Feb. 10, 2013 Note to Readers of the Public Law & Legal Theory Workshop: Thank you very much in advance for reading my draft. Please note that it is still very much a work-­‐in-­‐progress. I continue to add evidence and citations throughout. I know that the article will benefit greatly from your comments and suggestions. All the best, Allison Tirres STATES BY DESIGN: THE CREATION OF NON-­‐CITIZEN PROPERTY RIGHTS IN THE NINETEENTH CENTURY Allison Brownell Tirres1
DRAFT – Please do not quote or cite without permission
ABSTRACT
In the mid-nineteenth century, eleven states adopted provisions in their
constitutions guaranteeing the property rights of non-citizens. Prior to this
period, state courts had restricted non-citizen property rights, applying English
common law doctrine. Under the common law, aliens were unable lawfully to
hold or inherit property; the sovereign could force a property forfeiture at any
time. Additions to state constitutions dramatically altered this scheme. Iowa
was the first in the antebellum era; Wisconsin, California and Michigan
followed suit with almost identical provisions in their antebellum constitutions.
Seven more states followed after the Civil War; one more followed in the
twentieth century. In this article, I place these constitutional developments in
the larger context of the histories of citizenship, westward expansion, and
property reform. I show that federal territorial law played a critical role in the
expansion of non-citizen property rights at the state level. Federal law
guaranteed alien property ownership and suffrage; these rights directly
influenced proponents of state property reform. Reform efforts depended upon
a vision of what convention delegates considered to be a distinctively
“American” kind of property law, one that was modern, open, and inclusive
rather than closed, feudal, and the province of only a select few. This episode
of antebellum constitutional reform reveals a widespread acceptance of legal
rights outside of territorial citizenship. At the same time, these reform efforts
held the seeds of restrictive alien land laws that would develop later in the
nineteenth and twentieth centuries. Becoming “American” through property
ownership was not a fully inclusive process; from the outset it was limited by
assumptions about origin, race, and territorial location.
1
Assistant Professor of Law, DePaul University College of Law. B.A., Princeton
University; J.D., Harvard Law School; Ph.D., Harvard University. For comments and
helpful suggestions with this project, I would like to thank Chris Tirres, Christopher
Schmidt, Joseph Singer, Gregory Mark, Stephen Siegel, and Joshua Sarnoff. I was fortunate
to receive comments and suggestions during presentations at the annual meeting of the
American Society for Legal History and the Legal History Workshop of the American Bar
Foundation. I am thankful to Mark Giangrande of the DePaul Rinn Law Library and to
Natasa Timotijevic for research assistance. My research was made possible in part by a
Faculty Research Leave from DePaul University.
1
TABLE OF CONTENTS Introduction 1. Alien Property and Federal Policy a. Alien Property in English Common Law b. Property and Naturalization c. Federal Land Policy and the Northwest Territories 2. Crafting Non-­‐Citizen Property Rights in State Constitutions a. From Territory to State: The Process of Creating State Constitutions b. Of State Power and Alien Rights c. Protecting Property d. Redefining Membership e. Modernizing Property 3. Property Rights and the Politics of Exclusion a. Black Migration b. Property and Suffrage c. Residence and Corporate Ownership 4. The Persistence of a Difference Conclusion 2
INTRODUCTION Property law is private law and also a form of public ordering. It is
about individual rights to things, but it is also about the individual’s
relationship to the state. It determines the relationships between persons to
resources, and, at the same time, is a core component of identity and
belonging.2 For much of American history, property law has structured and
mediated the relationship of individuals to the nation state. Property ownership
was a demonstration of allegiance as well as fitness to govern. In the early
national period, property ownership was oftentimes a requirement of the
franchise. 3 During Reconstruction, legislators understood that freed slaves
would not be accepted as members of the polity without access to property, and
passed the Civil Rights Act of 1866 in response. Married Women’s Property
Acts represented efforts of legislators to protect financial health of families but
they also altered the relationship of women to the state, speeding the erosion of
coverture and the eventual granting of suffrage. 4 Property structured the
relationship of these initially nominal members of the polity – poor white males,
freed slaves, and women – to full, participatory citizenship.5
But what of those who were territorial outsiders? Our discussion of
non-citizens in the history of property is limited.6 Scholars of citizenship point
2
On the relational aspect of property, see Joseph Singer, Property Law; “Progressive
Property”; on its relationship to identity, see Margaret Jane Radin, Property and Personhood
[cites].
3
ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN
THE UNITED STATES 2, 24 (Rev. ed., 2009) (“adult white males who did not own land” were
among those excluded from suffrage at the Founding).
4
On Married Women’s Property Acts, see NORMA BASCH, IN THE EYES OF THE LAW:
WOMEN, MARRIAGE, AND PROPERTY IN NINETEENTH-CENTURY NEW YORK (1982);
GREGORY ALEXANDER, COMMODITY AND PROPRIETY: COMPETING VISIONS OF PROPERTY IN
AMERICAN LEGAL THOUGHT 158-184 (1997).
5
Nancy Cott, Marriage and Women’s Citizenship in the United States, 1830-1934, 103 AM.
HIS. REV. 1440 (1998) (developing the idea of nominal versus participatory citizenship in
describing the relation of married women to citizenship in the nineteenth and twentieth
centuries).
6
The long, complicated history of alien property ownership is largely reduced in the
historical and legal literature to a focus on the infamous anti-Asian alien land laws of the
early twentieth century, which prevented non-citizens of Asian heritage from owning or
leasing farmland. See, e.g., Keith Aoki, No Right to Own: The Early Twentieth-Century
Alien Land Laws as a Prelude to Internment, 40 B.C. L. REV. 37 (1998); Dudley O.
McGovney, The Anti-Japanese Land Laws of California and Ten Other States, 35 CALIF. L.
REV. 7 (1947); Charles H. Sullivan, Alien Land Laws: A Re-Evaluation, 36 TEMP. L. Q. 15,
28 (1962). While the anti-Asian land laws are of great importance, they are one chapter in
a much longer story. For recent work that has discussed the relationship of alienage and
property more generally, see, e.g., Polly J. Price, Alien Land Restrictions in the American
Common Law: Exploring the Relative Autonomy Paradigm, 43 AM. J. LEGAL HIST. 152
(1999); Karen M. Tani, Flemming v. Nestor: Anticommunism, the Welfare State, and the
Making of ‘New Property,’ 26 LAW & HIST. REV. 379 (2008); Allison Brownell Tirres,
3
to the fluidity of the concept of citizenship in the eighteenth and nineteenth
centuries: aliens could, and did, vote in many jurisdictions, and there were very
few border controls.7 Allegiance was assumed in many cases, and forced
expulsion or deportation exceedingly rare.8 Naturalization was a relatively easy
process, administered in a decentralized fashion.
The focus on fluidity is not inaccurate but it fails to account for the
zones of interaction where alienage did matter – where being a territorial
outsider had specific legal ramifications. Fee simple ownership of property was
not available to aliens in the common law, as developed in England and
adopted in the fledgling United States.9 The alteration of this doctrine over the
course of the nineteenth and twentieth centuries, towards property rights for
non-citizens, was slow, piecemeal, and sometimes contradictory.10 It is still
incomplete.11 In 2013, the majority of states – thirty-six to be exact – have
some form of alien property restriction on the books.12 Efforts to limit noncitizen property rights continue in our modern era in the form of anti-illegal
immigrant housing ordinances, which prohibit undocumented immigrants from
renting – or, in some cases, occupying – housing.13
In prior work, I have examined the persistence of property restrictions
Property Outliers: Non-Citizens, Property Rights and State Power, _ GEO. IMM. L. J. __
(2013); Rose Cuison Villazor, Rediscovering Oyama v. California: At the Intersection of
Property, Race, and Citizenship, 87 WASH. U. L. REV. 979 (2010). Other recent scholarship
has addressed some of the theoretical and practical intersections between immigration and
property law. See Eleanor Marie Lawrence Brown, Visa as Property, Visa as Collateral, 64
VAND. L. REV. 1047 (2011); Ayelet Shachar, Earned Citizenship: Property Lessons for
Immigration Reform, 23 YALE J.L. & HUMAN. 110 (2011).
