second half of the twentieth century, vagueness replaced it,—doing much of the doctrinal work that nondelegation would have done otherwise.

This Note tests that historical claim, and in doing so, offers two main contributions. First, it concludes that as a historical matter, Justice Gorsuch tells only part of the story. Although early vagueness doctrine in the late 1800s had strong streaks of nondelegation, vagueness doctrine of the post-New Deal era did not. The latter vagueness instead turned toward protecting individual rights and preventing racial discrimination by state and local governments. Here, nondelegation concerns were absent.

But the Roberts Court has rebooted the early vagueness doctrine that did indeed incorporate nondelegation. Modern vagueness cases thus resemble early vagueness cases. In these cases, absent are questions of individual rights, replaced by a focus on the separation of powers. In effect, there are two vagueness doctrines, one focused on individual rights and another centered around the separation of powers. This Note thus offers its second contribution: categorizing the Court’s vagueness cases and recognizing the categories for what they are.

“[O]nce we lift the veil of the void-for-vagueness doctrine, the revelations can be far reaching.”1 1.Risa L. Goluboff, Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights, 62 Stan. L. Rev. 1361, 1387 (2010).Show More

Introduction

Suppose Congress enacts a statute that reads as follows: “Any person engaging in morally blameworthy conduct or lacking good moral character shall be punished as provided by this Code.” Is this statute unconstitutional? If so, why? Is it because of the void-for-vagueness doctrine, under which vague criminal laws violate the Constitution’s due process protections? Or is it because of the nondelegation doctrine, under which Congress cannot delegate its Article I legislative power to the executive and judicial branches through unintelligible statutes?

Or is it both?

In three recent U.S. Supreme Court cases, decided within a year of each other, these two relatively dormant doctrines—vagueness and nondelegation—simultaneously reemerged. In United States v. Davis2 2.139 S. Ct. 2319, 2336 (2019).Show More and Sessions v. Dimaya,3 3.138 S. Ct. 1204, 1223 (2018).Show More the Court struck down provisions in the federal criminal code as void for vagueness, while in Gundy v. United States, the Court addressed a nondelegation challenge to Congress’s delegation of authority to the Attorney General.4 4.139 S. Ct. 2116, 2122 (2019).Show More

At first glance, vagueness and nondelegation appear more different than alike. The Court has located the nondelegation doctrine in the Constitution’s “Vesting Clauses”—the Article I, Article II, and Article III provisions which vest the legislative, executive, and judicial powers in their respective branches—while vagueness doctrine has its roots in fair notice concerns and the Due Process Clauses. Vagueness’s most prominent application has been in cases involving state and local vagrancy offenses and status crimes, while the nondelegation doctrine has been employed in largely conservative-libertarian projects aimed to rein in the ever-expanding administrative and regulatory state.

Despite these differences, the two doctrines share an intuitive connection: when legislatures draft vague statutes, they delegate lawmaking authority to other branches of government. The Court gave expression to this link in Dimaya, Davis, and Gundy, describing the two doctrines using starkly similar vocabulary and shedding light on their interrelatedness. In Dimaya, Justice Kagan referred to vagueness as the “corollary” of the separation of powers that undergirds the nondelegation doctrine.5 5.Dimaya, 138 S. Ct. at 1212.Show More In his Dimaya dissent, Justice Thomas noted that the “Court’s precedents have occasionally described the vagueness doctrine in terms of nondelegation.”6 6.Id.at 1248 (Thomas, J., dissenting).Show More Most notably, in Gundy, Justice Gorsuch argued that “most any challenge to a legislative delegation can be reframed as a vagueness complaint,” and that the Court’s “void-for-vagueness cases became much more common soon after the Court began relaxing its approach to legislative delegations.”7 7.Gundy, 139 S. Ct. at 2142 (Gorsuch, J., dissenting).Show More That is, as the Court backed away from using the nondelegation doctrine to police Congress’s delegation of its legislative power in the second half of the twentieth century, the Court began using vagueness to do the work that nondelegation would have done otherwise.

This Note picks up on the thread that Justice Gorsuch started in Gundy and explores the relationship between vagueness and nondelegation. In so doing, this Note offers two main contributions.

