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Notice and the New Deal.


The New Deal Supreme Court revised a well-known set of constitutional doctrines. Legal scholarship has principally focused on the changes that occurred in three areas--federalism, delegation, and economic liberty. This Article identifies a new and important fourth element of New Deal constitutionalism: a change in the constitutional doctrine of due process notice, the doctrine that specifies the minimum standards for constitutionally adequate notice of the law. The law of due process notice--which includes the doctrines of vagueness, retroactivity, and the rule of lenity--evolved dramatically over the course of the New Deal to permit lesser clarity and to tolerate more retroactivity. The upshot has been the near-total elimination of successful notice-based challenges other than in the limited context of First Amendment vagueness attacks.

Unlike the more famous doctrinal changes of this period, changes to due process notice doctrine were not obviously necessary to accommodate the New Deal legislative agenda, either as a matter of jurisprudence or as a matter of politics. Due process notice doctrine nonetheless underwent a radical transformation in this era, as the Court came to regard its broader shift toward deferring to legislative and executive policy decisions as requiring the relaxation of due process notice doctrine. The link forged between deference and notice had significant functional effects on the most important audience for the Court's notice jurisprudence--Congress. By loosening the strictures of due process notice doctrine, the Court lowered sharply the enactment costs of federal legislation and thereby facilitated its proliferation. This is a distinct, and hitherto unacknowledged, mechanism by which the Court in this period enhanced national power and encouraged the flourishing of the emerging administrative state.

Like much of the New Deal "settlement," the New Deal reformulation of due process notice doctrine is today the subject of ferment in the courts. Recognizing the New Deal roots of due process notice doctrine is critical for understanding these ongoing judicial debates--and for beginning the conceptual work of mapping the future shape of this vital cluster of doctrines.


I. The Facets of Due Process Notice Doctrine

II. The New Deal Reformulation of Due Process Notice

     A. Vagueness

        1. Facial Challenges

        2. Civil Economic Legislation

        3. Criminal Legislation

        B. Retroactivity

    C. The Rule of Lenity

    D. Summary

III. The Buffer's Significance

IV. The Buffer's Durability



It is an oft-told tale. In the latter half of the 1930s, with the country in the grip of the Great Depression, the Supreme Court reversed course on three constitutional issues of vital significance to President Roosevelt's legislative agenda for economic recovery. The Court abandoned the doctrine of liberty of contract, (1) it approved congressional delegations to federal regulatory agencies, (2) and it embraced an expansive view of Congress's legislative powers under Article I. (3) By thus reformulating the rights of individuals, of the federal government, and of the states, New Deal constitutionalism upended the existing architecture of American government and laid the groundwork for the subsequent flourishing of the administrative state . (4)

On the list of doctrinal changes that make up New Deal constitutionalism, the most famous entries are the revisions to the doctrines of economic due process, delegation, and federalism. (5) A longer version of the list espoused by some scholars also includes the New Deal Court's emerging solicitude for civil and political rights, (6) its approval of augmented presidential powers over foreign affairs, (7) and its shifting treatment of common-law sources, (8) But another significant change that also occurred in this period has gone unremarked by courts and commentators: a transformation in the constitutional law of due process notice.

Due process notice doctrine addresses a simple, core question: What degree of notice of the law is constitutionally required? This issue has recently received attention in the context of vagueness challenges and in immigration cases addressing the retroactive effects of legislative amendments. (9) All areas of law, however, rest upon the predicate assumption that some constitutionally adequate notice exists. (10) The doctrine is the constitutional expression of the Anglo-American view that secret law is the essence of tyranny. (11)

This Article takes as its vantage point the doctrine of due process notice and recounts the story of New Deal constitutional change from this vantage point. Adopting this perspective brings into view several important and linked doctrinal developments that have, until now, remained either obscure or unconnected. Vagueness doctrine, retroactivity, and the key methods of statutory interpretation that relate to due process notice all changed during this period, (12) and they all changed in the same way: to permit less clarity and predictability in the law.

