Cite as: 538 U. S. 343 (2003)
Opinion of Scalia, J.
theoretical possibility that the court, on remand, could interpret the provision in a manner different from that so far set forth in order to avoid the constitutional objections we have described. We leave open that possibility." Ante, at 367.
Now this is truly baffling. Having declared, in the immediately preceding sentence, that § 18.2-423 is "unconstitutional on its face," ibid. (emphasis added), the plurality holds out the possibility that the Virginia Supreme Court will offer some saving construction of the statute. It should go without saying that if a saving construction of § 18.2-423 is possible, then facial invalidation is inappropriate. E. g., Harrison v. NAACP, 360 U. S. 167, 176 (1959) ("[N]o principle has found more consistent or clear expression than that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them"). So, what appears to have happened is that the plurality has facially invalidated not § 18.2-423, but its own hypothetical interpretation of § 18.2-423, and has then remanded to the Virginia Supreme Court to learn the actual interpretation of § 18.2-423. Words cannot express my wonderment at this virtuoso performance.
III
As the analysis in Part I, supra, demonstrates, I believe the prima-facie-evidence provision in Virginia's cross-burning statute is constitutionally unproblematic. Nevertheless, because the Virginia Supreme Court has not yet offered an authoritative construction of § 18.2-423, I concur in the Court's decision to vacate and remand the judgment with respect to respondents Elliott and O'Mara. I also agree that respondent Black's conviction cannot stand. As noted above, the jury in Black's case was instructed that "[t]he burning of a cross, by itself, is sufficient evidence from which you may infer the required intent." App. 196 (emphasis
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