The title of this Essay is somewhat misleading. First of all, by Supreme Court archives, I do not mean the official documents of the Supreme Court as an institution. Rather, my dispatch heralds from the archives of individual Justices who have deposited their papers in a variety of institutions, most notably the Library of Congress. Second of all, I am not actually writing from those archives. With a digital camera and a lot of memory cards, I have essentially reproduced the archives on my computer. As this nifty technology allows me to read my thousands of documents pretty much anywhere, I must confess: I am not, at this very moment, in the archives.

Metaphorically speaking, however, my title is accurate. This Essay is a dispatch from the archives in the sense that I am here to share a few finds I made in the Justices' papers that I imagine will be of interest to many a scholar of law and history. These finds consist of (1) portions of an early draft of Justice William O. Douglas's opinion in the 1972 vagrancy case of Papachristou v. City of Jacksonville; (2) memoranda between Justice Douglas and Justices William J. Brennan, Jr., and Potter Stewart about that opinion; and (3) a memo from Brennan to Douglas about Roe v. Wade. These documents—which I have reproduced below for your perusal—shed new light on several apparently disparate issues in constitutional law: the Supreme Court's use of void-for-vagueness doctrine, the social and constitutional history of vagrancy law, the possibility and contours of constitutional regulation of substantive criminal law, the relationship between Papachristou and Roe, and the development and conceptualization of fundamental rights. I am guessing that you are surprised to learn that previously untapped Supreme Court documents reveal links between this odd assortment of subjects. You are probably even more surprised to learn that the glue that holds it all together is vagrancy law. Vagrancy law, you ask? Vagrancy law, I say. But let me explain...

 

Read the full article.