Interestingly--and perhaps surprisingly, considering the wealth of scholarship on the era--this insight is novel. (13) Consider one much-discussed aspect of constitutional due process notice doctrine: the doctrine of vagueness. In prominent accounts of New Deal (14) constitutionalism, vagueness doctrine makes little or no appearance. Conversely, scholars writing about vagueness do not give prominence to how the doctrine evolved in the New Deal era. (15) Yet it was in the New Deal era that key elements of modern vagueness doctrine were developed.

Three important aspects of the modern law of vagueness were settled during the New Deal period. First, the Court tightened its standards for sustaining facial vagueness challenges to laws outside the First Amendment context. (16) Second, it started to treat civil economic laws as categorically subject to relaxed scrutiny for vagueness. (17) Third, with respect to criminal laws, the Court adopted the practice off treating mens rea requirements as a substitute for clarity in legislative language. (18)

Viewed separately or in combination, these principles worked a considerable change in the substance and procedure of vagueness challenges. But the notice jurisprudence of this period did more than merely transform vagueness. The Court changed its treatment of the rules pertaining to retroactivity, another doctrine that serves values of fair warning and notice. (19) Shifts of comparable heft occurred in the Court's application of the rule of lenity, a canon of statutory construction that likewise implicates notice. (20) In sum, while it famously used one aspect of vagueness doctrine to build a "buffer zone" of protection around the exercise of certain individual liberties, (21) the Court in this era also--less famously but no less critically--used the bulk of due process notice doctrine to create a "buffer zone" that would shield the exercise of government power from challenge by regulated individuals.

This reformulation of due process notice jurisprudence presents a puzzle. If the legislative agenda of the New Deal was going to go forward, certain changes in constitutional doctrine were inevitable. There had to be increased national power under the Commerce Clause. There had to be a generous understanding of congressional power to delegate. There had to be an erosion of constitutional protections for liberty of contract. In contrast, changes to due process notice doctrine have no self-evident connection to the fulfillment of the New Deal's institutional program.

Why, then, did due process notice doctrine change in this period? The timing of these doctrinal changes was not a coincidence. The Court's opinions reveal that the Justices debated how due process notice doctrine should be altered and ultimately came to embrace the view that a relaxed due process notice was a necessary component of the Court's larger project of establishing judicial deference to the political branches on matters of economic and social policy.

The forging of this link between notice and deference had notable consequences. By relaxing the constraints of due process notice doctrine, the Court sharply lowered the costs of enacting federal legislation and thus facilitated its proliferation. By thus boosting Congress's lawmaking capacity, the Court's reformulation of due process notice doctrine helped to pour the foundation upon which its coequal branches would build the modern regulatory state. The Article proceeds in four parts. Part I introduces the main features of due process notice doctrine. Part I! recounts how the Court altered central aspects of this doctrine during the New Deal in a manner that permitted less clarity in legislative language and became more tolerant of retroactive changes in legislative language. Part III sets out opinions that reflect the Court's rationale for these changes and then discusses the functional effects of the Court's reformulation of due process notice doctrine on the enactment costs of federal legislation. Part IV explains that the New Deal reformulation of due process notice, like much of the New Deal "settlement," is today under pressure. In several noteworthy recent opinions, and in both criminal and civil contexts, the Supreme Court has rejoined battles over the bounds of notice doctrine fought during the New Deal. Interestingly, many of these opinions share a common feature: they concern confusing federal statutes and complex federal regulatory schemes, and the judicial demand for better notice appears to flow from the perception that statutory and regulatory complexity poses a threat to the values of notice. As these new considerations of legal complexity draw modern judges to reassess the protections necessary to secure adequate notice, the buffer zone of deference erected during the New Deal is showing signs of fragility. For the second time in a century, due process notice is in play as a tool for restraining the scope and reach of federal law.


