Document Type


Publication Date

Summer 2009


The Constitution includes several provisions specifically designed to protect criminal defendants. For example, the Fourth Amendment prohibits "unreasonable searches and seizures," the Sixth Amendment guarantees that criminal defendants have a right to legal representation, and the Eighth Amendment prohibits cruel and unusual punishments. The Constitution' s Founders recognized that state power is at its apex when the state threatens individuals with criminal sanctions. Accordingly, they adopted special constitutional rules to protect "the individual defendant from the awesome power of the State."

The Due Process Clause provides critical protection for criminal defendants; it stipulates that no State shall "deprive any person of life, liberty, or property,without due process of law." The Due Process Clause guarantees all criminal defendants the right to defend themselves against criminal charges filed by the state. But how far does that right extend? In this article I contend that, for a criminal defendant in state court, the right to mount a defense includes a right to challenge the validity of the state law that authorizes criminal sanctions. Moreover, a criminal defendant who challenges the validity of a state penal law has a constitutional right to invoke any federal law, including federal treaty law, to support his argument that the state law is invalid. Finally, a state court may not impose criminal sanctions on such a defendant without first deciding that thestate law at issue is valid. In short, a criminal defendant in state court has an individual constitutional right, rooted in the Due Process Clause, to raise a treatybased 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.

The remainder of this article has four parts. Part II explains why

Ex parte Young and its progeny are relevant to the central constitutional question posed in this article. Part III demonstrates that NAFTA' s key substantive provisions have the force of preemptive federal law within the U.S. legal system. The analysis supporting this conclusion rests primarily, but not exclusively, on statutory interpretation of NAFTA's implementing legislation. Part III also contends that § 3312(b)(2) of the NAFTA Implementation Act is unconstitutional, insofar as it purports to preclude a state court from deciding the merits of a properly raised federal preemption defense. Given that NAFTA has the force of preemptive federal law, part IV shows that § 3312( c) of the NAFTA Implementation Act is unconstitutional where it may preclude a defendant in a state criminal trial from invoking NAFTA to support an argument that the treaty preempts the state law authorizing penal sanctions. Although the analysis in parts III and IV focuses on NAFTA, the implications are much broader because the arguments apply equally to comparable provisions in implementing legislation for other free-trade agreements.



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