Written by Aaron Tsui, Edited by Lyan Casamalhuapa

Aaron Tsui is a junior studying computer engineering and robotics in the School of Engineering and Applied Science interested in technology law and intellectual property.

While it is more than likely that you have heard the term “AI” in the news or in conversations, have you ever asked yourself: “What is AI?” 

The obvious answer is “artificial intelligence.” From here, you can derive a simple definition that AI is computer-programmed intelligence that can perform actions or reasoning that would otherwise require human intelligence. Simple enough, right? Not quite. ​

​Written by Samantha Graines, Edited by Nicole Muravksy

The European Court of Human Rights (ECtHR) is an international court that enforces the European Convention on Human Rights (ECHR), serving as the primary judicial mechanism for protecting human rights across Europe. It receives applications from individuals, groups, or states alleging human rights violations by member states, orders remedies if violations are found, and puts out rulings that have led to important legal reforms. While the European system for protecting human rights may appear to be a model framework for protecting human rights, in reality, its decision-making processes and jurisprudence are fraught with ambiguity. This ambiguity undermines the consistency and fairness of its rulings, often leaving essential human rights vulnerable to subjective interpretations.

Written by Arshiya Pant, Edited by Yoonjung Choi
Arshiya Pant is a sophomore in the College of Arts & Sciences at the University of Pennsylvania studying history and legal studies. 
Originalism and conservatism have become near-synonymous in the past few decades of American legal history. Strong associations exist between the interpretive theory and efforts to undermine rights not explicitly enumerated in the Constitution. Originalism is the constitutional application of textualist readings, characterized by a narrow and strict interpretation of the law. Textualist interpretations have recently justified monumental conservative wins such as the end of a federally-backed right to abortion in Dobbs v. Jackson Women’s Health Organization, raising questions about what originalism could undo next. As a chief proponent of originalism, Justice Clarence Thomas has asserted that the right to privacy established in Griswold v. Connecticut, the legal recognition of same-sex marriage in Obergefell v. Hodges, and other cases decided through substantive due process are at risk of being overturned. [1] Given this association with restricting unenumerated rights, it may come as a surprise that some argue originalist thought could serve as a vehicle for affirming the rights and sovereignty of a particular group—Native Americans. 

The argument for originalist justifications of tribal rights begins at the heart of originalist thought itself: the Constitution. The basis of Federal Indian law is rooted in the Constitution in Article I, Section 8, Clause 3 which specifies that Congress may “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” [2] This clause has been largely understood to institute plenary power in the Federal Government’s relationship with Native Americans, establishing tribal sovereignty. 

In 1832 the Court’s holding in Worcester v. Georgia emphasized that tribes, despite relinquishing some autonomy in exchange for a fiduciary relationship with the United States, are sovereign entities. [3] In 1886, the plenary powers of Congress over Native American tribes was affirmed in US v Kagama. [4] Roughly a century later, the responsibilities of the federal government to Native American tribes continued to be upheld, applying to cases such as Covelo v. Watt, where it was argued that unresolved land damages from the federal government constituted a breach of trust in its fiduciary duties. [5]

The originalist reasoning behind securing Native American rights relies on the argument that the aforementioned “Indian Commerce Clause” (especially coupled with the historical tradition of several pre-constitutional treaties honoring sovereignty) constructs a legal framework preserving the sovereignty of Indian tribes as a critical part of the relationship between the federal government and Native Americans. 

In keeping with the originalist values of history and tradition, one could draw a consistent line of legal logic that respects tribal sovereignty by observing not only the Constitutional clause, but also treaties dating back to the 17th century and the Marshall trilogy of court cases which established much of modern Federal Indian law. [6] Justice Neil Gorsuch, who is indubitably the most influential pro-sovereignty originalist the Court has ever seen, even included a chronological account beginning with pre colonial Jamestown’s tribal populations in a concurring opinion aiming to provide historical context to the issue of state relationships with tribes. [7]

This understanding of Congress and tribal relationships was also reinforced by the Court’s landmark decision in Haaland v. Brackeen, a 2023 case which upheld the Indian Child Welfare Act as constitutionally legitimate legislation able to be implemented by Congress. [8] However, a closer examination of different justices’ opinions in Haaland demonstrates that originalist thought does not point to one clear answer in interpretations of the Indian Commerce clause. Specifically, self-proclaimed originalist Justices Gorsuch and Clarence Thomas can be used as case studies of two distinct trains of thought (both claiming to be rooted in textualism) regarding tribal sovereignty: Justice Gorsuch represents the preservation of rights and sovereignty through a holistic consideration of legal history and context, while Justice Thomas represents a limited view of the Indian commerce clause and subsequently, a limited view of tribal sovereignty. 