7
KETTNER, AMERICAN CITIZENSHIP; [cites].
8
On deportation in American history, see DANIEL KANSTROOM, DEPORTATION NATION;
MAE NGAI, IMPOSSIBLE SUBJECTS.
9
FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW
BEFORE THE TIME OF EDWARD I, 458-467 (2d ed.1898) (reviewing the status of aliens in
English law); JAMES KENT, COMMENTARIES ON AMERICAN LAW, VOL. 2, 42-62 (1832).
10
Change was “contradictory” in a specific legal sense: some jurisdictions, such as
California, adopted property rights in the state constitution while simultaneously limiting
them through state statute. Few commentators noted the legal conflict.
11
See generally Tirres, supra note _.
12
Tirres, supra note _, Part II (A).
13
For studies that discuss property restrictions in recent state and local reform efforts, see
Kristina M. Campbell, Local Illegal Immigration Relief Act Ordinances: A Legal, Policy,
and Litigation Analysis, 84 DENV. U. L. REV. 1041, 1051-54 (2007); Daniel Eduardo
Guzmán, "There Be No Shelter Here": Anti-Immigrant Housing Ordinances and
Comprehensive Reform, 20 CORNELL J.L. & PUB. POL’Y, 399 (2010); Rigel C. Oliveri,
Between a Rock and a Hard Place: Landlords, Latinos, Anti-Immigrant Ordinances, and
Housing Discrimination, 62 VAND. L. REV. 55 (2009); Tirres, supra note __; Rose Cuison
Villazor, Rediscovering Oyama v. California: At the Intersection of Property, Race, and
Citizenship, 87 WASH. U. L. REV. 979 (2010).
4
based on alienage. 14 This article takes up a key moment on the path to
expanded, albeit still incomplete, property rights for non-citizens. This
expansion was not through private law interpretation, like many other property
reforms in the nineteenth century, but rather through state constitutional law.15
In the mid-nineteenth century, a significant number of state governments for the
first time adopted provisions in their state constitutions guaranteeing the
property rights of non-citizens.16 Prior to this period, state courts had restricted
non-citizen property rights, applying the English common law doctrine.
Additions to state constitutions dramatically altered this common law scheme.
Iowa was the first; the constitution of 1844 stated that "Foreigners who are, or
who may hereafter become residents of this State, shall enjoy the same rights in
respect to the possession, enjoyment, and inheritance of property, as native born
citizens.” Wisconsin, California and Michigan followed suit with almost
identical language in their antebellum constitutions. Seven more states
followed after the Civil War: Florida, West Virginia, Arkansas, Alabama,
Colorado, South Dakota, and Wyoming.17 In this article, I trace the histories of
the four first adopters – Iowa, Wisconsin, California, and Michigan – in order
to understand both the causes and the consequences of constitutionalizing
property rights for non-citizens.
The reader will note immediately that all four of these first adopters are
located west of the Ohio River. Why did law reform occur first in mostly
western states? One fairly straightforward answer lies in demography: these
were territories in need of population. Expansive land laws were perceived as
an inducement to settlement; it would make sense objectively for these
locations to be more encouraging of migration and settlement of outsiders. (It
was surely not a coincidence that these inducements to settlement were
constitutionalized around the same time that a newspaper editor coined the term
14
Tirres, supra note _; Allison Brownell Tirres, “From Truax v. Raich to U.S. v. Arizona:
Property, Liberty and the Diverging Paths of Alienage Law” (unpublished manuscript, on
file with author).
15
On nineteenth-century reforms of property law generally, see STUART BANNER,
AMERICAN PROPERTY: A HISTORY OF HOW, WHY, AND WHAT WE OWN, 6 (2011).
16
Historians and legal scholars have spent little time exploring the history of state
constitutional provisions relating to non-citizen property or to state constitution drafting in
general in the nineteenth century. Christian Fritz, “More than Shreds and Patches,” at 14
(“There has been a remarkable dearth of scholarly writing on nineteenth century
constitution-making.”) Those who have discussed these specific provisions have done so in
passing. Some have linked it to federal constitutional reforms, such as the passage of the
Fourteenth Amendment, but they have not demonstrated any causal connections. See, e.g.,
Charles H. Sullivan, Alien Land Laws: A Re-Evaluation, 36 TEMP. L. Q. 15, 28 (1962).
17
Three states – Pennsylvania, North Carolina, and Vermont – had alien property rights
provisions in their eighteenth-century constitutions. All three had repealed this language by
the time Iowa introduced its provision. See discussion at infra _.
5
“manifest destiny.”)18 But demographics alone do not explain this legal shift.
Key to understanding the shift in this property regime was the legal culture
created by federal territorial policy. This project demonstrates that there is an
underappreciated link between federal policy and state treatment of non-citizens.
In choosing how to sell the public lands and how to create a blueprint for the
governance of the western territories, the federal Congress decided to expand
rights for foreigners. The Land Ordinances of 1784 and 1785 jettisoned
common law restrictions on alien property ownership; the Northwest Ordinance
of 1787 allowed for alien suffrage. This meant that when it came time for Iowa
and other states in the west to draft their state constitutions, they had already
experienced decades of expanded rights for non-citizens.
The federal policies governing the territories affected state
constitutional developments in another, and more directly measureable, way.
These laws fostered the development of a land-owning immigrant electorate.19
In all four states that adopted these rights in the antebellum period, residents of
foreign birth had a vital role to play. Immigrant delegates served in all the
conventions. Federal policies gave them a seat at the table. Some were the
direct proponents and defenders of alien property and suffrage rights. Others
who were not foreign-born were cognizant that they had a foreign-born
constituency to represent, and that these residents would themselves be voting
to ratify the end product of the convention. This political power was vital in
securing expanding rights for the foreign-born, both naturalized and not. The
widespread acceptance of this utilitarian goal – the peopling of the frontier with
European migrants – was possible because of an already-established legal
culture of expanded alien rights and the presence of those of foreign-birth in the
convention halls themselves.
Through these changes to non-citizen property rights we see the direct
connections between federal land policy and state law. This connection is
striking in the context of the history of citizenship, since it challenges our usual
narrative of the nineteenth century. That narrative about citizenship hinges on
two interpretations of federalism: 1) that citizenship was largely a state and
local matter prior to the Civil War and Reconstruction,20 and 2) that federal
influence only stepped up in the 1860s with the passage of the Fourteenth
18
John L. O’Sullivan, Democratic Review, July 1845 (cited in Clyde A. Milner, II,
“National Initiatives,” in THE OXFORD ENCYCLOPEDIA OF THE AMERICAN WEST, eds. Clyde
A. Milner, II, Carol A. O’Conner & Martha Sandweiss, 166).
19
Other scholars have noted the vital ways that federal law shaped state and local politics.
See, e.g., Peter S. Onuf, The Expanding Union, in DAVID THOMAS KONIG, ED., DEVISING
LIBERTY: PRESERVING AND CREATING FREEDOM IN THE NEW AMERICAN REPUBLIC 75 (1995).
Few that I have found have discussed the ways that federal influence shaped the place of
immigrants in politics.
20
William Novak, The Legal Transformation of Citizenship in Ninteenth-Century America,
in THE DEMOCRATIC EXPERIMENT: NEW DIRECTIONS IN AMERICAN POLITICAL HISTORY, _
(2003) (arguing that citizenship in the antebellum United States was not a formal legal
designation but instead a localized combination of “the law of membership and personal
status”);
6
Amendment and in the 1880s with the passage of Chinese Exclusion Laws and
other immigration restrictions.21 This article presents a different story, one of
active antebellum federal involvement not just in recruiting migrants but also in
expanding non-citizen rights, via territorial law, and of state acceptance and
continuation of these practices into the post-Reconstruction era.22
Delegates to these state conventions actively debated the membership
rights of aliens, presenting their own interpretations of the extant law. Through
these debates, we can track a broader shift in the ideology of property. 23
Property ownership had been understood in the English feudal and aristocratic
tradition as a privilege of a few, not a right of many. This idea eroded in the
fledgling United States, and was especially under attack in the 1830s and 1840s.