The most familiar aspect of the modern conception of due process notice is vagueness doctrine. To quote the conventional formulation of this rule, vagueness doctrine "bars enforcement of '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 and differ as to its application."' (22) "Vagueness doctrine is an outgrowth not of the First Amendment, but of the Due Process Clause of the Fifth Amendment," (23) and it thus applies to all laws, not merely those affecting expressive activity. (24)

Vague laws imperil two important values. First, vague laws are hard to follow and threaten to trap the innocent: "[B]ecause we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." (25) Second, vague laws permit arbitrary and discriminatory enforcement: "A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application." (26)

Application of modern vagueness doctrine depends in four important ways upon the nature of the enactment, whether statutory or regulatory, under attack for vagueness. First, "economic regulation is subject to a less strict vagueness test" than noneconomic regulation. (27) Second, enactments with civil penalties are subject to a less exacting test for precision than enactments carrying criminal penalties. (28) Third, a scienter requirement may "mitigate a law's vagueness" because such a requirement might provide some assurance of "the adequacy of notice to the complainant that his conduct is proscribed." (29) Finally, "perhaps the most important factor" affecting the vagueness analysis is the question whether the law "threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or of association, a more stringent vagueness test should apply." (30)

Apart from vagueness doctrine, the due process entitlement to "fair warning" and to an opportunity to comply with the law has other "manifestations" as well? (31) Chief among them are the rule of lenity and the rules pertaining to retroactivity in the law. In the criminal context, the rule of lenity, which is "a sort of 'junior version of the vagueness doctrine,'" resolves ambiguity in a criminal statute so that the statute will apply "only to conduct clearly covered." (32) The conventional formulation of the rule of lenity is the maxim that "penal statutes should be strictly construed against the government." (33) By encouraging precision in the drafting of criminal statutes, this rule protects the criminal defendant's right to receive sufficient notice that she might be breaking the law. (34)

Limitations on the retroactive application of laws also protect the values of notice and fair warning that underlie constitutional due process notice. If a rule is applied retroactively, the targets of the rule will be subjected to a legal regime that they could not have anticipated. Retroactive application of a new rule thus has the potential to cause unfair surprise, thereby threatening the value of fairness that due process notice doctrine seeks to serve. (35) Animosity to retroactivity is "deeply rooted" in American law and "embodies a legal doctrine centuries older than our Republic": the notion that "[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly." (36)

The rules on retroactivity apply differently in the criminal and the civil contexts. The constitutional prohibition on ex post facto laws bars legislatures from retroactively criminalizing conduct. (37) As a matter of due process, courts are likewise barred from applying "a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope." (38)

In the civil context, in contrast, no per se barrier exists to the retroactive application of statutes as such; the mere fact of retroactivity is not enough to require invalidation of a statute. (39) Courts do, however, interpret statutes in accordance with a presumption against retroactivity, which is in effect a clear-statement rule requiring Congress to state unambiguously when it wishes a statute to "impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." (40) If the language meets this clear-statement test, the Court will then consider whether the legislation has an impermissibly retroactive effect as a matter of substantive due process. (41) This inquiry can turn on a variety of factors, including whether the law affects procedural or substantive rights, whether it appears punitive, and whether it creates new liabilities where none previously existed, (42) but the overarching inquiry focuses on "considerations of fair notice, reasonable reliance, and settled expectations." (43)

This (perhaps dry) mapping of the black-letter components of modern due process notice doctrine should not obscure the overarching and common significance of these rules. Supreme Court precedent protects the values of notice and fair warning both through substantive doctrines and through canons of construction and in both the civil and criminal contexts. Although these doctrines are not generally spoken of as a cluster, they are deeply interconnected. Part of the project of this Article is to show the links between these doctrines and how they move in concert. The next Part explains how the Court reshaped the chief contours of these doctrines over the span of the New Deal.