Justice Thomas’s view on issues on tribal sovereignty largely stem from his views on the Indian Commerce Clause. Like Justice Gorsuch, he emphasizes verbiage, but the two justices nonetheless interpret this verbiage quite differently. Because both justices use textualist theory as a roadmap for interpretation, both seek to understand the purpose of the clause by understanding the definition of its words in the context in which they were written. Justice Thomas interprets the phrase “commerce” to literally mean commercial matters and trade, whereas Justice Gorsuch interprets the phrase to include more general issues outside of economic matters. [9] It is worth noting that recent proponents of originalism-supported Indian sovereignty have cited research suggesting the definition of “commerce” at the time, especially with the context of referring to tribes, would in fact have encapsulated more than strictly economic issues. [10] 

The differing interpretation of commerce fundamentally changes the justices’ entire views regarding the nature of tribal sovereignty. Centuries of legislation and protective acts supporting the rights of Native American individuals and autonomy of legally-recognized tribes—all finding basis in the Indian Commerce Clause—would be fundamentally altered under Justice Thomas’s view. It may be unsurprising then, that Justice Thomas has gained a notorious reputation among some scholars for being anti-sovereignty. [11] Conversely, Justice Gorsuch has notably ruled in favor of Native American interests in well above the majority of cases he has presided over—it is incredibly difficult to find any public records proving limitations of his pro-Native rulings. [12]

Despite the stark contrast in Justice Thomas and Gorsuch’s stances on Native rights, both justices similarly wield the logic of originalism to call into question implied rights in a vast range of other issues. This can be seen especially in their justifications for conservative positions regarding abortion, administrative law, and gun control. [13,14,15] Some might ask how a theory that could justify conservative goals to this extent would be compatible with the preservation of rights for a minority group. Yet, originalism has been associated with the expansion of rights — second amendment rights. 

In New York State Rifle and Pistol Association v. Bruen, the Court used originalist reasoning to eliminate the scrutiny test previously applied to infringements on second amendment rights, instead replacing it with an originalist “text, history, and tradition test.” [16] One might wonder how this loss for gun control advocates relates to Native American rights—after all, society does not often see the same political and social groups championing tribal sovereignty and second amendment rights. However, the case poses an interesting question; could originalism be used to expand tribal sovereignty if the focus were shifted to text, history, and tradition? Using reconstruction-era policies as an example, legal scholars ask if proving the existence of certain progressive ideals in historical legal canon could advance Federal Indian rights. 

Observing Justice Gorsuch’s record, one might be tempted to argue that originalism can, in fact, secure tribal sovereignty and Native rights. At the same time, Justice Thomas’s arguments should remind scholars and attorneys alike of the theory’s manipulability. Ultimately, one legal theory will not be the champion of hundreds of years of struggle for rights and recognition. Yet, originalist justifications for Indian interests in federal law could provide hope for proponents of Native American rights and autonomy. If an ideologically diverse set of paths could lead towards the same destination of sovereignty, perhaps more tribes will be able to reach that destination sooner.

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

Bibliography 

[1] Stolberg, Sheryl. “Thomas’s Concurring Opinion Raises Questions about What Rights Might  
Be Next.” New York Times. June 24, 2022.https://www.nytimes.com/2022/06/24/us/clarence-thomas-roe-griswold-lawrence-obergefell.html
[2] Cohen, Felix S., 1907-1953. Handbook of federal Indian law Cohen's handbook of federal Indian law / Nell Jessup Newton, editor in chief. 2012 edition. https://guides.loc.gov/american-indian-law/Federal-Law
[3] Scope of Commerce Clause Authority and Indian tribes. https://constitution.congress.gov/browse/essay/artI-S8-C3-9-1/ALDE_00012976. 
[4] “United States v. Kagama, 118 U.S. 375 (1886).” Justia Law. https://supreme.justia.com/cases/federal/us/118/375/. 
[5] “Covelo Indian Community v. Watt, James G.” Covelo v. Watt, selected case documents; National Indian Law Library, Native American Rights Fund (NARF). https://www.narf.org/nill/documents/Covelo_v_Watt/. 
[6] “Tribal Governance.” Marshall Trilogy | Tribal Governance. https://www.uaf.edu/tribal/academics/112/unit-1/marshalltrilogy.php. 
[7] Haaland v. Brackeen, 599 U.S. 255 (2023). https://www.supremecourt.gov/opinions/22pdf/21-376_7l48.pdf. 
[8] “Indian Child Welfare Act (ICWA) (Haaland v. Brackeen).” Native American Rights Fund, June 15, 2023. https://narf.org/cases/brackeen-v-bernhardt/. 
[9] Ablavsky, Gregory, The Original Meaning of Commerce in the Indian Commerce Clause (May 01, 2024).  56 Connecticut Law Review 1013 (2024). https://ssrn.com/abstract=4911164
[10] Ablavsky, Gregory. “Beyond the Indian Commerce Clause.” The Yale Law Journal - Home. https://www.yalelawjournal.org/article/beyond-the-indian-commerce-clause. 
[11] Wilkins, David E. “Justice Thomas and Federal Law: Hitting His Stride.” Indian Country Today 23, no. 47 (May 2004): A4. https://scholarship.richmond.edu/cgi/viewcontent.cgi?article=1327&context=jepson-faculty-publications
[12] Dossett, John. “Justice Gorsuch and Federal Indian Law.” American Bar Association. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/vol--43/vol--43--no--1/justice-gorsuch-and-federal-indian-law/.
[13] Hamm, Andrew. “Dobbs v. Jackson Women’s Health Organization.” SCOTUSblog. https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/. 
[14] Howe, Amy. “Supreme Court Strikes down Chevron, Curtailing Power of Federal Agencies.” SCOTUSblog, July 26, 2024. https://www.scotusblog.com/2024/06/supreme-court-strikes-down-chevron-curtailing-power-of-federal-agencies/. 
[15] “New York State Rifle & Pistol Association Inc. v. Bruen.” Ballotpedia. https://ballotpedia.org/New_York_State_Rifle_%26_Pistol_Association_Inc._v._Bruen. 
[16] Beauchamps, Nathalie, and Name. “Originalism: A Conservative Doctrine or an Opportunity to Expand Rights?” Harvard Civil RightsCivil Liberties Law Review. https://journals.law.harvard.edu/crcl/originalism-a-conservative-doctrine-or-an-opportunity-to-expand-rights/. 

