dissenting.
I dissent from the Court's summary reversal. The offense of “crimes against nature” at common law was narrowly limited to copulation per anum. American jurisdictions, however, expanded the term — some broadly and some narrowly — to include other sexual “aberrations.” Of particular significance for this case, as the Court of Appeals accurately stated, “courts have differed widely *54in construing the reach of ‘crimes against nature’ to cunnilingus.” 514 F. 2d 570, 571.
The Court holds, however, that because “[o]ther jurisdictions had already reasonably construed identical statutory language to apply to [cunnilingus] . . . given the Tennessee court’s clear pronouncements that its statute was intended to effect broad coverage, there was nothing to indicate, clearly or otherwise, that respondent’s acts were outside the scope of § 39-707.” Ante, at 53. In other words the traditional test of vagueness — whether the statute gives fair warning that one’s conduct is criminal- — -is supplanted by a test of whether there is anything in the statute “to indicate, clearly or otherwise, that respondent’s acts were outside the scope of” the statute. This stands the test of unconstitutional vagueness on its head. And this startling change in vagueness law is accompanied by the equally startling holding that, although the Tennessee courts had not previously construed “crimes against nature” to include cunnilingus, respondent cannot be heard to claim that § 39-707 therefore afforded no notice that his conduct fell within its scope, because he was on notice that Tennessee courts favored a broad reach of “crimes against nature” and other state courts favoring a broad reach had construed their state statutes to include cunnilingus.
Yet these extraordinary distortions of the principle that the Due Process Clause prohibits the States from holding an individual criminally responsible for conduct when the statute did not give fair warning that the conduct was criminal, are perpetrated without plenary review affording the parties an opportunity to brief and argue the issues orally. It is difficult to recall a more patent instance of judicial irresponsibility. For without plenary review the Court announces today, contrary to our prior decisions, that even when the statute he is *55charged with violating fails of itself to give fair warning, one acts at his peril if the state court has indicated a tendency to construe the pertinent statute broadly, and some other state court of like persuasion has construed its state statute to embrace the conduct made the subject of the charge. I simply cannot comprehend how the fact that one state court has judicially construed its otherwise vague criminal statute to include particular conduct can, without explicit adoption of that state court’s construction by the courts of the charging State, render an uninterpreted statute of the latter State also sufficiently concrete to withstand a charge of unconstitutional vagueness. But apart from the merits of the proposition, surely the citizens of this country are entitled to plenary review of its soundness before being required to attempt to conform their conduct to this drastically new standard. Today’s holding surely flies in the face of the line of our recent decisions that have struck down statutes as vague and overbroad, although other state courts had previously construed their like statutes to withstand challenges of vagueness and over-breadth. See, e. g., the “abusive language” decisions of which Gooding v. Wilson, 405 U. S. 518 (1972), is illustrative.
Nor will the Court’s assertions that the Tennessee courts had in any event in effect construed the Tennessee statute to include cunnilingus withstand analysis. The Court relies on a 1955 Tennessee decision that had held that “crimes against nature” include fellatio, the Tennessee court rejecting the contention that the statute was limited to the common-law copulation-per-armm scope of the phrase. The Tennessee court in that opinion cited a Maine case, decided in 1938, State v. Cyr, 135 Me. 513, 198 A. 743, where the Maine court had applied a “crimes against nature” statute to fellatio. *56But the Tennessee court did not also cite a 1950 Maine decision, State v. Townsend, 145 Me. 384, 71 A. 2d 517, that applied Maine’s “crimes against nature” statute to cunnilingus. Fisher v. State, 197 Tenn. 594, 277 S. W. 2d 340 (1955). Four years later, in 1959, in another fellatio case, the Tennessee court again made no mention of Townsend, although quoting from Cyr’s holding that the Maine statute applies to “ 'all unnatural copulation with mankind or a beast, including sodomy.’ ” Sherrill v. State, 204 Tenn. 427, 429, 321 S. W. 2d 811, 812 (1959). Despite this significant failure of the Tennessee court to cite Townsend, and solely on the strength of the Tennessee court’s general “equating” of the Maine statute with the Tennessee statute, this Court holds today that respondent had sufficient notice that the Tennessee statute would receive a “broad” interpretation that would embrace cunnilingus.