Concerns about due process notice would have loomed much larger at the beginning of the New Deal than they do today. In the early 1930s, the possibility of secret law was not merely hypothetical. One of the capstone achievements of President Roosevelt's first New Deal, the National Industrial Recovery Act (NIRA) (44) resulted in the production of law at a rate that made it no mean feat merely to find applicable positive law. Hundreds of codes prohibiting thousands of practices were approved by the National Recovery Administration (NRA), the agency responsible for implementing the NIRA. (45) There was not yet a Federal Register to collect and disseminate such pronouncements.46 The NRA "boasted" that it "would not be bound by 'legalisms'" or "legalistic requirements" in its lawmaking. (47) But the practical effect of the NRA's stance was that it "dispense[d] with one of the most basic elements of a fair legal system: notice through published laws." (48)

An explicit example of the New Deal Court's concerns about notice appears in a case that is famous for an entirely different reason: because it is one of just two instances in which the Supreme Court has struck down a statute as an unconstitutional delegation of power to the executive branch. Panama Refining Co. v. Ryan (49) addressed a section of the NIRA that prohibited transportation in commerce of oil produced or withdrawn in excess of state laws or regulations. (50) The portion of the Petroleum Code limiting oil production had been rescinded by executive order. (51) But because of a "failure to give appropriate public notice of the change in the section," this rescission was, for all intents and purposes, unknown even to "the persons affected, the prosecuting authorities, and the courts." (52) Lurking in the backdrop of the Court's invalidation of the challenged section of the NIRA as an unconstitutional delegation of legislative power (53) was the Court's jarring recognition that the vast executive power created by the NIRA could be wielded secretly--in a manner unbeknownst to litigants as sophisticated as those practicing before the nation's highest court. Even Justice Cardozo, though he would have upheld the NIRA's delegation of authority, wrote that "[o]ne must deplore the administrative methods that brought about uncertainty for a time as to the terms of executive orders intended to be law." (54)

Today, it is unthinkable that parties could litigate a case up to the Supreme Court without knowing whether or not the provisions they were arguing over still existed. But for the Court during the 1930s, the absence of notice of the law was a tangible possibility, not merely conjectural. Moreover, and this is perhaps the more important point, the lapse in notice of the law came to the Court wrapped in a challenge to the heart of the first New Deal agenda, with its centralized planning, its industrial codes of law, and its innovative administrative methods.

With this context in mind, the discussion below analyzes how the Court's stance on due process notice changed as the New Deal era unfolded.

A. Vagueness

The years between 1914 and 1932 saw the birth of the void-for-vagueness doctrine, which is to say, the transformation of vagueness doctrine from a canon of statutory construction into a substantive doctrine for invalidating statutes. (55) By Connally v. General Construction Co., (56) in which it coined the still-current verbal formulation of the doctrine, (57) the Court had struck down criminal statutes as vague on several occasions. (58) By 1931, the requirement of definiteness in statutory standards had "rapidly crystallized into an imposing doctrine of constitutional law." (59) The Court during this period held that statutory standards for "'unreasonable prices,' 'reasonable profits,' 'real value' and 'current rate of wages'" were unconstitutionally vague. (60)

Considerations of vagueness formed a component or a backstop to many of the pre-New Deal Court's most notorious holdings. The most obvious examples are the nondelegation cases. (61) Both landmark nondelegation decisions from this era--A.L.A. Schechter Poultry Corp. v. United States (62) and Panama Refining--faulted the vagueness of the statutes under attack. (63) But vagueness also played a part in other important cases from this period with less evident connections to legislative clarity. The famous Adkins v. Children's Hospital, (64) in which the Court invalidated minimum-wage laws in Washington, D.C., (65) was not just a case about liberty of contract, but a case about vagueness as well. (66) Likewise, Morehead v. New York ex rel. Tipaldo, (67) which is more generally thought of as a liberty-of-contract case, held that the New York minimum-wage statute for women workers was unconstitutionally vague. (68)

After the New Deal, the Court showed much less concern with vagueness. The Court rejected vagueness challenges to a variety of statutes, both civil and criminal. (69) These holdings were occasionally joined with cases about federalism or liberty of contract. So, for example, when the Court famously rejected federalism challenges to the Fair Labor Standards Act of 1938 (FLSA) (70) in United States v. Darby, (71) it also rejected the defendant's vagueness challenge to the provision of the act that criminalized the transportation in commerce of goods that had been produced in violation of the act. (72) And the newly loosened standards for clarity had important effects on cases addressing legislative delegations of authority to executive agencies because the Court was no longer inclined to void such delegations for impermissible vagueness. (73)

