Bryan H. Wildenthal
Professor of Law
Welcome to my Professional Homepage! It includes some brief biographical
information, my courses and areas of scholarly interest,
links to various law-related websites that I find of interest
(and that you may also), and some of my favorite quotations
on law and public policy. Links to subpages within my Homepage
are also indicated below, and provide some additional information.
I graduated from Stanford University
in 1986 and received my law degree in 1989 from Stanford Law School. After law
school I clerked for Judge Frank M. Johnson, Jr. of the
United States Court of Appeals for the Eleventh Circuit in
Montgomery, Alabama, and then for Chief Justice Michael F. Cavanagh
of the Michigan Supreme Court in Lansing, Michigan. I practiced
law for two years with Wilmer, Cutler & Pickering (now known
as WilmerHale) in Washington,
D.C., before joining the faculty of IIT Chicago-Kent College of Law for
a two-year visiting appointment. I then joined the faculty of Thomas
Jefferson School of Law (TJSL), in San Diego, in 1996.
At TJSL, I currently teach Constitutional Law, American Indian Law,
and Federal Courts & Jurisdiction. My scholarly interests mainly
focus on constitutional law (with an increasing interest in
legal history), American Indian law, and sexual identity law.
My first book was published in 2003 by ABC-CLIO:
Native American Sovereignty on Trial
(click
here for more information, but please note that Amazon.com is mistaken
in describing me only as the "editor"; the latter half of the book does
consist mostly of cases and other documentary materials that I edited, but
the first half is original text of which I am the sole author). This book
provides a legal and historical overview and analysis of the relationship
between the United States Government, the 50 state governments, and the hundreds
of American Indian Nation ("tribal") governments.
My second book, Nationalizing
the Bill of Rights: The Rise, Fall, and Rise of the Fourteenth
Amendment Incorporation Doctrine, remains a longterm
project. I have decided to first publish key parts of it as a series of
law review articles. This project, so far, consists of three major articles
published in the Ohio State Law Journal, the first two in 2000
(available here and here), and the latest in 2007
(available here). All three
analyze aspects of the long historical process, from 1866 to the
present day, by which most liberties guaranteed in the Bill of
Rights (ratified in 1791 and originally applicable only to the U.S.
federal government) have been applied as limitations on state and
local governments.
For more information about my professional background, writings, and activities,
see my vita or my Social Science Research Network (SSRN)
Author Page.
Among the proudest and most rewarding experiences of my life were my two
judicial clerkships. One of my law school professors,
John Hart Ely, commented in the dedication of his book Democracy
and Distrust, in reference to Chief Justice Earl Warren (for
whom he clerked), that "you don't need many heroes if you choose
carefully." I can only say the same with regard to Judge Johnson
and Justice Cavanagh. Following are links to some photos and
text relating to my clerkships with them.
If you want to explore "Law on
the Web," here are some useful legal research sources on the
Internet:
- FindLaw (the best all-around
legal resource on the Internet)
- Thomas
(the official on-line source for U.S. Congressional legislation
and legislative history, named, naturally, after Thomas Jefferson)
- Jurist (click your way to information
about law schools and the insights of legal scholars nationwide)
- Balkinization
(a great legal blog moderated by Yale Law School Professor Jack M. Balkin,
which has posted some of the most powerful critiques anywhere of the
Bush regime's abuses of the rule of law and constitutional rights)
I'M ONE OF THE ORIGINAL FANS OF *THE* INTERNET SEARCH ENGINE!
Here are links to some law- and public policy-related organizations whose
goals I generally support:
Finally, here are some of my favorite quotations on matters relating to
law and public policy:
"To waste, to destroy, our natural resources, to skin and exhaust the
land instead of using it so as to increase its usefulness, will result in
undermining in the days of our children the very prosperity which we ought
by right to hand down to them amplified and developed."
