Daniel B. Rice * | 23.5 | Article | Citation: Daniel B. Rice, Reforming Variable Vagueness, 23 U. Pa. J. Const. L. 960 (2021).

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Like much of constitutional law, the Supreme Court’s void-for-vagueness doctrine employs a system of tiered scrutiny. This decades-old framework imposes differential demands of clarity, depending on the type of enactment under review. But the distinctive workings of variable vagueness remain largely obscure to courts and scholars alike. This Article seeks to illuminate this integral facet of constitutional litigation. My comprehensive study of tiered vagueness reveals an enterprise awash with fluidity. By articulating such a raw and complex decisional structure—and failing to police its development in the ensuing years—the Court has unsettled a doctrine whose entire purpose is to maximize legal clarity. This Article lays bare the resulting methodological rot and charts a path toward doctrinal reconstruction.

The present variability framework has revealed itself to be little more than a taxonomic misadventure, relying as it does on crude and equivocal proxy tests. Nor has the Court provided any guidance on how the canonical variability factors interact. In addition, the framework’s non-exhaustive quality has enabled courts to spin off novel low-scrutiny contexts—ones that other decisions have deemed flatly insusceptible to vagueness challenges. And the current system invites courts to issue sweeping constitutional pronouncements for the sole purpose of choosing a case-specific level of scrutiny. I propose a drastically simplified model that focuses directly on the severity of applicable penalties. Having selected a presumptive level of scrutiny on this basis, courts should then tailor the “ordinary intelligence” inquiry to account for any pertinent attributes shared by the regulated class—for example, children’s diminished legal acumen.

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*Visiting Assistant Professor, Duke University School of Law. Many thanks to Sara Beale, Jake Charles, Richard Fallon, Joel Johnson, and Nic Riley for insightful feedback.