The Court's treatment of First Amendment vagueness attacks evolved in the opposite fashion. In the pre-New Deal period, the Court did not favorably regard vagueness challenges on First Amendment grounds; vagueness challenges "received short shrift" in free speech cases. (74) In contrast, First Amendment vagueness challenges began to gain traction by the late 1930s, and thereafter developed into a formidable edifice of law. (75)

Several distinct doctrinal shifts account for these tectonic changes in vagueness cases. First, the Court tightened its standards for sustaining facial attacks to the vagueness of laws. Second, the Court altered its pre-New Deal methods for determining the substantive vagueness of civil economic statutes. Third, the Court insulated criminal laws from vagueness attacks by starting to treat mens rea requirements as a substitute for legislative clarity.

1. Facial Challenges. Before the New Deal and into the early New Deal period, the Court entertained and sustained numerous facial attacks to the vagueness of statutes, both civil and criminal, without establishing first whether the statute gave fair warning to the particular complainant before the Court. (76) As late as 1939, the Court in Lanzetta v. New Jersey (77) insisted that it was proper to rule on a facial attack to a New Jersey criminal statute that made it illegal for persons with a record of prior convictions and without a lawful occupation to consort in a "gang." (78) The Court's opinion made no reference to whether the challengers themselves had adequate notice that their conduct was prohibited. (79) The Court in this period took it "for granted that [facial] invalidation of a statute for vagueness was not precluded by a showing that the claimant or others had been fairly warned." (80) This was for a simple reason: "The certainty required by the Due Process Clause is not tested from the would-be violator's standpoint; the test is rather whether adequate guidance is given to those who would be law-abiding." (81)

In 1940, the Court created First Amendment overbreadth doctrine in Thornhill v. Alabama, (82) which expressly singled out First Amendment cases as being a special context in which facial attacks were endorsed. (83) Perhaps not coincidentally, the Court thereafter began to inquire into whether a statute was vague as applied to the challenger as a prerequisite to addressing a facial vagueness attack on a statute that did not implicate the First Amendment.

This shift was gradual, not absolute. In Robinson v. United States, (84) for example, the Court rejected a facial attack on a federal criminal kidnapping statute by citing the fact that the particular conduct charged against the defendant unquestionably came within the statutory proscription, (85) Two years later, however, in United States v. Petrillo, (86) the Court considered and rejected a facial attack on an economic criminal statute without considering whether the particular defendant charged had received adequate notice that his conduct was criminal. (87) In Williams v. United States, (88) the Court reverted to the Robinson approach and rejected a facial attack on a federal statute that prohibited extracting confessions by force because it was "plain as a pikestaff" that the confessions at issue were inadmissible evidence. (89) In United States v. Harriss, (90) which concerned the Federal Regulation of Lobbying Act, (91) the Court rejected a facial vagueness attack on the statute without first determining whether the defendants' conduct was unambiguously prohibited by it. (92)

And so it went. The Court's vacillating approach, however, hides an underlying consistency. In the above cases, the Court entertained facial attacks to the vagueness of nonspeech statutes. But Lanzetta appears to be the last case to expressly endorse and actually sustain a facial vagueness attack outside the First Amendment context without any inquiry into whether the law was vague as applied to the challenger. (93)

In 1963, the Court in United States v. National Dairy Products Corp. (94) made it explicit: in nonspeech cases, the challenger had to show that the law was vague as applied to her before she could prevail on a facial challenge. (95) Put another way, the Court's treatment of facial challenges to the vagueness of nonspeech statutes would thereafter merge with its treatment of any facial challenge to a nonspeech statute. (96) At this point, "non-speech overbreadth" for vagueness cases was formally interred, even though it had been effectively defunct since Lanzetta. Subsequent holdings, such as those in Parker v. Levy (97) and United States v. Mazurie, (98) entrenched this approach, which continues to be applied in modern cases. (99) In recent decades, the Court has sporadically departed from this practice by facially invalidating statutes as vague when constitutional values were potentially at issue, (100) but these cases are hardly ringing endorsements of the general propriety of facial vagueness attacks, (101) By thus curbing the availability of facial vagueness attacks outside the First Amendment context, the Court sharply raised the bar for bringing a successful vagueness challenge.