- President Theodore Roosevelt (1907)
"Under our constitutional system, courts stand against
any winds that blow as havens of refuge for those who might
otherwise suffer because they are helpless, weak, outnumbered,
or because they are non-conforming victims of prejudice and
public excitement.... No higher duty, no more solemn responsibility,
rests upon this Court, than that of translating into living
law and maintaining this constitutional shield deliberately
planned and inscribed for the benefit of every human being subject
to our Constitution - of whatever race, creed or persuasion."
- Justice Hugo L. Black, for the
U.S. Supreme Court, in Chambers v. Florida (1940)
(throwing out the "sunrise confession" of an African-American
man interrogated by police all night long without food or sleep)
"Originally the Indian tribes were
separate nations within what is now the United States.
Through conquest and treaties they were induced to give up complete
independence and the right to go to war in exchange for federal
protection, aid, and grants of land.... Around 1830 the Georgia Legislature
extended its laws to the Cherokee Reservation despite federal treaties
with the Indians which set aside this land for them.... Rendering one
of his most courageous and eloquent opinions, Chief Justice [John] Marshall
held [in Worcester v. Georgia (1832)] that Georgia's assertion
of power was invalid.... Despite bitter criticism and the defiance of
Georgia which refused to obey this Court's mandate ... the broad principles
of that decision came to be accepted as law.... Congress has ... acted
consistently upon the assumption that the States have no power to
regulate the affairs of Indians on a reservation.... The cases in
this Court have consistently guarded the authority of Indian governments
over their reservations. Congress recognized this authority in
the Navajos in the [Navajo-U.S.] Treaty of 1868, and has done so ever
since."
- Justice Hugo L. Black, for the
U.S. Supreme Court, in Williams v. Lee (1959) (rejecting
Arizona state jurisdiction over a civil lawsuit against
a Navajo Indian arising out of a dispute within the Navajo Nation)
"[I]t seems basic to our constitutional
principles that the extent of the right to assemble, demonstrate
and march peaceably along the highways and streets in an
orderly manner should be commensurate with the enormity of the
wrongs that are being protested and petitioned against. In this
case, the wrongs are enormous."
- Judge Frank M. Johnson, Jr., in
Williams v. Wallace (1965) (ordering Alabama Gov. George
Wallace, a law school classmate of Judge Johnson at the University
of Alabama, to allow the voting-rights march from Selma to
Montgomery by Rev. Martin Luther King, Jr. and thousands of others)
"[T]he Fourteenth Amendment means
what it says: All persons within the jurisdiction of a state
are entitled to the equal protection of the laws of that state....
[Texas] ignore[s] the realities underlying the plaintiff children's
status as illegal aliens. The plaintiffs undeniably stand in violation
of federal law, but certainly they have committed no moral wrong.
As children they are under the actual and legal control of their
parents. To suggest that [they] are being excluded from education
for their own illegal actions places form over substance."
- Judge Frank M. Johnson, Jr., for
the U.S. Court of Appeals, in Plyler v. Doe (1980)
(striking down as unconstitutional Texas's exclusion of illegal
immigrant children from the public schools; Judge Johnson's ruling
was upheld by the U.S. Supreme Court in 1982)
"The Georgia sodomy statute infringes
upon the fundamental constitutional rights of Michael
Hardwick.... The Constitution prevents the states from unduly
interfering in certain individual decisions critical to personal
autonomy because those decisions are essentially private and beyond
the legitimate reach of a civilized society.... [T]he marital
relationship is ... significant because of the unsurpassed opportunity
for mutual support and self-expression that it provides.... For
some, the sexual activity in question here serves the same purpose
as the intimacy of marriage.... The activity [Michael Hardwick] hopes
to engage in is quintessentially private and lies at the heart of an
intimate association beyond the proper reach of state regulation."
