Robert Nagel has brought together a collection of writings and case opinions of Justice Hans A. Linde. Judge Richard A.
Posner called Linde "one of the outstanding judges ... of the entire post-World War II era...." and Laurence Tribe agreed,
writing that Linde was among "the most distinguished state court judges in the 20th Century." Justice Linde's experience is wide
and his knowledge of things political and legal is deep. He served in all three branches of the federal government as a lawyer
with the State Department, a legislative assistant to Senator Richard Neuberger and a law clerk for William O. Douglas. For
years he was a law professor at the University of Oregon Law School, and he served 13 years as a Justice on the Oregon
Supreme Court. Justice Linde is known to us for his advocacy and application of "new judicial federalism," but this collection
clearly illustrates his diverse contributions to jurisprudence generally. It is unfortunate that he isn't more widely known to
political scientists but this collection may help correct that oversight.
Robert Nagel organizes the collection around theory and practice. The first part of the collection reprints theoretical works
selected from Linde's numerous journal and law review articles (he wrote over 70). The theoretical essays discuss the
confrontation between the welfare state and constitutional rights, the realist tradition, courts and censorship, due process of
lawmaking, state constitutions, the essentials of a republican form of government, and the initiative process. Nagel attempts to
bridge from the theoretical to the practical in the second part with excerpts from Justice Linde's opinions written while on
Oregon's high bench. The opinions, majority and dissenting, confront issues of free speech, rights of public employees, equal
protection, privacy, fair trial and the limits of judicial power.
The collection is not an easy read, but worth the effort it requires. Perhaps meshing theory with practice would have been better
accomplished if each essay had been followed immediately with its companion opinion. Nagel does provide helpful but brief
introductions to each piece, placing it within the context of the Justice's thinking.
Throughout the essays, Linde's commitment to federalism, representative government, individual rights, textualism and
contextualism becomes evident. The common thread holding these commitments together is what Nagel calls the "jurisprudence
of situated realism." Nagel attributes to Linde a "textual" and "contextual" decisional mode.
The more judges are bound by the content of words, the less they are required to engage in freewheeling review of the
wisdom of legislative policies. The more their decisions can be based on the meaning of rules, the less judges are free to
balance whatever 'factors' occur to them. The more their explanations can refer to authoritative text, the less judges need
the kind of elaborate doctrines that have come in modern times to stand in the place of text. (p.6)
The textual approach, according to Nagel, moves Linde toward new judicial federalism. The "more seriously judges must take
each legal text, the less uniform interpretations will become across this nation of separate states."(p.6)
Linde urges a form of judicial restraint for federal judges but an activist role for state judges. Linde would have the Justices of
the U.S. Supreme Court move away from artificial formulae they have created (e.g., "bad tendency" or "overriding danger") to
guide courts and move toward experience- based and locally-focused standards designed to guide lawmakers. Judges should
provide legislators with clear standards indicating what is required to assure the legislation coincides with the constitution, rather
than creating flexible tests to help courts to determine the constitutionality of legislation. Further, the wisdom of public policies is
not to be evaluated by judges. They should only look at how those policies were enacted. Due process should remain a
procedural question.
Debates in the public forum over constitutional issues should be concerned with what the legislatures can do rather than what
courts should do as they exercise judicial review. If wiretapping threatens freedom, the House of Representative is better
situated to legislate redress than are the courts.
In order to protect individual freedoms in a welfare state, Linde would have courts focus on the impact of government
regulation on the individual and society rather than on how the regulation is imposed. Attention should be centered on "results
rather than formulas, on consistency of doctrine with respect to categorical constitutional values rather than categories of
government action." (p.21)
Justice Linde's activism flows from his advocating that state courts exercise review based on "adequate and independent state
grounds." It is unfortunate that Nagel did not include Justice Linde's "First Things First, Rediscovering the States' Bills of
Rights," (Linde 1980) or his "E Pluribus: Constitutional Theory and State Courts." (Linde 1984) in this collection. Either of
these would help us better to understand his "primacy" or self-reliance" theory of new federalism which permits states to
overcome the uniformity imposed by the U.S. Supreme Court. State judges should not presume that federal law and precedent
are correct. They should look first at their own state constitutions as the primary source for rights, relying on the constitutional
wording within the context of state history, state doctrine and state governmental structure. Only if those guides fall short of
federal standards should judges turn, reluctantly, to the U.S. Supreme Court's versions of rights.
In the edited reprints of CITY OF PORTLAND V. TIDYMAN (1988) and in COOPER V. EUGENE SCHOOL
DISTRICT NO.4 (1986) Justice Linde does indeed begin and end with a careful analysis of the text of the Oregon Constitution
which, in TIDYMAN, "explains why we depart from the direction taken by the United States Supreme Court under the First
Amendment." (p.168) Also, it was clear that the religion clauses of the Oregon Bill of Rights prevail over the First Amendment
of the Federal Bill of Rights in COOPER. Linde writes that the Oregon clauses "are specifications of a larger vision of freedom"
and the guarantees are "more numerous and more concrete than the opening clause of the First Amendment...." (p.142)
A republican form of government means, of course, representative government. The challenge to this principle by the increased
use of the initiative process, especially in Oregon and other Western states, troubles Justice Linde. Missing from law making by
popular vote are committee study, hearings, amendments, and compromises which are built into the legislative process. Since
PACIFIC STATES TEL AND TEL, the burden for invoking the guaranty clause falls on state courts and officials. Linde
reluctantly accepts the initiative, referendum and recall forms of direct democracy as part of a republican form, largely because
of early state court decisions. However, some popular measures require close scrutiny by state officials and judges. The "design
of republican government" does not permit some "policies to be put to statewide plebiscite," bypassing the deliberative process.
(p.130) But judges and legislators need guidance in separating those invidious measures that address popular passions from
those that, although disputed, are legitimate subjects for initiatives. To Linde, it is a difference between "passion" and "interest."
Initiatives that do not qualify as legitimate republican measures are those that appeal to public passions and would be rejected if
subjected to an evaluation and screening by the legislative process. Linde suggests five categories of popular initiatives that are
not protected under the guaranty clause. Each of the five deprive a minority group of rights enjoyed by the majority. For
example, this includes measures that "refer to any group of individuals in pejorative or stigmatizing terms," or "exalts on group
over others" or are "directed against identifiable racial, ethnic, linguistic, religious or other social groups."(p.134) What keeps
these popular initiatives outside the protections of a republican form of government, according to Linde, is not that they are
enacted directly but rather that the motive behind the them is to bypass the legislative process in order to "address popular
passion."(p.129) The founders, especially Madison, saw republican government guarding "one part of society against the
injustice of the other part."(p.128) The structure of the new republican government was the guarantee. For example, the Senate
would assure that the "cool and deliberate sense of the community" would be given questionable legislation. (p.128). In a
republic, for Linde, process replaces passion. (However, see his dissent in OREGON V. WAGNER. [p.295])
In commenting on Chief Justice Stone's draft opinion in U.S. v DARBY, Justice Felix Frankfurter wrote: "This is a grand
pudding. There are so many luscious plums in it that it is invidious to select." So also is it with these selections of Justice Hans
Linde. Nagel's collection should compel us to look more closely at the challenges Justice Linde presents to our thinking about
judges and constitutions.
References
Linde (1980) "First Things First: Rediscovering States' Bills of Rights," U. Baltimore Law Review 9: 379.
Linde (1984) "E Pluribus--Constitutional Theory and State Courts," Georgia Law Review 18: 165.