2. Civil Economic Legislation. Vagueness doctrine had traditionally treated a term's common-law meaning or the conventions of its usage in a trade as sources of semantic content that could clarify otherwise ambiguous statutory terminology. (102) Thus,

whereas the intelligibility of a generally applicable statute would be tested by reference to a person of "ordinary intelligence" (103) or by reference to "well-settled" meaning, (104) a statute regulating businesses would be assessed by reference to whether it was comprehensible to those engaged in the regulated trade. (105) Economic laws, then, were not subjected to a qualitatively lesser test for vagueness; rather, they were subject to the generally applicable rule that a law provided adequate notice when it was comprehensible to those whom it regulated.

This methodology largely disappeared after the New Deal. The precise moment is difficult to pinpoint. The turning point may simply have been the "switch in time" cases authorizing rational economic legislation. (106) Or it may have been a byproduct or offshoot of the new line of First Amendment cases that emphasized with fresh vigor how important it was to protect speech from vague laws. (107) The method that took its place was the rule that economic laws are subject to relaxed vagueness review simply because they are economic laws, just as they are subject to minimal review for policy purposes. In the decades following the New Deal, it became uncontroversial to announce that "purely economic regulation" was subject to a less stringent vagueness standard. (108)

Separately, the New Deal Court altered its treatment of civil laws vis-gt-vis criminal laws. Prior to the New Deal, the Supreme Court had held that civil statutes and criminal statutes were equally subject to void-for-vagueness analysis. The case that presented this question, A.B. Small v. American Sugar Refining Co., (109) involved a breach-of-contract action over two sugar contracts. (110) The petitioner contended that the contracts were unenforceable because they violated the provision of the Lever Act (111) that forbade "unreasonable" profits on such sales. (112) In response, the seller argued that an earlier criminal case, United States v. L. Cohen Grocery Co., (113) required the Court to reject the petitioner's defense because that case had held that the standard of "unreasonable" profits was an unconstitutionally vague standard for criminal liability. (114) The Small Court agreed that the reasoning of Cohen governed in the civil context:

The defendant attempts to distinguish [Cohen and its progeny] because they were criminal prosecutions. But that is not an adequate distinction. The ground or principle of the decisions was not such as to be applicable only to criminal prosecutions. It was not the criminal penalty that was held invalid, but the exaction of obedience to a rule or standard which was so vague and indefinite as really to be no rule or standard at all. (115)

The Court went on to state that legislation "declaring the transaction unlawful or stripping a participant of his rights under it" would equally fall within the rule of Cohen, and it approved the reasoning of several lower courts that had similarly held that civil statutes could be void for vagueness. (116) Two years later, the Court reiterated that the principle of due process forbidding vague legislation "has application as well in civil as in criminal legislation. (117)

After the New Deal, the Court's stance on this issue shifted in a subtle way that would ultimately prove important. The Court started to emphasize that criminal statutes were subject to more rigorous review for vagueness than civil statutes. The Court stated that "[t]he standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanction for enforcement." (118) By 1951, the differential treatment was entrenched still more deeply. In Jordan v. De George, (119) the Court strongly implied that noncriminal statutes were presumptively exempt from vagueness attack when it stated that it was only entertaining a vagueness challenge to the civil immigration statue because of the "grave nature" of deportation. (120) Indeed, the Court in Jordan went on to state that the "essential purpose of the 'void for vagueness' doctrine is to warn individuals of the criminal consequences of their conduct." (121) The distinction for the purposes of vagueness analysis between civil and criminal laws was subsequently reiterated on several occasions, (122) and the modern rule continues to reflect this analytical divide. (123)