- Judge Frank M. Johnson, Jr., for
the U.S. Court of Appeals, in Bowers v. Hardwick
(1985) (subjecting to strict scrutiny, thus effectively striking
down as unconstitutional, a Georgia law criminalizing certain
forms of lovemaking between consenting adults; Judge Johnson's
ruling was reversed on appeal, 5-4, by the U.S. Supreme Court
in 1986, but the Supreme Court later overruled itself in Lawrence
v. Texas (2003), quoted below; sadly, Judge Johnson did not live
to see this vindication of his 1985 ruling, since he died in 1999)
"Although judges and lawyers may
understand and appreciate the subtle distinctions between
the Fifth and Sixth Amendment rights to counsel, the average
person does not. When an accused requests an attorney, either
before a police officer or a magistrate, he does not know which
constitutional right he is invoking .... It makes little sense
to afford relief from further [police] interrogation to a defendant
who asks a police officer for an attorney, but permit further [police]
interrogation of a defendant who makes an identical request to a
judge. The simple fact that defendant has requested an attorney
indicates that he does not believe that he is sufficiently capable
of dealing with his adversaries singlehandedly.... The police cannot
simply ignore a defendant's unequivocal request for counsel."
- Justice Michael F. Cavanagh, for
the Michigan Supreme Court, in Michigan v. Bladel and
Jackson (1984) (holding that police cannot persist in questioning
a criminal suspect once he has invoked his Sixth Amendment right
to counsel; the U.S. Supreme Court affirmed Justice Cavanagh's
ruling in 1986, quoting with approval the passage above)
"It is time to heal America....
[L]ook beyond the stereotypes that blind us. We need each
other. All of us, we need each other. We don't have a person
to waste. And yet, for too long, politicians have told the most
of us that are doing all right that what's really wrong with America
is the rest of us. 'Them.' 'Them' the minorities, 'them' the liberals,
'them' the poor, 'them' the homeless, 'them' the people with disabilities,
'them' the gays. We've gotten to where we've nearly 'themmed' ourselves
to death.... But this is America. There is no 'them.' There is only
us."
- Arkansas Governor Bill Clinton
(July 16, 1992) (accepting the Democratic nomination for
President of the United States)
"I want to make it very clear that
I oppose the ... so-called compromise ... also known
as the 'don't ask, don't tell, don't pursue policy.' [It]
is not a compromise at all, but rather ... a blind capitulation
to our most base fears.... I ask you, what could be more of
a risk to the armed forces' high standards of morale, good order,
discipline, and unit cohesion than its own valuable and otherwise
loyal service members forced by it to lie in order to serve, forced
to hide to live a full life, forced to undermine a system totally
dependent upon trust in order to preserve their dignity?"
- Senator Russell Feingold,
Democrat of Wisconsin (September 9, 1993) (speaking on
the Senate floor against codification of the ban on gays in the
military)
"There are gays in the military
today. There will be gays in the future. They have fought
with distinction and served with distinction all through the
past. They are in every institution in America. They are part of
the class of American society. What Congress will do by codifying
[the military gay ban] is to, in effect, deny them the full measure
of their citizenship."
- Senator John F. Kerry,
Democrat of Massachusetts and decorated combat veteran of the Vietnam
War (September 9, 1993) (speaking on the Senate floor against
codification of the ban on gays in the military)
"This bill seeks to divide our
nation, turn Americans against Americans, sow the seeds of
fear, hatred, and intolerance.... This bill is a slap in
the face of the Declaration of Independence. It denies gay men
and women the right to liberty and the pursuit of happiness. Marriage
is a basic human right. You cannot tell people they cannot fall
in love. Dr. Martin Luther King, Jr. used to say when people talked
about interracial marriage and I quote, 'Races do not fall in love and
get married. Individuals fall in love and get married.' Why do you
not want your fellow men and women, your fellow Americans, to be
happy? Why do you attack them? Why do you want to destroy the love
they hold in their hearts? Why do you want to crush their hopes, their
dreams, their longings, their aspirations? We are talking about human
beings, people like you, people who want to get married, buy a house,
and spend their lives with the one they love. They have done no wrong.