Jacksonian democracy and the ideology of “free soil” demanded the expansion
of property rights to white men and, in some cases, to white married women.24
Underappreciated until now, I argue, is the extent to which these ideals eroded
the differences not only between nobleman and commoner and man and wife,
but also between citizen and non-citizen. These provisions moved the line
between insider and outsider, enabling foreigners to have rights of membership
– of property ownership and, in some states, suffrage – prior to naturalization.
Delegates to state conventions succeeded in creating such gradations of
membership because of their vision of a particularly “American” type of
property law: one that was modern, open, and inclusive, rather than closed,
feudal, and the province of only a select few. This system of property, they
asserted, would itself Americanize immigrants, by showing them what
independence really meant.
The inclusion of non-citizens in property ownership had a
corresponding and mutually-constituitive aspect of exclusion.25 The granting of
21
See Gerald Neuman, The Lost Century of Immigration Law (highlight state and local
restrictions of movement that predated the federal exclusions in the Gilded Age);
22
This episode of state constitution-making also usefully highlights lesser-known sources
for the constitutional protection of aliens. We usually pinpoint the turning point in the
constitutional protection of non-citizens to the famous case of Yick Wo v. Hopkins, which
extended protections of the Fourteenth Amendment to Chinese immigrants despite the fact
that they were not, and could not at that time become, naturalized citizens. Yick Wo v.
Hopkins, 118 U.S. 356 (1886). What these state constitutional provisions reveal is the
widespread acceptance, at a moment decades earlier than Yick Wo, of fundamental rights for
certain non-citizens.
23
Delegates to state constitutional conventions were a mix of professions: some were
lawyers, but many were unversed in the law – farmers, laborers, merchants, and others, both
elite and non-elite. The debates over alien property ownership give us a window onto
popular conceptions of property and its relationship to American nationality and American
identity.
24
On the free soil movement, see, e.g., CHARLES W. MCCURDY, THE ANTI-RENT ERA
NEW YORK LAW AND POLITICS, 1839-1865 (2001);
IN
25
On “inclusive exclusion,” see Devon W. Carbado, Racial Naturalization, in LEGAL
BORDERLANDS: LAW AND THE CONSTRUCTION OF AMERICAN BORDERS, eds. Mary Dudziak
and Leti Volpp, 41 (2006); see also EDMUND S. MORGAN, AMERICAN SLAVERY, AMERICAN
7
property rights to migrants was linked in statehood debates with the desire of
residents to divest American Indians of their property claims and to provide a
buffer against the in-migration of free blacks.26 The exclusive aspects of the
debates were a harbinger of what was to come in the revamping of alien
property restrictions in the twentieth century. These constitutional provisions
only went so far: they effectively ended the power of property to differentiate
citizen from non-citizen, but only to a point. They continued a core distinction
between resident and non-resident aliens. This careful line-drawing managed to
rid the state of the most objectionable parts of alien land laws – which
discriminated against upstanding members of the community, desirable settlers
and laborers – while retaining the most politically appealing parts, those gaged
to prevent foreign takeover and “absentee landlordism.” This line-drawing
would take a new form in the twentieth century, as states redrafted their land
laws to discriminate against those “ineligible to naturalization” (namely, Asian
migrants) and those who had roots in communist countries. Alien land laws
have proved remarkably adaptable, transforming to suit the aspirations or fears
of American citizens at particular moments.
Part I describes the federal treatment of alien property. It begins by
outlining the English legal doctrine governing alien property ownership, which
was largely adopted by the colonies and persisted in the common law of the
states after independence. Many areas of English property law died out or were
replaced during the eighteenth and nineteenth centuries, but alien legal
disabilities continued well into the antebellum era and beyond. The first
Congress discussed extending property rights to aliens as part of the first
Naturalization Law; these proposals failed, not because representatives were
not open to the idea but because they believed it was the province of the states,
not the federal government, to decide to extend such property rights. This
deference to the states did not prevent Congress from extending such rights in
the federal territories. I argue that the ordinances governing the Northwest
Territory, as well as later laws and treaties pertaining to the rest of the west,
created a federal policy of alien land rights. This federal legal history was an
important precondition for the creation of alien property rights in the states in
the 1840s.
Part II explains the process of transitioning from territory to state and
the important step of drafting a state constitution. It delves into the debates in
the four states that first adopted non-citizen property rights, describing the
major themes that emerge. The debates reveal multiple motivations for legal
FREEDOM; ROGERS BRUBAKER, CITIZENSHIP AND NATIONHOOD IN FRANCE AND GERMANY
23 (1992) (“As a powerful instrument of social closure, citizenship occupies a central place
in the administrative structure and political culture of the modern nation-state and state
system”).
26
On the migration of free blacks and freed slaves, see Eugene H. Berwanger, The Frontier
Against Slavery; Neuman, The Lost Century of Immigration Law; Kunal Parker, Making
Blacks Foreigners: The Legal Construction of Former Slaves in Post-Revolutionary
Massachusetts, 2001 Utah L. Rev. 75 (2001).
8
change: protecting vested property interests, encouraging future migration,
upholding ideals of American property law, and assimilating immigrants. Part
III puts these debates in the context of other, concurrent debates over the
migration of free blacks, the granting of universal suffrage, and the fear of
foreign corporate invasion. The move to expand rights was, on its face, about
inclusion: allowing some who had been denied these rights to claim them. Yet
it depended, both rhetorically and practically, on a measured exclusion of nonwhite landowners and non-resident foreigners.
State constitutional convention delegates believed that they were
engaging in a property law revolution. To a certain extent, they were right:
other states after the Civil War adopted similar provisions, and some rid
themselves of alien law laws via statute. Yet by the early twentieth century,
this trend was turned on its head; four states adopted constitutional provisions
or legislation expressly barring certain foreigners from owning property, other
states remained silent in their constitutions, while some with guarantees of noncitizen rights failed to enforce them. Part IV discusses this retrenchment and
proposes reasons why alien land laws have not completely disappeared from
American law. As we shall see, the creation of non-citizen property rights in
state constitutions is one chapter in a long and as yet unfinished story of the
contested relationship between property and alienage.
PART I: ALIEN PROPERTY AND FEDERAL POLICY Alien property rights were understood at the time of the founding to be
a matter of common law and thus to be under state jurisdiction. The federal
Congress upheld this understanding when it declined to grant property rights to
aliens independent of citizenship. Yet Congress did not hesitate to extend these
rights when crafting the laws to govern the western territories. To understand
the significance of this move, we first have to examine the English legal
tradition of restricting alien property, as well as its adoption in the states after
Independence. In jettisoning these restrictions in the western territories, the
federal government contributed to the formation of a society accustomed to
expansive rights for non-citizens.
A. Alien Property in English Common Law
Courts in the fledging United States adopted various tenets of English
common law. Alien property disabilities were among them. The idea of
restricting a foreigner’s access to land stemmed from the structure of feudalism
itself.27 Under feudal land tenure, land was directly correlated to allegiance.
All land was under the control of the monarch, who granted it to individuals
27
SIR FREDERICK POLLACK AND FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH
LAW BEFORE EDWARD I, VOL. 1, 207-389 (Cambridge, 1895) (on the structure of land
tenure).
9
only upon assurances of their service to him. Such assurances took various
forms, typically either financial or military – as a landholder, you had a duty to
provide money, defense, or other such service to the sovereign. There was not
a concept of a modern “citizen”; in a monarchy, all those owing allegiance to
the king were his subjects. Holding land was the privilege of subjectship; those
who were subjects of another – say the king of France – could not hold English
lands.28 As an English legal scholar later summarized: “By feudal law every
tenant of lands owed fealty to the lord of whom his lands were holden. In
England the King is the ultimate feudal lord and owner of all lands, and an alien
owing allegiance to a foreign prince was held incapable of taking the oath of
fealty which imposed obligations that might be inconsistent with the fidelity
due to his own sovereign.”29
From the feudal era until the late nineteenth century, aliens in England
could not inherit property or leave it to others upon death; if they purchased
property, they held it only so long as the King allowed. They were “disabled to
hold by purchase except by the King’s license,” noted Blackstone in his
Commentaries on the Law of England. The ability to inherit or devise property
was not available to them since they had not “inheritable blood in them.” In
this way, Blackstone noted, “they are on a level with bastards.”30
Such an understanding grew out of a time not only of monarchical rule
but also an idea of perpetual allegiance: one could not hold dual or multiple
citizenships, and one’s allegiance was not a matter of choice.31 Subjectship was
not by consent but by duty. Legal impediments for aliens went beyond
property rights: prior to the seventeenth century, aliens were unable to sue in
English courts.32 Alien property disabilities interacted with married women’s
property law; a woman who was an alien could be barred from receiving her
dower, according to Blackstone. 33 Owners who attempted to sell, rent or
otherwise convey their property to an alien would lose that property to the
crown through forfeiture, since such a transaction would be “contrary to law.”34
28
POLLACK & MAITLAND, supra note _, at 442 (“An alien cannot hold land in England. If
the person to whom land would descend according to the common rules of inheritance, be
an alien, it misses him and passes to some remoter kinsman of the dead man. If, on the
other hand, an alien obtains land by gift, sale, lease, or the like, the transaction is not a
nullity, but the king can seize the land and keep it for himself”).
