The Constitutional Right to a Treaty Preemption Defense

21 Pages Posted: 4 May 2009

See all articles by David L. Sloss

David L. Sloss

Santa Clara University - School of Law

Date Written: April 28, 2009


This article contends that the Due Process Clause grants criminal defendants in state court a right to challenge the validity of the state law authorizing criminal sanctions. This constitutional right includes the right to invoke any federal law, including federal treaty law, to support an argument that the state law is invalid. Moreover, when presented with such an argument, the state court has a constitutional duty to decide on the merits whether the treaty preempts the state law because the Constitution does not permit the government to impose criminal sanctions pursuant to an invalid law. In short, a criminal defendant in state court has an individual constitutional right, rooted in the Due Process Clause, to raise a treaty-based federal preemption defense. This right applies to any treaty provision that has the force of preemptive federal law, even if the relevant treaty does not itself create individual rights. This argument casts doubt upon the constitutional validity of several statutes implementing free-trade agreements that preclude criminal defendants from raising federal preemption defenses based on those treaties. The argument may also raise doubts about the constitutional validity of non-self-executing declarations attached to human rights treaties, depending upon how one interprets those declarations.

Keywords: treaties, constitutional rights, Due Process Clause, preemption

Suggested Citation

Sloss, David L., The Constitutional Right to a Treaty Preemption Defense (April 28, 2009). University of Toledo Law Review, Forthcoming. Available at SSRN:

David L. Sloss (Contact Author)

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

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