I will not turn my back on another American. I will not oppress my fellow
human being. I have fought too hard and too long against discrimination
based on race and color not to stand up against discrimination based on
sexual orientation.... I have known racism. I have known bigotry. This
bill stinks of the same fear, hatred, and intolerance.... I urge my
colleagues to oppose this bill, to have the courage to do what is right....
Let us come together and create one nation, one people, one family,
one house, the American house, the American nation."
- Representative John Lewis,
Democrat of Georgia (July 11, 1996) (speaking on the House
floor against the so-called "Defense of Marriage Act," later
signed into law by President Clinton, which denies federal recognition,
and authorizes any state to deny recognition, to any same-sex
marriage; Congressman Lewis, an African-American hero of the
civil rights movement, repeatedly endured violent physical assault
while peacefully pursuing the cause of racial justice during such
historic events as the "Freedom Rides" of 1961 and the "Bloody Sunday"
voting rights march in Selma in 1965; he has never forgotten the lessons
he learned in that struggle, and he continues to show grace and courage
in working for equal rights and justice for all)
"[W]e cannot accept the view that
[Colorado's anti-gay] Amendment 2's prohibition on specific
legal protections [for gays and lesbians] does no more than
deprive homosexuals of special rights. To the contrary, the
amendment imposes a special disability upon those persons alone....
We find nothing special in the protections Amendment 2 withholds.
These are protections taken for granted by most people either because
they already have them or do not need them; these are protections
against exclusion from an almost limitless number of transactions
and endeavors that constitute ordinary civic life in a free society....
Amendment 2, ... in making a general announcement that gays and
lesbians shall not have any particular protections from the law,
inflicts on them immediate, continuing, and real injuries that outrun
and belie any legitimate justifications that may be claimed for it....
A state cannot so deem a class of persons a stranger to its laws."
- Justice Anthony M. Kennedy, for
the U.S. Supreme Court, in Romer v. Evans (1996)
"Vermont's history as
an independent republic and as a state is one of equal treatment
and respect for all Vermonters. This tradition is embodied
in the Common Benefits Clause of the Vermont Constitution,
Chapter I, Article 7th.... The state's interest in civil marriage
is to encourage close and caring families .... The state has a strong
interest in promoting stable and lasting families, including
families based upon a same-sex couple.... Without the legal protections,
benefits and responsibilities associated with civil marriage, same-sex
couples suffer numerous obstacles and hardships.... Despite longstanding
social and economic discrimination, many gay and lesbian Vermonters
have formed lasting, committed, caring, and faithful relationships
with persons of their same sex. These couples live together, participate
in their communities together, and some raise children and care
for family members together, just as do couples who are married under
Vermont law.... While a system of civil unions does not bestow the status
of civil marriage, it does satisfy the requirements of the Common
Benefits Clause.... The purpose of this act is to ... provide eligible
same-sex couples the opportunity to obtain the same benefits and
protections afforded by Vermont law to married opposite-sex couples
as required by Chapter I, Article 7th of the Vermont Constitution."
"We seek the great restoration of American values
and the restoration of our nation's traditional purpose in the
world.... This campaign is about more than issue differences on health
care, tax cuts, national security, jobs, the environment, and our
economy. It is about something as important as our children. It's about
who we are as Americans. Here are the words of John Winthrop: 'We shall
be as one. We must delight in each other, make others' conditions our
own; rejoice together, mourn together, labor and suffer together,
always living before our eyes our commission and community in our work.'
It is that ideal, the ideal of the American community, that we seek
to restore.... [W]e stand today in common purpose to take our country
back."
- Vermont Governor Howard Dean (June 23, 2003) (declaring his
candidacy for President of the United States)
"[W]hen I was a junior in high school, John Kennedy
called my generation to service. It was the beginning of a great journey,
a time to march for civil rights, for voting rights, for the environment,
for women, and for peace. We believed we could change the world.
