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Jurist Found Freedom in State Constitutions

Hans A. Linde ’47

August 31, 2020, in Portland, Oregon, of natural causes.

Recognized as one of the greatest jurists of the 20th century, Hans gained a national reputation during his tenure at the Oregon Supreme Court for advancing a radical intellectual argument—that fundamental civil liberties, particularly the right of free speech, could be grounded in state constitutions, as well as the federal constitution. 

This insight had a profound influence not only in the state of Oregon, but throughout the nation. Lawrence H. Tribe, a leading constitutional scholar and emeritus professor of constitutional law at Harvard University, called Hans a giant of the American judiciary, adding that  “His brilliant work both as a law professor and, for a little over a dozen years as a justice on Oregon’s highest court, addressed not just important issues of state law but also unsettled questions of federal constitutional law in a series of opinions, articles, and books that have been justly influential throughout the nation and ultimately the world, both because of the depth and originality of his thought and the resourcefulness of his historical research.”

Hans was born to a Jewish family in Germany. His father, Bruno Linde (pronounced “lindy”), was a Berlin lawyer; the family had a summer home in Copenhagen, Denmark. Following Hitler’s appointment as chancellor of Germany in 1933, Bruno instructed his wife, Luise, and his two sons, Hans and Peter Linde ’46, to remain in Denmark. In 1938, as tension in Europe continued to escalate, the Lindes boarded a Finnish freighter for New York. In New York, Bruno lashed the family’s belongings to the back of a Buick he purchased for $65, and the family headed out on a 19-day cross-country trip, searching for a home along the way. They ended up in Portland, where Luise found work in a department store while Bruno worked during the day and attended law school at night to earn his U.S. degree.

When he arrived in Portland, the 16-year-old Hans was taken aback by how little most people in Oregon seemed to know or care about what was going on in the world. His earliest memories included news accounts of the Japanese invasion of Manchuria in 1931 and the Spanish Civil War. His classmates at Lincoln High School shrugged at the battles between the fascists and the communists in Europe. 

“For most Americans, World War II is something that began at Pearl Harbor,” he recalled. “But for me, it was pretty clear early one of the important things in the 20th century was going to be international relations and civil liberties.”

Hans served in the U.S. Army during World War II. Following his service, he went to ºìÌÒÊÓƵ as a “day dodger,” along with his brother Peter and his future wife, Helen Tucker ’46, whom he married in 1945. 

At ºìÌÒÊÓƵ, they joined a tight-knit community of students from Germany and Austria, including Ernie Bonyhadi ’48, John Shipley ’49, Fred Rosenbaum ’50, and Frank Wesley ’50. Hans, Helen, Peter, and Ernie would commute from Northwest Portland to ºìÌÒÊÓƵ in an old Plymouth.

Majoring in political science, he wrote his thesis, “State, Sovereignty, and International Law: A Study of Three German Legal Theories,” advised by Prof. Maure Goldschmidt [political science 1935–81], who served as a mentor to many students. 

After graduating from ºìÌÒÊÓƵ, he moved on to law school at UC Berkeley, where he became editor of the law review and was awarded the Order of the Coif, an honor to law students similar to that of election to Phi Beta Kappa. His outstanding performance earned him a clerkship with Justice William O. Douglas of the Supreme Court of the United States.

Hans took a job as an attorney in the Office of the Legal Adviser to the Department of State, which advised the U.S. delegation to the United Nations. He returned to Portland and was asked to help in the U.S. Senate campaign of Richard L. Neuberger. When Neuberger was elected, Hans became his legal assistant and administrative aide in Washington, D.C.

In 1959, he began teaching constitutional law at the University of Oregon and authored a widely used textbook. During his 17 years at the U of O, Hans was twice named a Fulbright professor, lecturing at universities in Germany. He was a visiting professor at Stanford and UC Berkeley, where students found him brilliant and challenging. “His has been a very original mind,” said  David Frohnmayer, one of his students at UC Berkeley, who went on to become Oregon attorney general and president of the University of Oregon.