29
H.S.Q. HENRIQUES, THE LAW OF ALIENS AND
THE ALIENS ACT, 1905 (Butterworth, 1906), 4.
30
SIR WILLIAM BLACKSTONE, COMMENTARIES
“Blackstone’s Commentaries”].
NATURALIZATION
ON THE
LAWS
OF
INCLUDING THE TEXT OF
ENGLAND, 328 [hereafter
31
See KENT, supra note_, at 42 (“It is the doctrine of the English law, that natural born
subjects owe an allegiance, which is intrinsic and perpetual, and which cannot be divested
by any act of their own”).
32
H.S.Q. HENRIQUES,
THE ALIENS ACT, 1905
THE LAW OF ALIENS AND NATURALIZATION INCLUDING
(Published 1906 by Butterworth in London), 2.
33
Blackstone’s Commentaries, vol. 2 (4th ed., 1853), 172.
34
Blackstone’s Commentaries, 351, 358.
THE TEXT OF
10
There were exceptions to the rule. Some foreigners were granted the
status of denizen, if the sovereign chose to extend it. Denization empowered
aliens to hold a life estate in real property; they were able to devise this
property but only to after-born children.35 “A denizen,” wrote Pollack and
Maitland, “can hold land, and he can acquire land by gift, sale or the like, but
he can not inherit, and a child of his born before the act of denization can not
inherit from him.”36 Alien merchants were granted some exceptions so that
they could rent property for their trade.37
To be sure there were not just structural but also political (albeit not
necessarily well-founded) concerns underlying the restrictions. Foremost
among them was fear of foreign invasion. Blackstone admitted that the reasons
for alien disabilities were not “strictly feudal,” but based also on “a principle of
national or civil policy.” “If lands had been suffered to fall into their hands
who own no allegiance to the crown,” he elaborated, “the design of introducing
our feuds, the defence of the kingdom, would have been defeated.”38 Alien
landholding in this view was a threat not only to the land tenure system, which
depending on ties of loyalty, but also to the entire kingdom itself.
In the colonies, alien disabilities were sustained in the courts, if not
always in actual practice. Historian Polly Price notes that “throughout the
colonial period…restrictions on alien landholding mirrored those of England.”39
There were some exceptions; some colonial governments enacted laws to
exempt certain aliens at certain times from the operation of the common law
rules.40 Land laws were not always uniformly prosecuted. Some aliens did
hold land and pass it on to their heirs, since they were not challenged and
governments did not act. This left some Americans confused as to the state of
the common law, some assuming that aliens were able to hold lands.41 Yet for
the most part, the English common law rules regarding alien property were
adopted wholesale, both prior to independence and well after. The first treatise
of American law, James Kent’s Commentaries on American Law, published in
1836, reiterated Blackstone, reciting all the various forms of disabilities in
holding, transferring or devising property. An alien, wrote Kent, “cannot
acquire a title to real property by descent, or created by other mere operate of
law.” An alien, even in the U.S. in the 1830s, is “exposed to the danger of
35
James E. Pfander and Theresa R. Wardon, Reclaiming the Immigration Constitution of the
Early Republic: Prospectivity, Uniformity and Transparency, 96 VA. L. REV. 369, 376
(2010); Blackstone’s Commentaries, 329.
36
POLLACK & MAITLAND, English Law Before the Time of Edward I, 2 ed., 460.
37
POLLACK & MAITLAND, 459.
38
Blackstone’s Commentaries (1835), 328.
39
Price at 158.
40
Id.
41
See, e.g., 1 Annals of Congress 1109 (noting that Representative Tucker “conceived it the
policy of America to enable foreigners to hold lands, in their own right”) (Feb. 3, 1790).
11
being divested of the fee, and of having his lands forfeited to the state.” Chief
Justice Shaw of Massachusetts stated in an 1834 case that the rule against alien
inheritance was “as among the first principles of the law of real property.”42
Many elements of English property law, initially imported to the
colonies, did not survive into the nineteenth century. Tenurial obligations gave
way to land held in fee simple; various forms of related intangible property –
like that in offices or common lands – disappeared. The doctrine of
primogeniture was replaced by state statutes allowing for the equal distribution
of land. The fee tail was eliminated.43 Coverture was pushed into near oblivion
by married women’s property acts. All these practices were judged to be feudal
relics, not suited to a modern republic with plentiful lands and an aversion to
entrenched aristocracy. Lawyers in the nineteenth century described “a
complete revolution”44 in property law, noting that there had been “almost total
change in the system of laws relative to property.”45 As Stuart Banner notes,
“The old conceptual structure of land ownership had vanished.”46
Alien property disabilities were a glaring exception to this trend. They
continued in the common law after the Revolution and into the nineteenth
century; indeed, they persist today in some states, most often by statute.47 The
persistence of these disabilities well into the nineteenth and twentieth centuries
is all the more striking given that England, from whence the tradition came,
granted full property rights to aliens in 1870, overturning all prior common law
restrictions. 48 Price argues that the persistence demonstrates the “relative
autonomy” of state courts in this era.49 Judges resisted alterations in common
law practices despite strong economic and social forces that would seem to
point towards the expansion of alien land rights. “Capitalism may be a
42
Slater v. Nelson, 32 Mass. 345, 350 (1849).
43
The demise of the land tenure system and feudal obligations is traced in Stuart Banner,
American Property, 4-22.
44
“Law of Real Property,” American Jurist 1 (1829), 98.
45
St. George Tucker, ed., Blackstone’s Commentaries (Philadelphia: William Young Birch
and Abraham Small, 1803), 1:x, v [check].
46
STUART BANNER, AMERICAN PROPERTY: A HISTORY OF HOW, WHY, AND WHAT WE OWN,
6.
47
See Allison Brownell Tirres, Property Outliers, at __; Price, 152-53.
48
The British Naturalisation Act of 1870 declared that “real and personal property of every
description may be taken, acquired, held, and disposed of by an alien in the same manner in
all respects as by a natural-born British subject.” 33 Vict. c. 14 s. 2. One remaining
statutory restriction at this time prevented aliens from owning British ships, but they were
otherwise “under no incapacity by common law” as to property ownership. Goodeve’s
Modern Law of Personal Property, 418.
49
Polly Price, Alien Land Restrictions in the American Common Law: Exploring the
Relative Autonomy Paradigm, 63 Am. J. Legal His. 154 (1999), citing Robert W. Gordon,
Introduction: J. Willard Hurst and the Common Law Tradition in American Legal
Historiography,10 L. & Soc'Y REV.9, 38-41 (1975)
12
liberating force,” she writes, “but alien land restrictions in the common law
withstood the discipline of the market toward more stable and secure land
transactions.”50
Some states began to change the law through statute during this period.
Kent noted that several states, including Maryland, Kentucky, Ohio, Delaware,
New York and Massachusetts, had passed laws enabling a “natural born citizen”
to inherit from an alien parent.51 A few had apparently removed all prohibitions
on alien property ownership via statute, while others had done so for those
aliens who took an oath and pledge that they would naturalize as soon as
possible.52 Yet when state convention delegates met in the 1840s to draft
constitutions in Iowa, Wisconsin, Michigan and California, these statutory
provisions merited little mention. Instead, delegates spoke most forcefully of a
different legal basis for expanding rights: federal law governing the territories.
