Constitutional Protections: Explicit And Implicit Safeguards

There are two types of constitutional protections: the first is that a defendant can challenge the constitutionality of a criminal statute or ordinance; the second is procedural, where the defendant can protest an unconstitutional procedure that occurs during prosecution. The first type of protection can be further broken down into two categories: unconstitutional on its face, and unconstitutional as applied. The former means that the wording of a statute is unconstitutional, while the latter means that the enforcement of a statute is unconstitutional. The federal Constitution is applicable in all criminal cases because the government is prosecuting, and state constitutions typically mirror the federal Constitution.

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Unconstitutional on its face

Constitutional protections refer to the basic protections guaranteed by the US Constitution. These protections are enshrined in the Bill of Rights. The two types of constitutional protections are:

A statute is unconstitutional on its face when its wording is unconstitutional. This means that the statute is invalid under any circumstances. For example, a defendant can challenge the constitutionality of a criminal statute or ordinance. These codified laws cannot conflict with or attempt to supersede the Constitution.

Unconstitutional as applied

A statute is unconstitutional as applied when its enforcement is unconstitutional. This means that the statute is only unconstitutional under certain circumstances. The defendant can protest an unconstitutional procedure that occurs during prosecution, including arrest, interrogation, search, filing of charges, trial, and appeal. The defendant can make a motion to dismiss the charges, suppress evidence, or declare a mistrial. They can also appeal and seek to reverse a conviction, among other remedies.

Unconstitutional as applied

A statute is deemed 'unconstitutional as applied' when its enforcement is unconstitutional. This means that the statute is only unconstitutional under certain circumstances. For example, a defendant can protest an unconstitutional procedure that occurs during prosecution, such as arrest, interrogation, search, filing of charges, trial, and appeal. The defendant can then make a motion to dismiss the charges, suppress evidence, or declare a mistrial. They can also appeal and seek to reverse a conviction, among other remedies.

Procedural protections

The specific procedures that are protected by constitutional law vary depending on the jurisdiction. However, in the United States, the federal Constitution guarantees certain basic protections, such as the due process clause, equal protection, and the fundamental protection of the First Amendment relating to speech, press, and religion.

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Due process clause

The two types of constitutional protections are:

• A defendant can challenge the constitutionality of a criminal statute or ordinance
• Procedural protection: the defendant can protest an unconstitutional procedure that occurs during prosecution

The Due Process Clause is a constitutional protection that applies to both natural persons, including citizens and non-citizens, as well as to "legal persons" (that is, corporate personhood). The Fifth Amendment's Due Process Clause was first applied to corporations in 1893 by the Supreme Court in *Noble v. Union River Logging R. Co*. The Due Process Clause also applies to non-citizens within the United States, although the U.S. Supreme Court has recognised that non-citizens can be stopped, detained, and denied past immigration officials at points of entry without the protection of the Due Process Clause.

The Fourteenth Amendment's Due Process Clause provides that no state may deprive any person of life, liberty, or property, without due process of law. This has been interpreted by the Supreme Court to provide protections that are similar to those of the Fifth Amendment's Due Process Clause, except that while the Fifth Amendment applies to federal government actions, the Fourteenth Amendment binds the states. The Fourteenth Amendment's Due Process Clause guarantees procedural due process, meaning that government actors must follow certain procedures before they may deprive a person of a protected life, liberty, or property interest.

The U.S. Supreme Court has interpreted the term "liberty" in the Due Process Clauses broadly. In *Bucklew v. Precythe*, the Supreme Court held that the Due Process Clause expressly allows the death penalty in the United States because "the Fifth Amendment, added to the Constitution at the same time as the Eighth, expressly contemplates that a defendant may be tried for a 'capital' crime and 'deprived of life' as a penalty, so long as proper procedures are followed".

There is some debate as to whether the Due Process Clause includes protections of substantive due process. Justice Clarence Thomas wrote that the Fourteenth Amendment's Due Process Clause is "not a secret repository of substantive guarantees against unfairness", while others, such as Justice Stephen J. believe that it does include protections of substantive due process.

Equal protection

Constitutional protection refers to the basic protections guaranteed by the US Constitution. These protections are enshrined in the Bill of Rights and include the due process clause, equal protection, and the fundamental protection of the First Amendment relating to speech, press and religion.

The Equal Protection Clause of the Fourteenth Amendment prohibits states from denying "any person within its jurisdiction the equal protection of the laws". This means that no state can treat people differently under the law based on their membership in a particular group, such as a racial group.

The Equal Protection Clause has been used to challenge laws that discriminate on the basis of race, gender, religion, and national origin. It has also been used to protect the rights of LGBTQ+ individuals, immigrants, and people with disabilities.

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