This shift in the verbal articulation of the formula may seem a slight one--a mere change in emphasis, or perhaps a statement of an unobjectionable or obvious fact in a system of laws that frequently, and without much ado, treats civil and criminal laws quite differently. But insofar as vagueness doctrine was concerned, the Court's emphasis on the civil-criminal divide appears to have had more than slight consequences. Since the New Deal, the Supreme Court has not struck down a federal civil statute regulating economic behavior as void for vagueness. (124) On more than one occasion, it has reversed decisions by lower federal courts that have struck federal civil statutes as vague. (125) State or local civil statutes that have been held void for vagueness have implicated First Amendment values. (126) Conversely, vagueness challenges have retained some potency when levied against criminal statutes, usually state or local, (127) but occasionally federal. (128)

Although the Court continued to describe its stance as one of "greater tolerance" to vagueness in civil economic statutes than in criminal statutes, (129) this understates the case. The doctrine of due process notice fell into such desuetude in the civil economic context that, in 1983, Justice Brennan noted with evident surprise that the Court of Appeals for the Second Circuit "apparently believed that, in cases not involving criminal sanctions, formal administrative rulemakings, or activities protected by the First Amendment, the Due Process Clause imposes virtually no requirement of fair warning." (130) In short, judicial enforcement of minimal standards for linguistic clarity for civil economic legislation evaporated after the New Deal.

3. Criminal Legislation. Although criminal legislation remained subject to scrutiny for vagueness, the vulnerability of criminal legislation to vagueness attack diminished during the New Deal. The reason for this was that the Court settled upon a novel doctrinal tool for deflecting vagueness challenges to criminal statutes: the principle that amens rea element in a criminal statute could mitigate a lack of clarity in its language.

Before the New Deal, the Court had used statutory mens rea elements in a different fashion--as a means to protect the interests of accused defendants in having notice of complex laws. In 1933, in United States v. Murdock, (131) the Court held that in the criminal tax context, the term "willfully" meant an "evil motive"; (132) only the errors of the "purposeful tax violator" would meet the standard of willfulness. (133) The special Murdock construction of willfulness in the tax context is an "exception to the traditional rule" that ignorance of the law is no excuse, and it applies "largely due to the complexity of the tax laws." (134) In other words, within the isolated context of federal criminal tax laws, the Court treated a statutory willfulness term as tightening the standard for criminal culpability by reading such a term as requiring the government to prove a knowing violation of the tax law by the accused. (135)

After the New Deal, however, the jurisprudence of mens rea took an interesting tack in the context of vagueness challenges. The Court began to rely on mens rea terms--initially willfulness terms, but eventually other intent terms too--as a reason to rebut or deflect vagueness attacks on criminal statutes.

This was a curious turn. Logically speaking, mens rea and clarity are apples and oranges, or nonfungible goods. The presence of a mens rea requirement in a criminal statute cannot make otherwise unclear statutory language clear as to what it prohibits. But after rebuffing--or, more accurately, ignoring--the possibility of equating mens rea with clarity in several cases, (136) the Court eventually seized upon this method for quelling vagueness attacks.

On three occasions between 1936 and 1942, the Court cited a statute's scienter requirement as its basis for rejecting a vagueness attack. (137) But the battle over this question was really only decisively joined in Screws v. United States. (138) As part of a New Deal initiative, President Roosevelt sought to invoke the criminal provisions of federal civil rights statutes to provide a federal response to the lynching of African Americans by white supremacists. (139) The statutes criminalized the deprivation of constitutional rights by officials acting under color of legal authority. (140) In one of the four separate opinions that would ultimately dispose of the case, the plurality recounted the "shocking and revolting" circumstances whereby an African American, Robert Hall, was brutally murdered by a Georgia sheriff who had a vendetta against him. (141) The sheriff, Screws, was alleged to have been acting under color of Georgia law to willfully deprive Hall of his rights to life, liberty, and due process of law and for conspiring to do the same. (142)

