Governor Rick Perry, still in the news after his two-county felony indictment last month, has —through his attorneys— filed a motion to quash (nix) the charges against him. The charges, abuse of office and coercion, are alleged by Perry's attorneys to be unconstitutionally void for vagueness.
The pleadings are a familiar tactics, as Perry's team recently raised most the same points in habeas petition a week or two back. At its core, the argument suggests that, not only are the charges against Perry ludicrous, but that the statutes used to prosecute him are inherently constructed improperly.
Now, many unfamiliar with legal proceedings (in a virtually obligatory disclosure, I am not an attorney) may contend that arguing the legality of a statute you are charged under means that you have stipulated your guilt under that statute. For better or for worse, the law simply does not work like that.
Still, the arguments raised by the void-for-vagueness approach should prompt an interesting conversation about the last-ditch effort commonly used by defense attorneys for crimes large and small. The current controlling precedent throughout the nation on what constitutes an unconstitutionally void statute stems from the Supreme Court. Justice George Sutherland wrote in the 1926 case of Connally v. General Construction Co. that such laws are those that "men of common intelligence [to] necessarily guess at its meaning and differ as to its application."
In recent practice, this plausibly low bar for striking down a law has been raised somewhat intensely. Using the standards needed to strike abuse of office or coercion statutes, most laws on drug dealing or sexual assault could probably be tossed as well. Also, what constitutes a person "of common intelligence"? What discerns a "guess" from a reasonable conclusion? How large must two people's disagreement be in order for it to truly "differ"? Even Justice Sutherland's instructions on vagueness may be too vague by his own standards.
Perhaps Perry's team should come up with a different strategy. Though perhaps you disagree? I suppose I might be too vague.