Only by understanding the legal culture created by federal land policy can we
understand the creation of constitutional property rights for non-citizens.
A. Property and Naturalization
Members of the first Congress were clearly aware that such disabilities
existed in English common law, and they assumed that they would continue.
This fact is apparent not because of any direct attempts by the federal congress
to revise the laws but instead because of the ways that considerations of
property factored into discussions of naturalization policy.
Naturalization, property, and national interest were intimately related.
The framers believed that immigration was of vital importance to sustaining the
future of the colonies and, later, of the fledgling republic.53 English controls on
naturalization were a significant factor leading to rebellion. In the Declaration
of Independence, the framers expressed frustration at the King’s obstruction of
migration through difficult and onerous naturalization laws. The King, they
complained, “has endeavored to prevent the population of these States; for that
purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass
others to encourage their migrations hither, and raising the conditions of new
Appropriations of Lands.” 54 Without influxes of immigrants, the colonies
would have difficulty maintaining a presence and establishing new ground in
the New World. The dynamic was aptly summed up by Daniel Defoe in the
early eighteenth century: “[T]he more people the more trade; the more trade,
50
Price, 155.
51
Kent’s Commentaries, 55-56.
52
Kent’s Commentaries, 68-70.
53
On the relationship between federal policy and migration generally, see ARISTIDE
ZOLBERG, A NATION BY DESIGN: IMMIGRATION POLICY IN THE FASHIONING OF AMERICA
(2006).
54
The Declaration of Independence para. 9 (U.S. 1776). [could insert more here on colonial
practices and English crack-down – see Pfander @382]
13
the more money; the more money, the more strength; and the more strength, the
greater the nation.”55
The federal Constitution granted Congress the power to draft “an
uniform law of Naturalization” for the country.56 The states had temporarily
exercised such power themselves. Between 1783 – with the signing of the
Treaty of Peace – and the 1788 ratification of the Constitution, the states issued
their own naturalization laws. They were remarkable for their lack of rigor.
States used their naturalization laws as a means of competing for migrants.
State competition through the naturalization laws was seen by many as a
problem, since it conflicted with the idea of shared privileges and immunities.
There was widespread agreement that the power to craft a law of naturalization
should belong to the federal government alone. “Widespread acceptance of the
argument for a national standard,” note James Pfander and Theresa Wardon,
“made the transfer of naturalization power to the new federal government one
of the least controversial features of the new Constitution.” 57 The first
naturalization law, enacted by the first federal Congress in 1790, made
citizenship available to “free white persons” who had resided in the U.S. for
two years, one of them in the state where he seeks naturalization. 58 An
applicant also had to demonstrate “good moral character” and pledge to support
the Constitution.59
The naturalization law enacted in 1790 makes no mention of alien
property rights, but the issue of land ownership figured prominently in the
debates leading to its adoption. Members were united in their assumption that
land and migration were intimately related, and they discussed this dynamic
repeatedly. Representative Lawrence of New York opined “The reason of
admitting foreigners to the rights of citizenship among us is the encouragement
of emigration, as we have a large tract of country to people.”60 Representative
Page of Virginia plainly caught the relationship between land, naturalization,
and inducement to migrate: every man who takes the oath of allegiance and
intends residence in the U.S., he said, “ought to be enabled to purchase and
hold lands, or we shall discourage many of the present inhabitants of Europe
from becoming inhabitants of the United States.”61
Attentive to the relationship of property rights to settlement, members
proposed clauses that would explicitly ensure such rights in the federal
55
Daniel Statt, Foreigners and Englishmen: The Controversy over Immigration and
Population, 1660–1760, at 49 (1995) (quoting article circa 1709), cited in Pfander, 372 n. 46.
See ARISTIDE ZOLBERG, A NATION BY DESIGN.
56
U.S. Const., Art. 1, sec. 8, clause 4.
57
Pfander, supra note _, at 385.
58
Naturalization Law of March 26, 1790, 1 Stat. 103 (1790).
59
1 Stat. 103.
60
1 Annals of Congr. 1111 (Lawrence) (Feb. 3, 1790).
61
1 Annals of Congr. 1115 (Page) (Feb. 3, 1790).
14
naturalization law. An early version of the act would have allowed aliens to
own land after one year of residence, and to hold elective office after two years.
What they called the “progressive” granting of citizenship rights over time
(rather than all at once) received support among representatives for a number of
different reasons. Members were in general agreement that alien property
disabilities had no place in the republic. Even those who were most opposed to
lax naturalization requirements seemed sanguine about removing property
restrictions, especially for resident aliens. Representative [ ] Clymer preferred
significant residence requirements for political office-holding, but he had “no
objection to foreigners being admitted to hold property, without any previous
residence.”62 Clymer thought in terms of migration of both people and money;
he argued that “it might be good policy to admit foreigners to purchase and
hold lands in fee simple, without ever coming to America; it would, perhaps,
facilitate the borrowing of money of Europeans, if they could take mortgages,
and be secure.”63 Representative Smith of South Carolina argued for a separate
clause to be inserted in the Naturalization law, one that would ensure land
rights but would not make them dependent on the other requirements of
naturalization.64 Other legislators were uncomfortable with granting land rights
without a clear statement of allegiance; they argued that either naturalization
was necessary or some other indication that the alien intended to naturalize.
Representative Tucker proposed a compromise, stating that he would allow for
land rights for recently arrived immigrants but make full title contingent on a
three-year probationary period.65 The three years seemed like enough in his
eyes, apparently, to demonstrate allegiance and an intent to remain.66
These proposals to guarantee alien property rights short of
naturalization were popular on principle but lost out to a broader institutional
concern.
Legislators argued, apparently successfully, that the federal
government was not the right creator nor guarantor of such rights. It was the
states, not the federal Congress, that should decide matters of property law and
suffrage. This insight was convincing in part because states had already done
so prior to the debates. The Pennsylvania Constitution of 1776 granted
62
1 Annals of Cong. 1122 (Clymer) (Feb. 3, 1790).
63
See, e.g., comments of Representative Clymer, 1 Annals of Cong. 1121).
64
Comments of Rep. Smith (S.C.), 1 Annals of Cong. 1118 (Feb. 3, 1790) (“the object of his
colleague was nothing more than to let foreigners, on easy terms, be admitted to hold lands;
that this object could be better effectuated by introducing a clause to that purpose”).
65
1 Annals of Cong. 1124 (Tucker) (Feb. 3, 1790) (explaining that “he would withdraw, and
propose to new model the clause, so as to allow aliens to be admitted to so much of the
rights of citizenship as to be able to hold lands, upon taking the necessary oaths,” but “with
a proviso, that the titles to real estates should not be valid, unless they continued to reside
for the term of three years in America”). As part of this proposal, he suggested a three-year
residency requirement for the vote and standing for office.
66
On the role of declarations of intent in immigration and nationality law, see HIROSHI
MOTMOURA, AMERICANS IN WAITING: THE LOST STORY OF IMMIGRATION AND CITIZENSHIP
IN THE UNITED STATES (2007).
15
property rights to aliens who had declared their allegiance and allowed them to
be elected to state office after two years as a “free denizen.”67 One of the
Pennsylvania representatives, William Maclay, argued strongly for making
these rights part of the federal naturalization law; he drew upon Pennsylvania’s
history of granting alien land rights, arguing that in that state “we are used to
the reception and adoption of strangers,” and that failing to grant such rights in
the Naturalization bill would be a sign of “illiberality” and “spite.”68 Maclay
was outnumbered by others who believed it to be not within the power of the
federal government to make it so. As Maclay recounted the arguments against
him,
…the disability of an Alien to hold lands arose from the
common law and was separable from the rights of
Naturalization as in the Case of Denization, in
England….When an alien therefore was enabled to hold real
Estate, it was in reality by repealing part of the common law
with respect to him, not by giving a power but by taking away
a disability. It therefore strictly speaking rested, with the
respective States whether they would repeal the common Law
with respect to Aliens, touching the point of holding property,
and being a pure state concern had no Occasion to be made any
mention of in the Naturalization Act, but must remain to be
settled by the different States by Law…69
Citizenship rights could be granted “progressively,” that is, not all at once, but
the appropriate place to do this was in the states, not the federal government.
