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Justice Thomas has a different take on the Void for Vagueness Doctrine.
That Courts have repeatedly used a doctrine to invalidate laws does not make it legitimate. Cf., e.g., Dred Scott v. Sandford, 60 U.S. 393, 19 How. 393, 450-452, 15 L. Ed. 691 (1857) (stating that an Act of Congress prohibiting slavery in certain Federal Territories violated the substantive due process rights of slaveowners and was therefore void). The Court has a history of wielding doctrines purportedly rooted in “due process of law” to achieve its own policy goals, substantive due process being the poster child. See McDonald v. Chicago, 561 U.S. 742, 811, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010) (Thomas, J., concurring in part and concurring in judgment) (“The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not”). Although our vagueness doctrine is distinct from substantive due process, their histories have disquieting parallels.
Before the end of the 19th century, courts addressed vagueness through a rule of strict construction of penal statutes, not a ...
