Robert F Nagel - Intellect and Craft: The Contributions of Justice Hans Linde to American Constitutionalism

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Intellect and Craft

New Perspectives on Law, Culture, and Society

Robert W. Gordon and Margaret Jane Radin, Series Editors

Intellect and Craft: The Contributions of Justice Hans Linde to American Constitutionalism, edited by Robert F. Nagel

Failed Revolutions: Social Reform and the Limits of Legal Imagination, Richard Delgado and Jean Stefancic

Property and Persuasion: Normativity and Change in the Jurisprudence of Property, Carol M. Rose

Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment, Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado, and Kimberl Williams Crenshaw

Mind, Machine, and Metaphor: An Essay on Artificial Intelligence and Legal Reasoning, Alexander E. Silverman

Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice, Gerald P. Lpez

Wittgenstein and Legal Theory, edited by Dennis M. Patterson

Pragmatism in Law and Society, edited by Michael Brint and William Weaver

Feminist Legal Theory: Readings in Law and Gender, edited by Katharine T. Bartlett and Rosanne Kennedy

FORTHCOMING

The Philosophy of International Law: A Human Rights Approach, Fernando R. Tesn

Thinking Like a Lawyer, Kenneth J. Vandevelde

A Guide to Contemporary Legal Theory, edited by Robert W. Gordon and Margaret Jane Radin

Progressive Corporate Law, edited by Lawrence E. Mitchell

Lesbian and Gay Liberation: The Legal Controversies, Patricia Cain

Intellect and Craft

The Contributions of Justice Hans Linde to American Constitutionalism

Edited By
Robert F. Nagel

First published 1995 by Westview Press, Inc.

Published 2018 by Routledge
52 Vanderbilt Avenue, New York, NY 10017
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN

Routledge is an imprint of the Taylor & Francis Group, an informa business

Copyright 1995 Taylor & Francis

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

Notice:
Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.

Library of Congress Cataloging-in-Publication Data
Intellect and craft: the contributions of Justice Hans Linde to
American constitutionalism / edited by Robert F. Nagel
p. cm.(New perspectives on law, culture, and society)
Includes bibliographical references.
ISBN 0-8133-8576-8
1. United StatesConstitutional lawInterpretation and
construction. 2. Linde, Hans A., 1924 Contributions in
constitutional law. I. Nagel, Robert F. II. Series.
KF4550.A2I528 1995
342.7302dc20
[347.3022] 95-12255
CIP

ISBN 13: 978-0-367-00826-0 (hbk)

To the memory of J. Roland Pennock

Contents

Guide

Hans Linde is the author of some seventy scholarly contributions and hundreds of judicial opinions. This book pulls together from that large corpus those writings that are united by certain important themes about constitutional law, legal interpretation, and the judicial role. It is not, therefore, an effort to canvass Linde's many contributions, which cover topics as far apart as administrative law and arms control. Even on the themes that are the subject matter of this book, Linde has authored articles and judicial decisions that are not included here. Many of these are of extremely high quality and deserve attention, either as scholarly contributions or as legal precedent. Selections were made in part on the basis of my judgment about which writings would be most engaging and readable.

These objectives also controlled my editing decisions. Throughout, I tried to allow for the sustained development of Linde's complex and interconnected ideas on judging and constitutionalism. To allow space for this, I had to delete almost all footnotes from the theoretical writings that make up were not so long, but significant cuts were made in some of these other articles as well. My intention was to convert detailed scholarly articles into essays that might be read outside the academic community.

In contrast, the judicial decisions, which appear in , are not much changed. They retain their original form, the bulk of references to authority, and nearly all substantive analysis. (I did reduce some duplicative case citation, and I eliminated the most tangential of the legal analysis as well as some footnoted material.) I tried to keep the original form and content of the decisions because these writings are not only intellectual expositions; they are also the work product of jurists engaged in the highly structured task of adjudicating specific controversies.

Readers interested in a fuller appreciation of Linde's considerable erudition, as well as his capacity for both detail and nuance, should consult the original articles and cases from which the entries in this book are drawn.

A few words about organization: I tried throughout to arrange the material thematically rather than according to strict chronology. This means that in , he argues that at least some popular initiatives (for instance, certain anti-gay-rights proposals) are inconsistent with our republican form of government.

The judicial opinions that make up ).

One difficulty with the organization used here is that it might encourage the inaccurate impression that Linde finished all his theoretical writings and then went on to his judicial duties. In fact, of course, his career is not so neatly compartmentalized. Linde made scholarly contributions after working for many years on the bench, and he continues to do so. Hence, his practical work has influenced his theoretical proposals. This interpenetration of theory and practice is one of the aspects of his career that makes Linde's writings so intriguing. I have tried in my commentary to keep this point in front of the reader.

It was, of course, sometimes a cumbersome process to work through Uncle's many writings. The staff of the law library at the University of Colorado was, as always, patient and helpful during my protracted efforts. Jane Thompson, the research librarian, deserves special thanks as does Josh Widoff, my student research assistant. Another student, Caryn Walker, greatly assisted in the editing of the articles and cases. Her proofreading was meticulous and her suggestions perceptive. The secretaries at the University of Colorado Law School are superbly professional. They contributed immeasurably at every stage. My thanks to Anne Guthrie, Kim Clay, Kay Wilkie, Marge Brunner, and Cynthia Carter. I also want to thank the editors at Westview Press for all their work. Spencer Carr was patient when necessary and insistent when appropriate.

Bill Nagel and Bill Pizzi discussed with me some of the complexities involved in the criminal procedure cases. I appreciate their help. Over the years I have heard Hans Linde speak at various conferences and have enjoyed occasional opportunities to talk with him about his ideas and mine. He checked the biographical material included in the Introduction for factual errors. In addition, while the book was in the planning stages, he was good enough to offer a few suggestions about both organizational and substantive issues. He was also good enough to then leave me alone to do my work and to make my own decisions. Consequently, readers should not assume that Linde agrees with my selections, my editing, or any aspect of my commentary.

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