As Representative Patterson reflected in his record of the proceedings, “We can
make a Citizen; we cannot do less.” 70 The final version of the first
Naturalization Law thus made no mention of either property or political rights,
67
Pennsylvania Constitution of 1776: In the section “Oath or Affirmation of Office”,
Section 42:
Every foreigner of good character who comes to settle in this state, having
first taken an oath or affirmation of allegiance to the same, may purchase, or
by other just means acquire, hold, and transfer land or other real estate; and
after one year's residence, shall be deemed a free denizen thereof, and entitled
to all the rights of a natural born subject of this state, except that he shall not
be capable of being elected a representative until after two years residence.
68
KENNETH R. BOWLING AND HELEN E. VEIT, EDS., THE DIARY OF WILLIAM MACLAY AND
OTHER NOTES ON SENATE DEBATES, 216, 218, 220 (1988).
69
Diary of William Maclay, March 17, 1790, supra note _, at 221.
70
The Notes of William Paterson, in KENNETH R. BOWLING AND HELEN E. VEIT, EDS., THE
DIARY OF WILLIAM MACLAY AND OTHER NOTES ON SENATE DEBATES, 494 (1988).
16
leaving those by implication to the states to decide. Naturalization was federal
law, but property and suffrage qualifications were ultimately state law.71
The debates over the first naturalization law and its subsequent
iterations reveal that members of Congress were aware of alien land restrictions
and that they sought to limit the effect of these common law disabilities on
migrants’ willingness to settle. They did so not by guaranteeing these rights as
a federal matter but instead by crafting a relatively short period of residency
and non-onerous requirements for naturalization, enabling foreigners to obtain
the property rights of citizens relatively quickly. These debates also reveal an
awareness and an acceptance of state power to decide to allow aliens to own
property, hold public office, or vote before naturalization.
Thus federal government control over naturalization only partially
affected its control over the rights of aliens in the states. The situation was
strikingly different, however, when it came to those parts of the U.S. that were
not yet fully-incorporated into the union: the western territories.72 When it
came to governing the territories, the federal government had a much more
expansive role to play in crafting both property law and alien rights.
B. Federal Land Policy and the Northwest Territories
The first Congress was unwilling to create gradations of membership in
naturalization law. This was a departure from European precedent; in Europe,
monarchies had levels of subjectship that allowed some foreigners greater
rights even if they did not profess total allegiance. The first Congress could
have taken this approach – and, as we have seen, they contemplated it – but
refused. Their hesitation was not from disdain for “progressive” citizenship,
but instead because of their commitment to federalism. States could choose to
grant greater membership rights to foreigners, if they wished; the federal
government would describe what it would take to become a fully-fledged
American citizen, and no less.
Yet just a few years earlier, Congress had demonstrated its acceptance
of gradations of membership when it drafted the statutes and compacts
governing the federal lands in the west. With independence and the signing of
the Treaty of Peace in 1783, the former colonies gained not only their own
freedom but also control over vast landholdings to the west. The fledgling state
of Virginia ceded control of the Northwest Territory, also known as the
Virginia cession, in 1784. The federal government was then confronted with
the question of how best to govern and settle the countless acres of public lands
now in federal possession. The first regulations appeared in the Land
71
On the reliance on states as a locus of voting rights, see Minor v. Happersett, 88 U.S. 163
(1874).
72
The northwest territory covered lands west of the Ohio river. The area eventually became
the states of Ohio, Indiana, Illinois, Michigan, and Wisconsin. The territory also covered a
portion of what would become Minnesota.
17
Ordinances of 1784 and 1785.73 These laws created a market for public lands,
using the public land survey system developed by Thomas Jefferson. In
crafting the land ordinances, Congress intentionally sought to shut out certain
buyers from the market. An earlier proposal would have allowed those already
on the lands – squatters – some priority of claim, but this was abandoned.
Squatters, instead of getting preferential treatment, were debilitated by the
requirement of purchase of a specified number of acres.74 Congress also feared
land speculators – those who would purchase vast acres simply to raise prices
and resell. Congress intentionally prevented ownership by those of modest
means by laying out relatively large sections requiring a minimum purchase
price of $640. [Discuss Jefferson’s vision of settler society in the west here.]
Congressional disdain for speculators and squatters is a familiar story;
less well known is the extent to which the western project depended on a vision
of foreign settlement. Foreigners featured prominently in debates and
correspondence as likely, and desired, purchasers of the federal lands.75 The
arrival of immigrants reassured those along the eastern seaboard who feared
that all their industrious, hardworking residents would flee to the west if the
terms were too good. The depopulation of the east would be prevented by an
influx of immigrants, who would either head west themselves or enter
industries in the east. Cognizant of the connection between land and
inducements to immigration, Congress abandoned common law property
restrictions on aliens in the market for public lands. The ordinances allowed for
free purchase by aliens, without fear of escheat to the government.
The Northwest Ordinance of 1787 laid the groundwork for the
governance of the territories and their eventual admission to the union. The
federal government made specific substantive legal demands on the new
territories that were unlike anything then demanded of the states. Section 2
established a uniform law of inheritance, jettisoning primogeniture (as states
themselves were already doing); articles one through six outlined a bill of rights,
guaranteeing religious liberty, the right of habeas corpus, and outlawing slavery
or indentured servitude (although failing to emancipate those slaves brought
73
On the Land Ordinances of 1784 and 1785, see ONUF, supra note _, at 21-43; ZOLBERG,
supra note _, at 66-69.
74
PETER S. ONUF, STATEHOOD AND UNION: A HISTORY OF THE NORTHWEST ORDINANCE 30
(1987) (“The cost of federal lands under the 1785 land ordinance would block out poor, lazy
squatters; instead, the territory would attract industrious settlers determined to recoup their
investment by developing their property and finding markets for their products.”). By 1817,
Congress had lowered the required acreage from 160 to 80 in some areas. ZOLBERG, supra
note _, at 118.
75
George Washington noted in August of 1785 that the west would “more than
probably…be composed in a great degree of Foreigners.” Washington to Richard Henry
Lee, Aug. 22, 1785, in Fitzpatrick, ed., Washington Writings, 28: 231 [cited in Onuf, 164 n.
74];
18
into the territory). 76 The Ordinance laid out a procedure for the eventual
adoption of the territories into the union. Territories could form a governing
legislature and eventually could petition for statehood once they had reached a
specific number of “free inhabitants.” Congress intentionally used the word
“inhabitant” rather than “citizen” here. The ordinance enabled aliens to count
not only toward the requisite population numbers but also to count as voters:
section nine stated that non-citizens could cast a vote for their representatives as
long as they had a freehold interest in 50 acres of land and two years of
residence in the district. Office-holding was extended to non-citizens as well;
they were qualified to stand for election as long as they had three years of
residence in the district and a freehold interest in 200 acres.77 In combination,
the Northwest Ordinance and the land ordinances provided a strong grounding
for non-citizen rights – both of property and of suffrage – in the western
territories.
Various components of territorial law came under fire, particularly the
provisions outlawing slavery, yet expansive land policies remained. The
Homestead Act of 1862 granted homesteads not only to citizens but also to
those who had declared their intent to become citizens. Section one provided
“That any person who is the head of a family, or who has arrived at the age of
twenty-one years, and is a citizen of the United States, or who shall have filed
his declaration of intention to become such, as required by the naturalization
laws of the United States, and who has never borne arms against the United
States Government or given aid and comfort to its enemies, shall, from and
after the first January, eighteen hundred and sixty-three, be entitled to enter one
quarter section or a less quantity of unappropriated public lands…” The
declaration of intent could be filed immediately upon arrival in the country; it
was the first step towards naturalization, which could be achieved after a
residency of five years under the Naturalization Act of 1795.78 [Note: Will
add more discussion of Homestead Act, and debates leading up to it, here]
Together, the land ordinances and the Northwest Ordinance, and later
the Homestead Act, created a federal policy of alien property and political
rights. The territories did not have to abide by the demands of the ordinances
once they became states; with statehood, they would have sovereignty over
their lands and over voting procedures and qualifications for their residents.79
Yet for reasons explored in the next section, many of the states originally
covered by these territorial laws continued to provide these more expansive
rights. Federal law created the preconditions, both by creating a legal culture
76
See PAUL FINKELMAN, SLAVERY AND THE FOUNDERS: RACE AND LIBERTY IN THE AGE OF
JEFFERSON 38-39 (2d ed., 2001) (arguing that the ambiguity of the section outlawing slavery
actually facilitated continued enslavement in the territories rather than hastening its end).
