The Internationalism of Justice Harry Blackmun

Abstract:     
Justice Harry Blackmun has been described as willful, liberal, conservative, humble, and a White Anglo-Saxon Protestant Republican Rotarian Harvard Man from the Suburbs. One adjective that is conspicuously missing is internationalist. Internationalism is, in part, reflected in Blackmun's preference change or shift from relatively conservative to relatively liberal. At the same time, Blackmun's internationalism defies most traditional judicial typologies. That Blackmun as internationalist has been a minor theme in the academic literature is understandable given the small number of cases concerning international or transnational legal questions that reach the Court. Nonetheless, an examination of those opinions, as well as of Justice Blackmun's best known outside writing and speaking, uncovers his somewhat surprising and arguably influential internationalist turn.

This comment provides a roadmap for closer examination of the Blackmun Papers and evaluates the sources of internationalism in Blackmun's opinions as manifested in four separate but related jurisprudential approaches: (1) in federalism questions, deferring to the federal political branches' ordering of international economic and political relationships; (2) adopting a view of globalization that preferences international and/or foreign-based approaches to ordering private economic and business relations; (3) interpreting treaty obligations according to globally accepted international law interpretation doctrines; and (4) respecting and acknowledging international and foreign judicial opinions in constitutional jurisprudence. An understanding of these approaches can usefully inform typologies of internationalism among other Justices, past, present, and future.

Number of Pages in PDF File: 21

Keywords: Blackmun, international law, foreign law, supreme court, jurisprudence

JEL Classification: K10, K33

Accepted Paper Series