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How to Challenge the Constitutionality of a Statute


Background: You're in Federal court; decrying a statute's constitutionality
Problem: You don't know how to formalize your constitutional challenge
Solution: You use this guide to file a 'Notice of a Constitutional Challenge'

I. Definitions

Challenge
In general, to call one out to answer for something; an objection or exception calling into question the existence of a right, the validity or sufficiency of an instrument, or the capability of a person for a specific function. Also, an objection by a party (or lawyer) to the inclusion of a particular prospective juror as a member of the jury that is to hear that party’s cause or trial, with the result that the prospective juror is disqualified from the case.
Notice
information concerning a fact actually communicated to a person by an authorized person, or actually derived by him or her from a proper source. Notice to a defendant of a lawsuit that has been instituted against him or her or of an action in which he or she may have an interest to defend is accomplished by service of process on him or her.
LEGAL NOTICE such notice as the law requires to be given. Legal notice may be notice that the law implies because of knowledge of the actual facts (see ACTUAL NOTICE, above), because of specific avoidance of the available knowledge (see IMPLIED NOTICE, above), or because of the presumption that knowledge has been acquired (see CONSTRUCTIVE NOTICE). Refers also to the act of advertising by publication in a legal or general circulation newspaper. Publication includes such notices as the proposal formation or settlement of a class action suit, or a person's legal change of name.
Statute
an act of the legislature, adopted under its constitutional authority, by prescribed means and in certain form, so that it becomes the law governing conduct within its scope. Statutes are enacted to prescribe conduct, define crimes, create inferior government bodies, appropriate public monies, and in general to promote the public welfare.
Unconstitutional
conflicting with some provision of the Constitution. A statute found to be unconstitutional is considered void or as if it had never been, and consequently all rights, contracts or duties that depend on it are void. Similarly, no one can be punished for having refused obedience to the law once it is found to be unconstitutional.

II. Legal Citations

Rule 5.1 Fed. R. Civ. P. | Constitutional Challenge to a State Statute – Notice, Certification, and Intervention
(a) NOTICE BY A PARTY. A party that files a pleading, written motion, or other paper drawing into question the constitutionality of a federal or state statute must promptly:
(1) file a notice of constitutional question stating the question and identifying the paper that raises it, if:
(A) a federal statute is questioned and the parties do not include the United States, one of its agencies, or one of its officers or employees in an official capacity; or

(B) a state statute is questioned and the parties do not include the state, one of its agencies, or one of its officers or employees in an official capacity; and
(2) serve the notice and paper on the Attorney General of the United States if a federal statute is questioned — or on the state attorney general if a state statute is questioned — either by certified or registered mail or by sending it to an electronic address designated by the attorney general for this purpose.
(b) CERTIFICATION BY THE COURT. The court must, under 28 U.S.C. §2403, certify to the appropriate attorney general that a statute has been questioned.

(c) INTERVENTION; FINAL DECISION ON THE MERITS. Unless the court sets a later time, the attorney general may intervene within 60 days after the notice is filed or after the court certifies the challenge, whichever is earlier. Before the time to intervene expires, the court may reject the constitutional challenge, but may not enter a final judgment holding the statute unconstitutional.

(d) NO FORFEITURE. A party’s failure to file and serve the notice, or the court’s failure to certify, does not forfeit a constitutional claim or defense that is otherwise timely asserted.
Rule 44 Fed. R. App. P. | Case Involving a Constitutional Question When the United States or the Relevant State is Not a Party
(a) Constitutional Challenge to Federal Statute. If a party questions the constitutionality of an Act of Congress in a proceeding in which the United States or its agency, officer, or employee is not a party in an official capacity, the questioning party must give written notice to the circuit clerk immediately upon the filing of the record or as soon as the question is raised in the court of appeals. The clerk must then certify that fact to the Attorney General.

(b) Constitutional Challenge to State Statute. If a party questions the constitutionality of a statute of a State in a proceeding in which that State or its agency, officer, or employee is not a party in an official capacity, the questioning party must give written notice to the circuit clerk immediately upon the filing of the record or as soon as the question is raised in the court of appeals. The clerk must then certify that fact to the attorney general of the State.
28 USC §2403 | Intervention by United States or a State; Constitutional Question
(a) In any action, suit or proceeding in a court of the United States to which the United States or any agency, officer or employee thereof is not a party, wherein the constitutionality of any Act of Congress affecting the public interest is drawn in question, the court shall certify such fact to the Attorney General, and shall permit the United States to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The United States shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.

(b) In any action, suit, or proceeding in a court of the United States to which a State or any agency, officer, or employee thereof is not a party, wherein the constitutionality of any statute of that State affecting the public interest is drawn in question, the court shall certify such fact to the attorney general of the State, and shall permit the State to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of constitutionality. The State shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.

III. Samples

USFLMD
# PDF Comments
101logoAdobe± Pending | TBD case. Pro Se Filing | 2024 | State Statutes (§760.06 FS, §760.11 FS) | Permissible Bribery; "Cause" DeterminationsiconPriceTag
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IV. Templates

# Link Comments
1iconMSWordTBD's Template | Replace all placeholder tags with real data (eg "[plfName]" becomes "John Doe").iconPriceTag
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V. Application

VI. Quick Commentary

  • Act swiftly (ie, file this document as soon as you can)
  • Notify your appellate court (particularly if your district court fails to certify your challenge [to the attorney general])
  • Download as many sample documents as you'd like
  • Also, feel free to use the templates (see Part IV - above) to help draft your 'Notice of a Constitutional Challenge'
  • Save the final version as a PDF file.
  • File it in court

VII. Additional Resources

VIII. Bibliography

IX. Conclusion

A Notice of Constitutional Challenge might help you obtain the relief that you seek.

With the use of the templates (as well as the samples above), you can more easily ask your court to certify the constitutional challenge that you have made.

...POINTS & THINGS...

Congratulations! You're now booked up on how to write a Notice of a Constitutional Challenge!

You can use this to get the government to take steps to address its unamerican/undemocratic doctrines.

As always - please get the justice you deserve.

Sincerely,



www.TextBookDiscrimination.com
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