77
“An Ordinance for the government of the Territory of the United States northwest of the
River Ohio,” July 13, 1787, supra note _.
78
Naturalization Act of 1795, 1 Stat. 414 (1795); MOTOMURA, supra note _.
79
Cite to Beubien case here.
19
accustomed to non-citizen rights and by encouraging the settlement of aliens
themselves, who could then expend political power in territorial legislatures
and, ultimately, constitutional conventions.
PART II: CRAFTING CONSTITUTIONAL PROPERTY RIGHTS FOR NON-­‐CITIZENS In the nineteenth century, eleven states added provisions in their state
constitutions guaranteeing property rights for non-citizens. All but two of these
– Alabama and Florida – are west of the Ohio River. Two of these were states
formed out of the Northwest Territory: Wisconsin and Michigan. Five were
entirely or partially products of the Louisiana Purchase, in 1803: Arkansas,
Colorado, South Dakota, Wyoming, and Iowa. One, California, was part of the
prize of the Mexican cession in 1846. One – West Virginia – was carved off of
the Virginia territory during the Civil War. This section focuses on the
antebellum first adopters of alien land rights: Iowa (1846), Wisconsin (1848),
California (1849), and Michigan (1850).80 These four states led the way. They
were followed by seven others after the Civil War.
There are key similarities among these four states. Each was newly
admitted to the Union; the constitutions containing the alien property rights
were their first efforts. (In the case of Iowa and Wisconsin, it took two tries,
since in each state the first constitution failed ratification by the populace.)
Each state’s government was actively concerned with peopling the state, both to
achieve the requisite numbers for statehood and to ensure a prosperous future.
Migration was not only desired to increase the wealth of the state but also, in
some cases, to ensure the ouster of Native American or Mexican American land
claims. Alien land rights figured then, as they did in the late eighteenth century,
as a direct inducement to settlement and also, by extension, to western conquest.
The economic imperative to settlement was strong, but it alone cannot
explain why state convention delegates included alien property rights in their
constitutions. The provisions were a direct result of the particular legal culture
of the territories. Past practices informed the delegates. Each had a legacy
different from the eastern seaboard states. Wisconsin, Michigan and Iowa each
had a decades-long history with territorial land policy, which allowed for
gradations of alien rights of both suffrage and property ownership. California,
for its part, had a legal heritage in Spanish and Mexican law. California was
supposed to abide by an additional federal agreement: the Treaty of Guadalupe
Hidalgo, which guaranteed Mexican property and political rights. Federal
policy, federal treaty, and Mexican legal tradition created the preconditions for
80
BENJAMIN FRANKLIN SHAMBAUGH, FRAGMENTS OF THE DEBATES OF THE IOWA
CONSTITUTIONAL CONVENTIONS OF 1844 AND 1846 (1900); MILO MILTON QUAIFE, THE
CONVENTION OF 1846 (State Hist. Society of Wis., Jan. 1919); JOHN ROSS BROWNE, REPORT
OF THE DEBATES IN THE CONVENTION OF CALIFORNIA (J.T. Towers, Jan. 1850); REPORT OF
THE PROCEEDINGS AND DEBATES OF THE CONVENTION TO REVISE THE CONSTITUTION OF THE
STATE OF MICHIGAN (R.W. Ingals, Jan. 1850); [add cites].
20
alien rights in the new states of west. State delegates transformed these
practices into higher law. In doing so, they made a strong ideological assertion
of what they saw as a particularly American idea of widespread, democratic
property ownership.
A. From Territory to State: The Process of Creating Constitutions
The Northwest Ordinance laid out an orderly procedure for eventual
self-government of the lands covered by the act. Once a population reached
5,000 male inhabitants, the residents could elect a territorial legislature; upon
reaching a population of 60,000, they could seek an Enabling Act from
Congress, allowing the territory to convene a convention to draft a
constitution.81 The process was similar for lands gained through the Louisiana
Purchase. [Add details here]
Congress had created the steps, but many states sidestepped some or all
of the specified procedures. [describe here] Ohio was the first to seek
statehood, petitioning Congress for an Enabling Act in 1803 and holding a
constitutional convention shortly thereafter. Starting in the 1830s, many states
proceeded without such an act of Congress; as Gordon Morris Bakken notes,
“the absence of enabling acts corresponded to the congressional
democratization of the territorial system itself.”82 Territorial governments were
in the driver’s seat, so to speak; they proceeded to elect delegates and write
constitutions without requisite population levels or congressional authorization.
Their efforts were not rebuffed; Congress accepted these new states, evincing,
Bakken notes, a “laissez faire attitude” that allowed “great latitude for territorial
action.”
One explanation for congressional acquiescence was the increasing
concern that the provisions of the Northwest Ordinance were not, in fact, in
conformance with the federal Constitution. [Onuf here] Territorial residents
were generally of mixed minds. Some resented federal domination, seeking
self-government; others feared the political turmoil and instability as well as the
expense that might emerge from state status, and counseled gradual change.83
Wisconsin was one of the last states admitted after 1830 that followed
the required steps of the Ordinance.84 It was organized as a territory in 1836
through an act of Congress. Population grew rapidly, from an estimated 3,000
81
Northwest Ordinance, art. 5.
82
GORDON MORRIS BAKKEN, ROCKY MOUNTAIN CONSTITUTION MAKING, 1850-1912, at 5
(1987).
83
BAKKEN, supra note _, at 6 (“Part of any statehood movement was overcoming objection
to statehood”).
84
However, even Wisconsin deviated somewhat; the territorial legislature passed an act
authorizing a statehood vote and a subsequent constitutional convention before Congress
had issued an enabling act. The Enabling Act was passed after this law but before the
convention convened. 9 Stat. L. 56. Brown, supra note _, at 654 n. 23.
21
persons in 1830 to more than 155,000 in 1846.85 [insert similar demographic
information for the other three states here, as well as the process for selecting
delegates]
When convention delegates met in in these states, they had a clear
outline to follow, thanks to the requirements laid out in the federal ordinances
and treaties. They also had a sense of power and choice. They were not
drafting constitutions in a vacuum. They were able to refer to decades of other
state constitutions. As Christian Fritz has shown, western convention delegates
in the nineteenth century frequently drew upon compilations of state
constitutions, legal treatises, and other materials as they drafted their own
constitutions.86 They engaged in “extensive borrowing,” Fritz writes, but they
were not purely derivative: they “still discussed and wrestled with
constitutional ideas in those provisions”; they compared other constitutions
with an eye to deciding what made the most sense for their particular place and
population.87
In general format these fledgling state constitutions were not much
different from previous late eighteenth- and early nineteenth-century state
constitutions. They contained discrete sections: preamble and boundaries; a bill
of rights; separate sections on legislative, judicial, and executive functions.88
They generally addressed the same core topics.
They differed quite
significantly, however, in the range of additional topics covered. The climate
of state conventions was open to broad-based considerations. As Fritz and
other scholars have shown, delegates in the mid- to late-nineteenth century
began a trend of constitutional legislation, meaning that they were comfortable
enacting regulations in constitutions that might, in earlier times, be considered
beneath a constitution. They embraced a far greater level of specificity and
detail, for better or worse. They also began in this era to grant more expansive
rights than allowed in the federal Constitution (a trend that continues into the
twenty-first century).89 These trends set the stage for a more vocal attention to
85
Ray A. Brown, The Making of the Wisconsin Constitution, 1949 WIS. L. REV. 648, 649
(1949).
86
Christian G. Fritz, State Constitution-Making, 25 RUGTERS L. J. _, 975-983 (1994)
(“Virtually all state conventions were influenced by earlier constitutions, constitutional
experience, practice, and interpretations”). See also Bakken, supra note _, at 12 (“The
tradition [in the Rocky Mountain states] was one of borrowed provision and periodic
innovation reflective of contemporary concerns”).
