If someone is accused of a crime in his or her state and s/he believes the statute s/he is being charged under violates one or more of his or her constitutional rights, say right to travel or free speech. Can the defendant raise an argument in his or her defense, move to dismiss, or appeal the decision under these constitutional grounds? Can he open a new case as a plaintiff against the state for enforcing unconstitutional laws?

4 Answers 4


Yes, certainly. A prominent example was Lawrence v. Texas. The defendants were charged in state court with "deviate sexual intercourse". They moved to dismiss on the grounds that the statute was unconstitutional. Their motion was denied and they were convicted and fined; the denial was upheld by the state's court of appeals. They then appealed to the US Supreme Court, which eventually ruled that the statute was indeed unconstitutional.

A defendant likely wouldn't have standing to sue the state for enforcing the law in general, only for enforcing it on the defendant himself.

  • 1
    In that case, defendants pleaded nolo so there were no trial arguments. The problem here is that we can understand the question as being about arguing at the trial, vs. arguing on appeal.
    – user6726
    Feb 9, 2017 at 3:11
  • @user6726 if a case relies solely on questions of law, there's no need for a trial, because questions of law are never put to the jury. This is why there was no trial in Lawrence. That doesn't mean that the argument was never made before the trial judge; it was, and the judge ruled against the defendants, refusing to dismiss the case. The defendants then pleaded no contest because they had no further defenses available to them.
    – phoog
    Feb 13, 2022 at 22:28
  • @phoog No case relies solely on questions of law. Lawrence still had the option to plead not guilty, and would have such defenses as "the police officers who claimed to have witnessed the behavior were lying". He may not have felt he had any defenses that had a reasonable chance of succeeding, but that's different from not having any at all. Dec 19, 2023 at 3:13

The defendant can challenge the constitutionality of the statute as part of a defense at trial or on appeal. As Justice Ginsburg recently explained:

Bond, like any other defendant, has a personal right not to be convicted under a constitutionally invalid law. . . .

In this case, Bond argues that the statute under which she was charged, 18 U.S.C. § 229, exceeds Congress' enumerated powers and violates the Tenth Amendment. Other defendants might assert that a law exceeds Congress' power because it violates the Ex Post Facto Clause, or the Establishment Clause, or the Due Process Clause. Whatever the claim, success on the merits would require reversal of the conviction. “An offence created by [an unconstitutional law],” the Court has held, “is not a crime.” Ex parte Siebold, 100 U.S. 371, 376 (1880). “A conviction under [such a law] is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.” Id., at 376-377. If a law is invalid as applied to the criminal defendant's conduct, the defendant is entitled to go free.

For this reason, a court has no “prudential” license to decline to consider whether the statute under which the defendant has been charged lacks constitutional application to her conduct. And that is so even where the constitutional provision that would render the conviction void is directed at protecting a party not before the Court. Our decisions concerning criminal laws infected with discrimination are illustrative. The Court must entertain the objection--and reverse the conviction--even if the right to equal treatment resides in someone other than the defendant. See Eisenstadt v. Baird, 405 U.S. 438, 452-455 (1972) (reversing conviction for distributing contraceptives because the law banning distribution violated the recipient's right to equal protection); cf. Craig v. Boren, 429 U.S. 190, 192 (1976) (law penalizing sale of beer to males but not females aged 18 to 20 could not be enforced against vendor). See also Grayned v. City of Rockford, 408 U.S. 104, 107, n.2 (1972); Welsh v. United States, 398 U.S. 333, 361-362 (1970) (Harlan, J., concurring in result) (reversal required even if, going forward, Congress would cure the unequal treatment by extending rather than invalidating the criminal proscription).

In short, a law “beyond the power of Congress,” for any reason, is “no law at all.” Nigro v. United States, 276 U.S. 332, 341 (1928). The validity of Bond's conviction depends upon whether the Constitution permits Congress to enact § 229. Her claim that it does not must be considered and decided on the merits.

Bond v. United States, 564 U.S. 211, 226-28 (2011) (Ginsburg, J., concurring).

  • This is helpful, but it is unclear from this in which venue such objections can be raised, or whether Ginsburg's opinion is even precedential.
    – feetwet
    Feb 9, 2017 at 14:26
  • In most cases a dispute over the constitutionality of a law needs to be raised in the trial court. There are exceptions to this rule (called the "preservation requirement" ) but they are very narrow.
    – ohwilleke
    Aug 24, 2021 at 16:12
  • @feetwet A judge's opinion in a case almost invariably sets a precedent. Perhaps you meant binding precedent (as opposed to persuasive)?
    – JBentley
    Aug 24, 2021 at 16:48
  • @feetwet Ginsburg's opinion is quite clear that no court may "decline to consider whether the statute under which the defendant has been charged lacks constitutional application to her conduct." Whether her opinion in this case is binding precedent is not particularly important, since the line of reasoning it employs is firmly based on binding precedent established by majority opinions in other cases. Therefore, the argument may be raised in the trial court, which answers the question.
    – phoog
    Feb 13, 2022 at 22:30


Yes the defendant can challenge the constitutionality of the law under which s/he is charged, or of the procedures that have been used at the trial court level. Indeed failing to raise such an issue will normally be taken as waiving the constitutional issue, so that it cannot be first raised in an appellate proceeding.

One example is the famous case of Gideon v. Wainwright, 372 U.S. 335 (1963). In the Supreme Court opinion, it is stated that:

Petitioner was charged in a Florida state court with having broken and entered a poolroom with intent to commit a misdemeanor. This offense is a felony under Florida law.

