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Title
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Fermented Justice
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Description
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This image visualizes our article "Turning Sugar to Alcohol: An Originalist Critique of Implicit Divestiture," which challenges federal Indian law's implicit divestiture doctrine through originalist constitutional interpretation. The Constitution on the left represents the foundational "sugar" of tribal sovereignty as understood at the founding. The central apparatus—distilling amber liquid—symbolizes two centuries of judicial interpretation. The dark bottle labeled "Doctrine of Implicit Divestiture" contains the “fermented” end product. Our metaphor draws from Justice Scalia's citation of Robert Rantoul: "The Common Law is the perfection of human reason, just as alcohol is the perfection of sugar...till what was wholesome becomes rank poison." The implicit divestiture doctrine holds that tribal governments lose sovereign powers deemed "inconsistent with their status" implicitly through history. We demonstrate this doctrine represents judge-made policy disguised as law. No constitutional provision, founding-era treaty, or eighteenth-century international law principle authorized courts to unilaterally diminish tribal sovereignty. Following Justices Gorsuch and Thomas's recent originalist critiques, we argue for abandoning implicit divestiture in favor of applying the theory of originalism to understand when tribal sovereignty can be abrogated. The image captures what happens when judicial interpretation ferments constitutional principles beyond recognition.
This image was created when the article authors worked with G.AI to develop an image representative of their article. “Create an image that captures analogizing the mutation of the US Constitution to a doctrine of implicit divestiture in Indian law to fermenting sugar into alcohol” original prompt. G.AI, January 2026 version (January 23, 2026).
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Date
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2026-01-26
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Creator
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Warner, Elizabeth