Upon conviction, the defendant appealed on vagueness grounds. He contended that the statute was unconstitutionally vague because the standard of due process incorporated by the statute created "no ascertainable standard of guilt." (143) As the plurality put it, the challenged act "would incorporate by reference a large body of changing and uncertain law. That law is not always reducible to specific rules, is expressible only in general terms, and turns many times on the facts of a particular case." (144) The defendant argued that "such a body of legal principles lacks the basic specificity necessary for criminal statutes under our system of government." (145)

While acknowledging the gravity of the vagueness attack, the plurality rejected this argument by citing the element of willfulness in the statute. The plurality reasoned that "willfully" as used in the challenged act "connot[ed] a purpose to deprive a person of a specific constitutional right." (146) On that reading, "[a]n evil motive to accomplish that which the statute condemns becomes a constituent element of the crime," an element that had to be submitted to a jury. (147) And because the willful intent described by the law meant only the intent to deprive a person of "a right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them," the law was not indefinite. (148)

The dissent thought this reasoning was ludicrous, and said so:
   It is as novel as it is an inadmissible principle that a criminal
   statute of indefinite scope can be rendered definite by requiring
   that a person "willfully" commit what Congress has not defined but
   which, if Congress had defined, could constitutionally be outlawed.
   ... It has not been explained how all the considerations of
   unconstitutional vagueness which are laid bare in the early part of
   the Court's opinion evaporate by suggesting that what is otherwise
   too vaguely defined must be "willfully" committed. (149)

The dissenting Justices remarked that the plurality's reasoning "amount[ed] to saying that the black heart of the defendant" could enable him to know what deprivations of constitutional rights were forbidden, "although we as judges are not able to define their classes or their limits." (150)

Notwithstanding the odd combination of opinions that produced the outcome in Screws, the rule was thereafter settled. (151) In American Communications Ass'n v. Douds, (152) the Court addressed the provision of the Labor Management Relations Act of 1947 (153) that, as a condition of recognition of a labor union, required officers of the union to file affidavits stating that they did not belong to the Communist Party and did not believe in the overthrow of the government by force. (154) The Court held that because criminal punishment under this provision would require proof of willfulness, the statute was not vague, (155) despite the "breadth of such [statutory] terms as 'affiliated,' 'supports' and 'illegal or unconstitutional methods."' (156) The Court would thereafter frequently cite a statute's mens rea requirement as a factor in its decision to reject a vagueness challenge to it. (157)

Interestingly, the evolution of the Court's treatment of the mens tea requirement echoes the evolution of its stance toward as-applied and facial vagueness challenges described above. (158) The Court's ultimate position is that a requirement that the defendant willfully, knowingly, or purposefully contravene the statute--a mens rea requirement--can save the whole statute from vagueness. This means, in essence, that a facial attack upon the vagueness of a criminal statute cannot succeed if a conviction under the statute requires some proof of culpable intent by the defendant. This approach resonates with the Court's post-New Deal adoption of the rule that as-applied vagueness must be shown before a facial attack on vagueness can prevail. (159) By thus relying upon scienter requirements as a substitute for statutory clarity, the Supreme Court lowered the constitutional threshold of clarity for the mine run of criminal laws. (160)

B. Retroactivity

Derived from the English common law and ultimately from Roman law, (161) the antiretroactivity principle was adopted into American law in the young days of the republic. (162) In the early nineteenth century, the Supreme Court expanded the rule by applying it to law whose prospective operation had the effect of divesting rights that were "vested" prior to the date of the law's enactment. (163) Thus expanded and entrenched, the concept of retroactivity and the related notion of vested rights "played a central role in the constitutional protection of property and contract rights before the late nineteenth century." (164) Through the start of the New Deal era, the Court continued to reiterate the presumption against Retroactivity (165) and to hold statutes impermissibly retroactive. (166)
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Title Annotation:due process notice doctrine; Introduction to II. The New Deal Reformulation of Due Process Notice Doctrine B. Retroactivity, p. 1169-1199
Author:Sohoni, Mila
Publication:Duke Law Journal
Date:Mar 1, 2013
Previous Article:The Supreme Court's theory of private law.
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