Appearing in court without funds and without a lawyer, petitioner asked the court to appoint counsel for him, whereupon the following colloquy took place:

The COURT: Mr. Gideon, I am sorry, but I cannot appoint Counsel to represent you in this case. Under the laws of the State of Florida, the only time the Court can appoint Counsel to represent a Defendant is when that person is charged with a capital offense. I am sorry, but I will have to deny your request to appoint Counsel to defend you in this case.

The DEFENDANT: The United States Supreme Court says I am entitled to be represented by Counsel.

Another example would be the case of Mapp v. Ohio, 367 U.S. 643 (1961) where the supreme court opinion, after discussing in detail the circumstances of the officers breaking into Mapp's dwelling, their search and her arrest, went on to say:

At the trial, no search warrant was produced by the prosecution, nor was the failure to produce one explained or accounted for. At best, "There is, in the record, considerable doubt as to whether there ever was any warrant for the search of defendant's home." 170 Ohio St. at 430, 166 N.E.2d at 389.

If one looks in detail into any case where the appellate courts, particularly the US Supreme Court, passed on the constitutionality of a law, one will normally find that an allegation of unconstitutionality was made at the trial level. This is not always mentioned in the court opinions, which generally devote little space to the proceedings of the trial court, except where these are themselves constitutionally significant. There will usually be a statement of the facts of the case, but this often stops before the trial.

Another example, not strictly speakign a criminal case, but one where people were directly threatened with criminal proceedings, and others had already suffered criminal convictions, was West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). In that case the Supreme Court's opinion said:

Failure to conform [ to the flag salute requirement] is "insubordination," dealt with by expulsion. Readmission is denied by statute until compliance. Meanwhile, the expelled child is "unlawfully absent," [Footnote 5] and may be proceeded against as a delinquent. [Footnote 6] His parents or guardians are liable to prosecution, [Footnote 7] and, if convicted, are subject to fine not exceeding $50 and Jail term not exceeding thirty days. [Footnote 8]

This establishes potential criminal liability of the parents. The decision went on to say:

Appellees, citizens of the United States and of West Virginia, brought suit in the United States District Court for themselves and others similarly situated asking its injunction to restrain enforcement of these laws and regulations against Jehovah's Witnesses. The Witnesses are an unincorporated body teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal government. Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5, which says:

Thou shalt not make unto thee any graven image, or any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not bow down thyself to them nor serve them.

They consider that the flag is an "image" within this command. For this reason, they refuse to salute it.

Children of this faith have been expelled from school and are threatened with exclusion for no other cause. Officials threaten to send them to reformatories maintained for criminally inclined juveniles. Parents of such children have been prosecuted, and are threatened with prosecutions for causing delinquency.

The Board of Education moved to dismiss the complaint, setting forth these facts and alleging that the law and regulations are an unconstitutional denial of religious freedom, and of freedom of speech, and are invalid under the "due process" and "equal protection" clauses of the Fourteenth Amendment to the Federal Constitution. The cause was submitted on the pleadings to a District Court of three judges. It restrained enforcement as to the plaintiffs and those of that class. The Board of Education brought the case here by direct appeal. [Footnote 9]

In short the constitutional issue was raised and decided at the level of the Federal District Court, a trial court, before the case was appealed to the Supreme Court.


That is not an allowed argument, so would be quashed by the judge. That does not mean that a defendant defending himself could not blurt out some such rant, but only the judge is allowed to address the matter of what the law is, and any such rant would be stricken from the record and the jury would be instructed to disregard the rant. And, of course, all laws are assumed to be constitutional. A motion to dismiss would almost certainly be denied (if the basis was the claim that the law is unconstitutional), but if the law were in fact unconstitutional, that motion (and dismissal) would be a foot in the doorway for having the law overturned on appeal.

Another way to get a law overturned is to sue the government in advance of being arrested, because you were harmed (prevented from exercising your rights). Heller is an example, where plaintiffs were harmed by infringement of their 2nd Amendment rights. This is somewhat different though from being convicted of a crime.

The determination that a law is unconstitutional is not decided in trial court.

  • What do you mean by "not an allowed argument"? For instance, there seem to be many instances where a federal district court (which is a trial court) ruled that a law was unconstitutional. I haven't yet found an instance where it happened in a criminal trial, but I don't know why it shouldn't be possible. Is there a written rule of court procedure forbidding such arguments? Feb 9, 2017 at 3:10
  • As a general rule, in trial courts, only the judge can speak to what the law is. It's only on appeal that you get to argue about constitutionality of laws.
    – user6726
    Feb 9, 2017 at 3:12
  • 6
    This is flatly incorrect. You absolutely can argue about the constitutionality of laws at the trial court level and indeed, you are required to do so in order to preserve the argument for appeal. Every trial court in the United States has the authority to declare that a law that it is asked to enforce is unconstitutional.
    – ohwilleke
    Feb 9, 2017 at 20:13
  • 1
    Criminal defendants can, and frequently do, challenge laws or procedure under them as unconstitutional at the trial level, and argue that point. The trial judge will accept or deny such arguments, jsut as with any other point raised during the trial. Final decisions to hold a law invalid are normally made on appeal, but what is being appealed is the trial judge's decision on constitutionality. Indeed failure to raise the issue at trial is often fatal to a later appeal, so a defendant is required to raise such issues at trial if at all. Feb 10, 2019 at 12:34
  • 3
    A truly bananas answer, wrong in virtually every sentence. If "only the judge is allowed to address the matter of what the law is," what exactly are the lawyers doing?
    – bdb484
    Aug 3, 2019 at 5:54

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