In 1977, Governor Robert Straub appointed Hans to the Supreme Court of Oregon. A passionate intellectual, he took an analytic, professorial, and sometimes relentless approach to the job of being a justice. His years on the court were marked by the preference he gave to state law over federal law, and he gained a national reputation as a champion of civil liberties. His opinions consistently sought to hold police powers in check, and during his 13-year tenure on the court, he was the state’s most controversial justice.

“Hans was, by far, the most nationally prominent Oregon law professor or judge ever,” said Tom Balmer, former chief justice of the Oregon Supreme Court. “Hans thought broadly and creatively. He looked at things from different perspectives.”

Even as a law professor, Hans had advocated using state constitutions as protectors of liberty. “State constitutions allow the people of each state to choose their own theory of government and way of law, within what the nation requires, to take responsibility for their own liberties, not only in courts but in the daily practice of government,” he wrote in 1984.

In 1978, Dwight Robertson, a University of Oregon football player, and three other teammates were accused of a shocking act of cruelty: they pressured a female student into performing sexual favors by claiming to have compromising photos of her (photos which did not actually exist). Robertson was charged with coercion, but he challenged the charge, claiming that Oregon’s statute against coercion was invalid because it violated Oregon’s constitution. That claim made its way to the Oregon Supreme Court, where it was up to the justices to determine whether Robertson was right about the law—not whether his behavior was acceptable.

In deciding such matters, lawyers and judges routinely turned to the U.S. Constitution’s First Amendment: “Congress shall make no law . . . abridging the freedom of speech or of the press.” But Hans had long realized that while the federal constitution acts as a kind of “floor” that sets the rights of all citizens, state constitutions often provide stronger rights.

Article 1, Section 8 of the Oregon Constitution states: “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”

The answer in the Robertson case was clear to Hans and his colleagues. The coercion statute clearly was aimed at speech, prohibiting threatening people in certain ways, and thus was vulnerable to being found unconstitutional. The statute could pass muster only if it met one of the two tests: it prohibited acts considered crimes when the Oregon Constitution was written or if the statute was written in terms solely addressing the ill effects of coercion. Neither was the case. Thus, Hans reasoned in his unanimous opinion, the statute amounted to government censorship and was unconstitutional.

The Robertson case laid out a new framework for deciding free-speech cases. Until then, few lawyers or judges had grasped that state constitutions could provide extra breathing room for citizens. Hans was catapulted into the national spotlight. His insight led other state courts to adopt a similar methodology and was used to secure Oregonians more protection from police searches, force businesses to provide the same benefits to gay couples as they do to married ones, and win gun owners more freedom from government regulation.

 His judicial opinions and scholarly writings profoundly shaped Oregon law. Governor Kate Brown called him “the ‘intellectual godfather’ of the revival of state constitutional law, a pioneer of Oregon’s constitutional doctrines governing the rights of prisoners, search and seizure, equality of treatment, and free expression, to name just a few.”

Rex Armstrong, an appellate judge on the Oregon Court of Appeals who once clerked for Hans said that his “ability to have looked at something in a different way led to the insight that he had.”

After retiring from the court in 1990, Hans taught at Willamette University. He was a member of the American Law Institute and a Fellow of the American Academy of Arts and Sciences. In 1997, ºìÌÒÊÓƵ awarded him the Foster-Scholz Distinguished Service Award, given to ºìÌÒÊÓƵ alumni who have made major contributions to the community. He also was awarded the E.B. MacNaughton Award by the American Civil Liberties Union of Oregon. The award is named for MacNaughton, a longtime trustee and former president of ºìÌÒÊÓƵ.

Hans is survived by his wife, Helen, his son, David, and his daughter, Lisa.

Appeared in ºìÌÒÊÓƵ magazine: December 2020