First, it concludes that as a historical matter, Justice Gorsuch’s claim about vagueness replacing nondelegation tells only part of the story. The Note looks to pre- and post-New Deal doctrinal development of both vagueness and nondelegation to conclude that while the doctrines have some overlap, Justice Gorsuch overstated their connection. The Court’s vagueness cases from the late 1800s, the early days of the doctrine, did indeed police legislative delegations. But the cases that came after 1937 did not. The Court instead began using vagueness to protect individual rights like free speech. It also wielded vagueness to protect racial minorities from invidious discrimination by state and local police. In these post-New Deal vagueness cases, federal nondelegation concerns were largely absent. This version of vagueness did not replace the nondelegation doctrine, which the Court largely discarded.

Still, the Roberts Court picked up where the early vagueness cases left off; nondelegation again entered the realm of vagueness. In modern vagueness cases, concerns of individual rights and free speech are absent. Also absent are issues of invidious racial discrimination. These cases instead emphasize the proper constitutional role of Congress, the executive, and the judiciary within the federal separation of powers. To the extent that the Court and Justice Gorsuch see an overlap between vagueness and nondelegation, it is this line of cases that they see.

In effect, there are two vagueness doctrines. One comprises the majority of the Court’s vagueness cases after the New Deal era, including the landmark case Papachristou v. City of Jacksonville. The second has its origins in the earliest vagueness cases. And although this latter doctrine subsided after 1937, the Court has revived it in recent cases like Dimaya and Davis.

This Note categorizes the Court’s vagueness cases into (1) Rights-Based Vagueness and (2) Structure-Based Vagueness. Although both categories of cases involve due process concerns, they diverge from there. Cases like Papachristou, and their emphasis on individual rights and equal protection, comprise Rights-Based Vagueness. In contrast, Structure-Based Vagueness is the vagueness that the Court employs in Dimaya, Davis, and Gundy. In these latter cases, the Court emphasizes nondelegation and the separation of powers. To the extent that vagueness and nondelegation converge, it is in the context of Structure-Based Vagueness. This Note thus offers its second contribution: categorizing the Court’s vagueness cases and recognizing the categories for what they are.

Recognizing Structure-Based Vagueness for what it is has important implications. Identifying this category adds analytical clarity to the literature on the intersection of vagueness and nondelegation, which to this point has remained cursory and underdeveloped. It further offers insight into how a vagueness doctrine that was previously wielded to address racial discrimination by local police has transformed into a vagueness doctrine that seemingly only has purchase in challenges to federal malum prohibitum crimes. This Note thus adds to the realist literature that views vagueness doctrine as a doctrinal makeweight, which can be reshaped to serve broader and unrelated judicial values and priorities.

Identifying Structure-Based Vagueness has practical consequences too. Structure-Based Vagueness offers common ground to criminal justice reformers and immigrant rights advocates on the one hand, and conservative-libertarians interested in curbing the power of the federal government on the other. By employing the rhetoric of separation of powers in their vagueness arguments, criminal justice reformers and immigrant rights advocates can win meaningful progressive victories from a Court enamored with nondelegation. Moreover, Structure-Based Vagueness offers a limiting principle to opponents of a more aggressive nondelegation doctrine. By tying Structure-Based Vagueness and its nondelegation component to their underlying rationales, skeptics of the nondelegation doctrine can cabin its application to only criminal and penal laws, reducing the potentially harmful impact that a more rigid doctrine would have on environmental, labor, and other economic regulations.

This Note proceeds in four Parts. Part I provides a brief summary of the vagueness and nondelegation doctrines and canvasses literature that addresses their intersection. It then summarizes the Court’s decisions in Dimaya, Davis, and Gundy and draws out Justice Gorsuch’s specific claim about the relationship between vagueness and nondelegation. Part II inspects the historical trajectory of both doctrines, beginning just before the Lochner era and ending with today’s Roberts Court. It uses this history to challenge Justice Gorsuch’s claim. Part III then categorizes vagueness into its two conceptions—Rights-Based Vagueness and Structure-Based Vagueness. Part IV explores the theory behind Structure-Based Vagueness and identifies future applications. A brief conclusion follows.

  1. Risa L. Goluboff, Dispatch from the Supreme Court Archives: Vagrancy, Abortion, and What the Links Between Them Reveal About the History of Fundamental Rights,
    62

    Stan. L. Rev.

    1361, 1387 (2010).

    ↑

  2. 139 S. Ct. 2319, 2336 (2019). ↑
  3. 138 S. Ct. 1204, 1223 (2018). ↑
  4. 139 S. Ct. 2116, 2122 (2019). ↑
  5. Dimaya, 138 S. Ct. at 1212. ↑
  6. Id. at 1248 (Thomas, J., dissenting). ↑

  7. Gundy, 139 S. Ct. at 2142 (Gorsuch, J., dissenting). ↑

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