By Dasmine Maynard
​
​When one thinks of the United States of America, the territories it maintains are often overlooked and omitted from the conversation. Despite being home to millions of American citizens, these unincorporated territories linger in the shadows, receiving partial privileges and limited representation — which raises a pivotal question: Why are persons born within U.S. territories treated as second-class citizens? 
 
American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands make up the five primary territories of the United States [1]. From the Caribbean Sea to the Pacific Ocean, these five territories are dispersed throughout opposing sides of the world, each possessing its own distinct culture, political governance, and historical background. Yet, they remain bound together by their complex relationship with the U.S. and their ongoing debates surrounding the inalienable privileges of citizenship and representation.
 
According to the U.S. Department of the Interior’s Office of Insular Affairs, a territory is defined as an unincorporated jurisdiction that is neither one of the states nor a federal district [2]. Given this political status, these islands are subjected to narrow political representation, partial disenfranchisement, and second-class citizenship – with the inability to vote for U.S. presidential candidates being the most highly contested and debated political limitation.
 
As stated in the United States 15th Amendment and further solidified by the Voting Rights Act of 1965, “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude” [3]. This amendment evidently guarantees voting rights for legal citizens of the United States; which is the status held by citizens of U.S. territories (excluding American Samoa). This citizenship was guaranteed to individuals born within U.S. territories by virtue of the Citizenship Clause within the 14th Amendment, which states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States” [4].
 
However, despite this guaranteed citizenship, individuals born within these territories are subject to partial or second-hand rights and are not afforded all the same privileges as persons born within the states. This also raises consequential concerns regarding race and ethnicity in America because the residents of these territories are 98% minorities [5]. This includes people of African, Latin, Asian, and Pacific Islander descent who are disproportionately disenfranchised – highlighting the ongoing challenges for racial equity, inclusion, and representation within American society.
 
Thus, the question remains: Why are individuals born within U.S. territories considered U.S. citizens but are continuously disenfranchised in the vote for U.S. President? The answer lies within the complexities of the American Electoral College system.
 
The Electoral College is the process for selecting the President and Vice President of the United States, in which a group of electors, representing each state and the District of Columbia, cast their votes based on the voting results from their respective states (including the District of Columbia). Within the Electoral College, there are 538 electors — one for every state's (including the District of Columbia) allotted number of congressional members from both the House of Representatives and the Senate [6].
 
However, given that U.S. territories are not allowed unabated congressional representation, they are not given electoral votes in the Electoral College. Thus, they are completely excluded from the process of selecting the nation’s president.
 
Instead, U.S. territories were seemingly given a consolation prize and were granted one non-voting member in the House of Representatives. These territorial representatives (also known as delegates or resident commissioners, as relates to Puerto Rico), are elected by the people of their respective territories and currently enjoy privileges and responsibilities similar (but not equal) to other congressional members hailing from the fifty states. For instance, territorial representatives can introduce bills and resolutions, as well as offer amendments on the House floor. Additionally, they can serve, vote in, and preside over their committees of choice [7]. As territorial representatives, these elected individuals serve as the voice of their people, advocating for their interests whilst urging the U.S. government to support major governmental and societal matters including but not limited to — public health, education, public infrastructure, economic development, law and order, national security, environmental protection, social services, and emergency response.
 
