Abstract

Excerpted From: Rose Cuison-Villazor, The 2023 Alien Land Laws and Historical Amnesia, 46 Western New England Law Review 102 (2024) (106 Footnotes) (Full Document)

Thank you Western New England Law Review, Andrew Loin (Editor-in-Chief), and Dean Zelda Harris for inviting me to participate in this incredibly powerful conference. I have learned so much from the speakers and panel discussions today. It truly is an honor to be part of this symposium.

Since I am one of the last speakers of the day, I thought that I would begin my talk by connecting my lecture with Richard Rothstein's The Color of Law. As a property law and race scholar, I am a big fan of Rothstein's work and I consider his book, The Color of Law, one of the most influential books of our time. In fact, years ago, I purchased extra copies of The Color of Law and distributed them to some of my students at the end of the semester. One of the points that I most appreciate about The Color of Law is Rothstein's claim that ongoing wealth inequality today stems not entirely from de facto segregation, but also from de jure segregation perpetrated by federal, state, and local governments.

Essentially, in his book, The Color of Law as well as in his forthcoming book that he just talked about, Just Action, Rothstein seeks to reorient our collective memory. Thinking about collective memory is critical. Scholars who write in the field of socio-legal inquiry of law and memory remind us that our memories of laws--what we remember or not remember about them-- influence the creation, enforcement, and interpretation of new laws. In other words, Rothstein asks us not to forget about what happened in the past, because they are part of our shared history, and they have contemporary effects.

My lecture today similarly encourages us to remember the past, and to consider the effect that they have today. The title of my talk is 2023 Alien Land Laws and Historical Amnesia, and it will explore the intersection of immigration, citizenship, and race that I am seeing right now in several alien laws that have been enacted in various states.

By new alien land laws, I am referring to laws such as the one passed in Florida in May 2023, which prohibit Chinese people from owning land. Unfortunately, Florida is not alone. Alabama, Indiana, and Montana have passed similar laws and there are multiple bills under consideration that have been proposed in other states. A lawsuit has been filed against the Florida law and, in full disclosure, I am part of a team writing an amicus brief, which includes Professor Gabriel “Jack” Chin of the University of California Davis School of Law whom you heard from earlier, Professor Bob Chang of Seattle University School of Law, and pro bono lawyers from Foley Hoag that is supporting the challenge to Florida's Alien Land Law, or S.B. 264.

I argue today that these laws are reminiscent of alien land laws in the 1920s that denied persons who were “ineligible to citizenship” from owning land. The phrase “ineligible for citizenship” or “ineligible to citizenship” was a euphemism for the denial of Asian immigrants from being able to naturalize and become U.S. citizens. Persons who were deemed ineligible to citizenship, mainly Asians, were also racially barred from immigrating to the United States. To make matters worse, those Asian immigrants who were already in the United States and not racially eligible for naturalization found themselves prohibited from owning land in several states. Together, these laws shaped the racial makeup of our country and attributed to the 'perpetual foreignness' stereotype of Asian Americans today. Importantly, the alien land laws that were passed this year, including in Florida, suggests that this part of our history seems to have been forgotten.

With the balance of my time, I'll divide my remarks into three parts. First, I will briefly explain how immigration, citizenship, and race intersected to influence the racial and citizenship makeup of the United States. Second, I will discuss the alien land laws of the 1920s and the cases that challenged them. As I will emphasize in that part of my remarks, the U.S. Supreme Court in four cases in 1923 upheld these alien land laws, but since then, states have repealed those laws and equal protection jurisprudence has developed such that these laws would be considered racially discriminatory today. Finally, I will return to Florida's alien land law and share with you some of the arguments that are publicly available with respect to the challenge of this law. Overall, I argue that both the passage of the law and the District Court's opinion, which allowed the law to be enforced, demonstrate historical amnesia about the earlier alien land laws of the 1920s. The dangers of not remembering our past means that the same mistakes are being made again today.

[. . .]

As Florida's SB 264 demonstrates, we are once again facing discriminatory alien land laws. When I published my article in 2010 about the Oyama case and California's alien land laws, I believed that we had moved past that part of our racial history. It turns out I was mistaken as states like Florida and others today have decided to bring those laws back.

Richard Rothstein encouraged us in The Color of Law to recognize our historical past. We must do so today as well in looking at these states like Florida in the newly passed alien land laws. Florida's alien land law, as we wrote in our amicus brief, “is a law that under the pretext of national security will invite another era of anti-Asian sentiment and result in discrimination against all Asian persons.”

Professor of Law and Chancellor's Social Justice Scholar, Rutgers Law School.