This 1974 attempt to bootstrap 1950 Maine law for the first time into the Tennessee statute must obviously fail if the principle of fair warning is to have any meaning. When the Maine court in 1938 applied its statute broadly to all “unnatural copulation,” nothing said by the Maine court suggested that that phrase reached cunnilingus. The common-law “crime against nature,” limited to. copulation per anum, required penetration as an essential element. In holding that a “broad” reading of that phrase should encompass all unnatural copulation including fellatio — copulation per os — Maine could not reasonably be understood as including cunnilingus in that category. Other jurisdictions, though on their State’s particular statutory language, have drawn that distinction. See, e. g., Riley v. Garrett, 219 Ga. 345, 133 S. E. 2d 367 (1963); State v. Tarrant, 83 Ohio App. 199, 80 N. E. 2d 509 (1948). Thus, when the Tennessee court in 1955 adopted the language of Maine’s 1938 Cyr *57case, a Tennessee citizen had at most notice of developments in Maine law through 1938. That Maine subsequently in 1950 applied its statute to cunnilingus is irrelevant, for such subsequent developments were not “adopted” by the Tennessee court until the case before us. Indeed, the Tennessee court’s failure in its 1955 Fisher opinion to cite Townsend, Maine’s 1950 cunnilingus decision, although citing Cyr, Maine’s 1938 fellatio decision, more arguably was notice that the Tennessee courts considered fellatio but not cunnilingus as within the nebulous reach of the Tennessee statute.
Moreover, I seriously question the Court’s assumption that the “broad interpretation” of the phrase “crime against nature” is not unconstitutionally vague. The Court’s assumption rests upon two supposed precedents: (1) this Court’s dismissal for want of a substantial federal question of the appeal in Crawford v. Missouri, 409 U. S. 811 (1972), and (2) the Court’s per curiam opinion in Wainwright v. Stone, 414 U. S. 21 (1973). That reliance is plainly misplaced.
In Crawford, the appellant had been convicted of coercing a mentally xetarded individual to perform fellatio on appellant. The Supreme Court of Missouri did not, as the Court implies, for the first time in that case adopt a “broad” construction of its statute and apply that construction in appellant’s case. Rather, the Supreme Court of Missouri first noted that the original statute, probably reaching only the common-law “crime against nature,” had been legislatively amended in express terms to expand the offense to conduct committed “with the sexual organs or with the mouth,” thereby “enlarging] the common law definition of the crime ....” State v. Crawford, 478 S. W. 2d 314, 317 (Mo. 1972). Moreover, the court, observing that a “court’s construction of statutory language becomes a part of the statute *58'as if it had been so amended by the legislature/ ” ibid. (citations omitted), stated that in the 60 years since that amendment, the Missouri courts had “adjudicated” that the statute embraced “bestiality, buggery, fellatio . . . and cunnilingus,” id., at 318, and that “[a]t least five [Missouri] cases have specifically held that the act charged [against appellant] is within the statute.” Id., at 319. In light of that prior judicial and legislative construction of the statutory phrase, and its specific prior application to acts identical to the appellant’s, the dismissal in Crawford simply cannot be treated as holding that the phrase “crime against nature” is not in itself vague.
Wainwright v. Stone, as Mr. Justice Stewart correctly observes, also involved a statute already construed to cover the conduct there in question. Indeed, it was for that very reason that we held that the “judgment of federal courts as to the vagueness or not of a state statute must be made in the light of prior state constructions of the statute.” 414 U. S., at 22. The reversal of the Court of Appeals’ holding finding the statute unconstitutional was explicitly based on the fact that the state statute had previously been applied to identical conduct, which decisions “require [d] reversal” in Wainwright since they put the particular conduct expressly within the statute. Id., at 22-23.*
*59No specter of increasing caseload can possibly justify today’s summary disposition of this case. The principle that due process requires that criminal statutes give sufficient warning to enable men to conform their conduct to avoid that which is forbidden is one of the great bulwarks of our scheme of- constitutional liberty. The Court’s erosion today of that great principle without even plenary review reaches a dangerous level of judicial irresponsibility. I would have denied the petition for certiorari, but now that the writ has béen granted would affirm the judgment of the Court of Appeals or at least set the case for oral argument.
Admittedly, as the Court notes, a holding that prior application of a statute to identical conduct renders a statute sufficiently definite as to that conduct does not necessarily mean that in the absence of such prior application a statute must of necessity be deemed vague; but such a holding just as surely cannot be construed, as it is by the Court, as precedent deciding that in the absence of such construction, the phrase “crime against nature” is not unconstitutionally vague. In any event, Wainwright and Crawford present the identical situation, namely vague statutes judicially construed to narrow them.