And you know what? We did. But we're not finished. The journey isn't
complete. The march isn't over. The promise isn't perfected. Tonight,
we're setting out again.... So much promise stretches before us. Americans
have always reached for the impossible, looked to the next horizon,
and asked: What if? ... A young president asked: What if we could go
to the moon in ten years? And now we're exploring the solar system and
the stars themselves.... And now it's our time to ask: What if?"
- Senator John F. Kerry
(July 29, 2004) (accepting the Democratic nomination for President of the
United States)
[O]ur laws and tradition afford constitutional protection
to personal decisions relating to marriage, procreation, contraception,
family relationships, child rearing, and education.... 'These
matters, involving the most intimate and personal choices a person
may make in a lifetime, choices central to personal dignity and
autonomy, are central to the liberty protected by the Fourteenth Amendment.
At the heart of liberty is the right to define one's own concept of
existence, of meaning, of the universe, and of the mystery of human
life....' Persons in a homosexual relationship may seek autonomy for
these purposes, just as heterosexual persons do. The decision in Bowers
[see above] would deny them this right.... Bowers was not correct
when it was decided, and it is not correct today. It ought not to remain
binding precedent. Bowers v. Hardwick should be and now is overruled....
The petitioners [two gay men] are entitled to respect for their private
lives. The State cannot demean their existence or control their destiny
by making their private sexual conduct a crime."
- Justice Anthony M. Kennedy, for the U.S. Supreme Court, in
Lawrence v. Texas (June 26, 2003)
"Marriage is a vital social institution. The
exclusive commitment of two individuals to each other nurtures
love and mutual support; it brings stability to our society. For
those who choose to marry, and for their children, marriage provides
an abundance of legal, financial, and social benefits. In return
it imposes weighty legal, financial, and social obligations. The question
before us is whether, consistent with the Massachusetts Constitution,
the Commonwealth [of Massachusetts] may deny the protections, benefits,
and obligations conferred by civil marriage to two individuals of the
same sex who wish to marry. We conclude that it may not. The Massachusetts
Constitution affirms the dignity and equality of all individuals. It
forbids the creation of second-class citizens.... [Massachusetts] has
failed to identify any constitutionally adequate reason for denying civil
marriage to same-sex couples."
- Chief Justice Margaret Marshall, for the Massachusetts Supreme
Judicial Court, in Goodridge v. Massachusetts Department of
Public Health (November 18, 2003)
"[R]etaining the designation of marriage
exclusively for opposite-sex couples and providing only a separate and distinct
designation ['domestic partnership'] for same-sex couples may well have the
effect of perpetuating a more general premise -- now emphatically rejected
by this state -- that gay individuals and same-sex couples are in some respects
'second-class citizens' who may, under the law, be treated differently from,
and less favorably than, heterosexual individuals or opposite-sex couples.
Under these circumstances, we cannot find that retention
of the traditional definition of marriage
constitutes a compelling state interest. Accordingly, we conclude that to
the extent the current California statutory provisions limit marriage to opposite-sex couples, these
statutes are unconstitutional. ... There can be no question but that, in
recent decades, there has been a fundamental and dramatic transformation in
this state's understanding and legal treatment of gay individuals and gay
couples. California has repudiated past practices and policies that were based
on a once common viewpoint that denigrated the general character and morals
of gay individuals, and at one time even characterized homosexuality as a
mental illness rather than as simply one of the numerous variables of our
common and diverse humanity."
- Chief Justice Ronald M. George, for the California Supreme Court,
in In re Marriage Cases (May 15, 2008)
"Who can give law to lovers? Love is a greater law to itself."
- Anicius Manlius Severinus Boethius
(A.D. 480-524), in De Consolatione Philosophiae
Excerpts from former Vice-President Al Gore's
speech at New York University on May 26, 2004:
The Delusion of Dominance
"[F]rom its earliest days in power, th[e] administration
[of George W. Bush] sought to radically destroy the foreign policy
consensus that had guided America since the end of World War II.
