Florida Constitution
2:28 pm
Thu April 11, 2013

Law Of The Land In Florida Is A Source Of Irritation For Asians

Here's a question we received from one of several hundred South Florida residents who attended a recent WLRN/Miami Herald Town Hall that was held just prior to the current legislative session.

This one comes from friend-of-WLRN Piyush Agrawal, a scholar, educator, businessman and philanthropist who lives in Weston:

CONSTITUTIONAL RACISM: Asians have been angered and insulted for decades by the Alien Land Law in the Florida constitution. But they have still acquired land.

"Why does Florida's constitution still allow the state to prohibit foreign citizens from owning real estate?"

That's a question Floridians have been asking each other for 90 years, ever since voters in 1923 -- acting on fears of an economic takeover by the many Asian immigrants of the era -- added an alien land amendment to the Florida constitution.

You don't need to go hunting with a law professor for obscure anti-Asian language in our great state's basic document of government. It's prominent, right in Article 1, the first thought expressed after a broad grant of human rights "to all natural persons."

It says this: "The ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law." And then, as if it had only momentarily lost its mind, the constitution resumes with a perfectly straight face: "No person shall be deprived of any right because of race, religion, national origin, or physical disability."

'It's incredibly obnoxious and insulting,' says lawyer Barnaby Min.

The best thing that can be said about Floridians in the 1920s is: it wasn't just them. Several states also passed these land laws and, unlike Florida's constitutional amendment, which only laid the groundwork for possible prohibition or regulation, many of those were statutes with out-and-out legal barriers to would-be Asian property owners.

But what  they all had in common was the phrase "ineligible for citizenship." Acting on the same prejudices, Congress had already made citizenship unattainable for most Asian immigrants under a series of laws beginning with the 1870 Naturalization Act. Those acts provided the qualifying "ineligible" phrase that made it possible to target Asians without actually mentioning them.

But there are two reasons not to worry too much about the practical effects of the alien land amendment.

No laws have ever been passed under the authority of that constitutional language. If there had been, reckons Florida State University law school Prof. James Gardner, they wouldn’t have lasted long.

"It's quite likely those provisions would be subject to challenge and invalidation under the U. S. Constitution," Gardner said, speculating  they would be struck down under federal equal protection or due process guarantees.

There is no longer anybody to apply it to. By the end of the 1940s, all  national origin restrictions on citizenship for immigrants had been abolished. No current laws bar any nationality from seeking citizenship, therefore no one is "ineligible for citizenship" by national birthright.

But the intangible effects of maintaining openly racist and xenophobic measures in the Florida Constitution are significant.

"It’s still a very black eye," said Barnaby Min, a South Florida lawyer and past president of the Asian Pacific American Bar Association. "Why is there something in our state constitution that says immigrants are not allowed to own land? It's incredibly obnoxious and insulting."

The APABA was active in bringing a repeal measure to the Florida ballot in 2008.  It looked like a no-brainer for voters, Min recalls. And that's why few brains were exercised to prepare the campaign. It caught voters unaware of this specific problem but who were nonetheless preoccupied with contemporary issues of immigration and terrorism.

"It  had nothing to do with immigration, it had nothing to do with terrorism," says former State Sen. Steve Geller, who led the legislative effort to put the repealer on the ballot. "But I remember one senator standing up and saying they should not be eligible for citizenship."

The repeal was defeated. Now, there's a focus on trying again in 2015 and Min says there will be voter outreach effort that didn't happen five years ago." Next year, we're gong to be a lot more aggressive," he promises.