In 2017, the United State’s duty to provide effective emergency response was particularly problematic during the aftermath of Hurricanes Irma and Maria. In 2017, these hurricanes struck the U.S. Virgin Islands and Puerto Rico causing insurmountable disaster. From destroyed roofs to collapsed buildings, Irma and Maria left the citizens of these islands in desperate need of U.S. federal assistance – which is primarily provided by the Federal Emergency Management Agency (FEMA). However, the resources and support offered by FEMA are disproportionately distributed by the federal government in favour of federal states, notwithstanding the fact that U.S. territories also pay federal taxes [8].
 
Studies illustrated that survivors of Hurricanes Harvey and Irma within Florida and Texas received approximately $100 million in FEMA assistance 9 days post-disaster; while survivors of Maria in Puerto Rico received less than $10 million [9]. This is merely one of the countless examples that depict the inequities endured within U.S. territories. Additionally, they also receive diminished funding for federal programs such as Medicaid/Medicare, Earned Income Tax Credit (EITC), Supplemental Nutrition Assistance Program (SNAP), and many others. These disparities greatly affect the lives of territorial residents, exacerbating the pre-existing inequalities they already experience as minority citizens [1].
 
In 2016, the Governor of Guam wrote to the Department of Treasury on behalf of the citizens of Guam and all other U.S. territories requesting that they all be treated equitably in regards to federal programs and mandates [10]. This plea illustrates the startling reality of the second-class citizenship experienced by U.S. citizens — extending beyond the scope of voting rights and representation, to every facet of their daily lives.
 
Ultimately, the status of these five permanently inhabited U.S. territories—American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands—highlight the ongoing struggle for equal representation and citizenship rights in America. Although they boast a population of over 3.5 million U.S. citizens, these territories continue to face limitations in their political influence and congressional representation [1].
 
Furthermore, the exclusion of these territories from the Electoral College process perpetuates the fundamental issue of disenfranchisement, leaving them disproportionately underserved compared to residents of U.S. states. Despite their U.S. citizenship, these territorial residents receive reduced federal support and assistance, compounding the challenges they face as second-class minority citizens.
 
As the United States continues to grapple with questions of equality, representation, and the very meaning of citizenship, it is crucial to address the longstanding disparities faced by the residents of its territories – especially considering that the majority are of African, Latin, Asian, and Pacific Islander racial and ethnic heritages. Thus, the path forward must involve a comprehensive examination of the historical, legal, and political factors that have shaped the current situation, as well as a commitment to ensuring that all U.S. citizens, regardless of their place of birth or residence, are granted the full rights and privileges afforded by the Constitution of the United States.
 
[1] U.S. Virgin Islands Advisory Committee to the U.S. Commission on Civil Rights. (2023). The Status of Civil Rights in the U.S. Virgin Islands https://www.usccr.gov/files/2024-02/usvi-information-brief.pdf
[2] Roger Williams University School of Law. (2020, March 20). What is a US Territory? | RWU Law. Law.rwu.edu. https://law.rwu.edu/library/blog/what-us-territory
[3] National Archives. (2021b, September 7). 15th Amendment to the U.S. Constitution: Voting Rights (1870). National Archives. https://www.archives.gov/milestone-documents/15th-amendment
[4] National Archives. (2021, September 7). 14th Amendment to the U.S. Constitution: Civil Rights (1868). National Archives. https://www.archives.gov/milestone-documents/14th-amendment
[5] Voting Rights in U.S. Territories Advisory Memorandum Connecticut Advisory Committee U.S. Commission on Civil Rights. (2021). https://www.usccr.gov/files/2021-11/voting-rights-in-the-territories-advisory-memo-ct-sac.pdf
[6] What is the Electoral College? (2019, August 27). National Archives. https://www.archives.gov/electoral-college/about#:~:text=The%20Electoral%20College%20consists%20of
[7] Congressional Research Service. (2022). Delegates to the U.S. Congress: History and Current Status. https://sgp.fas.org/crs/misc/R40555.pdf
[8] D.C., Puerto Rico, and the U.S. Territories. (2021, November 24). Rock the Vote. https://www.rockthevote.org/explainers/washington-d-c-puerto-rico-and-the-u-s-territories/
[9] Willison, C. E., Singer, P. M., Creary, M. S., & Greer, S. L. (2019). Quantifying inequities in US federal response to hurricane disaster in Texas and Florida compared with Puerto Rico. BMJ Global Health, 4(1), e001191. https://doi.org/10.1136/bmjgh-2018-001191
[10] News: Ensuring equity in federal programs, mandates; Governor asks feds to end disparity in Medicaid, Medicare and EITC - Governor of Guam. (2016, March 24). Office of the Governor. https://governor.guam.gov/press_release/news-ensuring-equity-federal-programs-mandates-governor-asks-feds-disparity-medicaid-medicare-eitc/