The long successful strategy of containment was abandoned in favor
of the new strategy of 'preemption.' And what they meant by preemption
was not the inherent right of any nation to act preemptively against
an imminent threat to its national security, but rather an exotic
new approach that asserted a unique and unilateral U.S. right to ignore
international law wherever it wished to do so and take military action
against any nation, even in circumstances where there was no imminent
threat....
"More disturbing still was their frequent use of
the word 'dominance' to describe their strategic goal, because
an American policy of dominance is as repugnant to the rest of
the world as the ugly dominance of the helpless, naked Iraqi prisoners
has been to the American people. Dominance is as dominance does....
"The same dark spirit of domination has led them
to -- for the first time in American history -- imprison American
citizens with no charges, no right to see a lawyer, no right to notify
their family, no right to know of what they are accused, and no right
to gain access to any court to present an appeal of any sort.... They
have launched an unprecedented assault on civil liberties, on the right
of the courts to review their actions, on the right of the Congress to
have information on how they are spending the public's money, and the right
of the news media to have information about the policies they are pursuing....
"Our world is unconquerable because the human spirit
is unconquerable, and any national strategy based on pursuing
the goal of domination is doomed to fail because it generates its
own opposition, and in the process, creates enemies for the would-be
dominator. A policy based on domination of the rest of the world not
only creates enemies for the United States and creates recruits for
Al Qaeda, it also undermines the international cooperation that is essential
to defeating [terrorism]...."
The Rule of Law
"[W]hat makes the United States special in the history
of nations is our commitment to the rule of law and our carefully
constructed system of checks and balances.... Our founders were
insightful students of human nature. They feared the abuse of power
because they understood that every human being has not only 'better
angels' in his nature, but also an innate vulnerability to temptation,
especially the temptation to abuse power over others....
"Private Lynndie England did not make the decision
that the United States would not observe the Geneva Conventions.
Specialist Charles Graner was not the one who approved a policy of
establishing an American Gulag of dark rooms with naked prisoners
to be 'stressed' and even -- we must use the word -- tortured -- to
force them to say things that legal procedures might not induce them
to say. These policies were designed and insisted upon by the Bush
White House.... As many as 37 prisoners may have been murdered while
in captivity, though the numbers are difficult to rely upon because
in many cases involving violent death, there were no autopsies....
"How dare the incompetent and willful members of
this Bush-Cheney Administration humiliate our nation and our people
in the eyes of the world and in the conscience of our own people! How
dare they subject us to such dishonor and disgrace! How dare they drag
the good name of the United States of America through the mud of Saddam
Hussein's torture prison!"
Conclusion
"Th[e] [Bush] administration has shamed America and
deeply damaged the cause of freedom and human rights everywhere,
thus undermining the core message of America to the world. President
Bush offered a brief and half-hearted apology to the Arab world, but
he should apologize to the American people for abandoning the Geneva
Conventions. He also owes an apology to [our armed forces] for cavalierly
sending them into harm's way while ignoring the best advice of their
commanders. Perhaps most importantly of all, he should apologize to
all those men and women throughout our world who have held the ideal
of the United States of America as a shining goal, to inspire their hopeful
efforts to bring about justice under a rule of law in their own lands....
"So today, I want to speak on behalf of those Americans
who feel that President Bush has betrayed our nation's trust, those
who are horrified at what has been done in our name, and all those
who want the rest of the world to know that we Americans see the abuses
that occurred in the prisons of Iraq, Afghanistan, Guantanamo, and secret
locations as yet undisclosed, as completely out of keeping with the
character and basic nature of the American people and at odds with
the principles on which America stands.
"I believe we have a duty to hold President Bush
accountable -- and I believe we will. As [President Abraham] Lincoln
said at our time of greatest trial, 'We, even we here, hold the power,
and bear the responsibility.'"
- Former Vice-President Al Gore (May 26, 2004)
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