Vol. 7 No. 3 (March 1997) pp. 131-133.

INTELLECT AND CRAFT: THE CONTRIBUTIONS OF JUSTICE HANS LINDE TO AMERICAN CONSTITUTIONALISM edited by Robert F. Nagel. Boulder: Westview Press, 1995. 318 pp. Cloth.

Reviewed by Charles H. Sheldon, Department of Political Science, Washington State University

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.