A Plague of Vagueness
Just when you're thinking all hope is lost, along comes the "void-for-vagueness doctrine," invoked this past week by the Supreme Court to restrict a hopelessly vague law. If our era needs a bumper sticker, this is it: Void for Vagueness. Paste it on the 2,000-plus pages of the new ObamaCare law, paste it on the 2,000 pages of the floundering financial regulation bill. Hand it out in front of Elena Kagan's confirmation hearings. Heck, chisel it on the facade of the U.S. Capitol. But my enthusiasm is racing ahead of the story.</br></br>In 2006, the most hated man in America was probably Jeff Skilling, who once sat atop Enron, perhaps the most hated corporate name in all American history. This heap of unpopularity notwithstanding, the Supreme Court said last week the government wrongly prosecuted the abominated Jeff Skilling under something called the "honest services fraud" law. The Court ruled -- unanimously -- that the law was, in a word, too "vague."</br></br>Here is the classic description of the void-for-vagueness doctrine from Justice George Sutherland in 1926: "a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning . . . violates the first essential of due process of law."</br></br>That any such common-sense rule still exists in law, politics or life is a wonder.</br></br>Strictly, the vagueness test applies only to penal law, but in a better world would it not also apply to much else in public life? The world was simpler in 1926.