87
Fritz, supra note _, at 981. See also Fritz, on Cali Bill of Rights, at (“…the nineteenth
century state constitutional conventions produced constitutions that reflected both
continuities with eighteenth century American constitutionalism and the concerns of the age
in which they were created.”)
88
See Fritz, Shreds and Patches, at 31 (describing the general contours of mid-nineteenth
century constittuions).
89
Kermit Hall, Mostly Anchor and Little Sail: The Evolution of American State
Constitutions, in PAUL FINKELMAN AND STEPHEN E. GOTTLIEB, EDS., TOWARD A USABLE
PAST: LIBERTY UNDER STATE CONSTITUTIONS, 388, 389 (2009); G. ALAN TARR,
UNDERSTANDING STATE CONSTITUTIONS 97 (1998) (“state constitution-makers…came to
22
property rights, and delegates felt empowered to be able to consider them
outside of the traditional common law restraints.
B. Of State Power and Alien Rights
The question of the proper extent of the civil rights of aliens featured
prominently in constitutional conventions in the states that would emerge from
the western territories. The rights of property and of suffrage were the two
primary concerns. They were often interwoven into each other – to those
supporters of rights, the fact that a foreigner had purchased property meant that
he was entitled to the vote; the fact that he could vote meant that property
should be as available to him as it was to citizens. Delegate W.H. Clark gave a
stirring defense of alien suffrage in the Wisconsin debates of 1846: foreigners
left the “ties of friendship, of kindred, and of home,” and “consequently came
to America, paid their money into the treasury of the United States, and became
tenants of a large portion of the public domain, and have therefore a common
interest with and an attachment to the community and consequently the right of
suffrage.”90 Land rights – first guaranteed by federal land policy – ripened into
political rights, in Clark’s view and those of other supporters of alien suffrage.
But in order to proceed to grant political and property rights to noncitizens, delegates had to agree it was within their power to do so. State
convention delegates understood that Congress retained the power to draft
naturalization law, but some were uncertain of whether that power controlled or
restrained the states in their treatment of non-citizens.91 Mr. J.A. Barber of
Wisconsin argued, for example, that in choosing to grant additional rights to
foreigners “we are exercising a power of naturalization we do not possess, and
violating the Constitution of the United States.”92 During the Iowa debates, one
delegate argued that granting suffrage would be a violation of the federal
Constitution, “admitting persons to the privileges of citizenship who had never
renounced their allegiance to a foreign power.”93 Those arguing for state power
view constitution making as a progressive enterprise, requiring the constant readjustment of
past practices and institutional arrangments in light of changes in circumstance and political
thought”).
90
W.H. Clark, Oct. 26, 1846, in Milo Quaife, ed., The Convention of 1846 (Madison
Society, 1919), 277. Clark based his argument for a membership based on community ties
on Jefferson’s drafting of the Virginia constitution, which allowed suffrage to “All men who
have sufficient evidence of a common interest in, and attachment to, the community…”.
Quaife at 275-76.
91
W.H. Clark, in Quaife, 275 (“Sentiments have been strongly entertained by many
men…that to confer the elective franchise upon the foreigner before he becomes a citizen of
the United States is in conflict with the naturalization laws thereof….”). See statement of
J.A. Barber, Oct. 27, 1846, in Argus (reprinted in Quaife, 235-38).
92
Comments of J.A. Barber, Oct. 27, 1846, in Quaife, supra note _, at 254.
93
Fragments, at 45.
23
won out. Delegates pointed out that states had long regulated immigrants in
various ways. Naturalization, they knew, was a federal prerogative, but all
other regulation of migrants was considered largely a state concern.94 Granting
civic and political rights to foreigners was not a violation of federal government
power of naturalization, according to one delegate, but instead “the simple and
unquestionable exercise of a sovereign power which the states have never
surrendered and which almost every state has in one way or another continually
exercised: the sovereign power of denization.”95
[fix this – following is from Barber, page 236, not Ryan:] remarked that
aliens were akin to “denizens” in the territory of Wisconsin, defined via
Blackstone as “a person not a native or a naturalized citizen or subject, but
occupying a middle space.” He asserted that foreigners in Wisconsin territory
“can inherit, hold, and transmit real estate,” hallmarks of a denizen-like status.
Two other states, North Carolina and Pennsylvania, had granted full
property rights to non-citizens in their 1776 constitutions.96 Pennsylvania had
jettisoned this provision in 1838; North Carolina removed the provision in
1868.97 There were state statutes that permitted aliens to own property, either
in fee simple or with less onerous disabilities. [cite to Kent’s commentaries
here for state statutes]. At least one delegate mentioned these provisions in
passing, when arguing for the power of states to grant voting rights to noncitizens. Wisconsin delegate George Ryan argued that, based both on prior
statutes and constitutional provisions, granting alien suffrage was “no new
thing, no unsanctioned thing, no usual thing, no unauthorized thing. It is the
simple exercise, in one form, of a power which almost all the states appear to
exercise in some form.”98
Some delegates referred to legislation as the more appropriate place to
deal with the issue of land rights, claiming that the constitution was not the
place, but this was a minority view. 99 As one delegate argued back,
“[c]ircumstances might occur which would render a modification of these rights
necessary, and the legislature could then restrict them.”100 Placing such rights
in the constitution prohibited the legislature and courts from taking them back
at a later date.
94
Not until the 1870s did Congress begin to assert its plenary power over immigration.
Even after this, states retained rights to set rules regarding the rights of aliens in their midst,
as long as this did not infringe on federal enforcement of ever-expanding immigration
regulation. See Rodriguez; Neuman; Parker.
95
Comments of Mr. Ryan, Oct. 27, 1846, in Quaife, supra note _, at 254.
96
Sec. X of the Pennsylvania Constitution; sec. x of the N.C. Const.
97
Cite these.
98
Quaife, supra note _, at 261 (Argus, Oct. 27, 1846).
99
See, e.g., Journal of the Wis Conv. 1847, at 94 (Lovell) and 95 (Chase; noting that these
were “mere legislative details, having no appropriate place in the constitution”);
100
Journal of the Wis Convention in 1847, supra note _, at 126 (Kilbourn).
24
Some argued that not only could they extend property rights to noncitizens but that they had to because of federal precedent in the territories or, in
the case of California, because of the treaty guarantees. As the next section
explains, these arguments took the form of both retrospective and prospective
points of view.
C. Protecting Property
Agreeing that states had the power to expand property rights was
merely the first step. After all, there are plenty of things a state can do to
regulate persons and property that did not wind up in the state constitution.
Delegates must have felt compelled to push for the inclusion of such provisions,
from a sense of necessity or ideology, or both. The pressure on delegates to
include property protections was made possible, in a very direct way, by the
federal policies in place prior to their drafting. Federal ordinances and treaties
had created a propertied class of foreign birth in the west. By rejecting
strictures on voting and property-holding from the outset, these laws had
allowed for the growth of an enfranchised immigrant population. The territorial
governments continued this trend prior to, and at the point of, statehood. The
territorial legislatures granted voting rights to declared non-citizens prior to the
creation of the state constitutions. 101 This meant that immigrant voters
participated not only in the statehood vote but also in the popular ratification
vote for the constitution itself.
The presence of land-owning, enfranchised non-citizens within these
territories had a strong effect on the debates in those states that adopted
provisions. Immigrant communities had representation at the conventions, and
delegates were aware and tried to be responsive to their immigrant constituents.
This turned the conversation into one about protecting vested interests in
property, not just advertising to prospective migrants.
The presence of delegates of foreign birth had both general and specific
influence on the debates and the ultimate outcome. The Iowa provision, which
was the first alien property rights provision to be successfully introduced in a
nineteenth century constitution, was the outcome of a motion by a German-born
merchant named Henry M. Salmon. Salmon had arrived via steamboat up the
Missouri River in Fort Madison, Iowa, with his wife on August 6, 1836, less
than ten years prior to the constitutional convention. 102 He opened the
territory’s first drug store, called the “Good Samaritan,” shortly thereafter.103 It
101
Report of the Joint Committee on State Government of the Territorial Legislature, Jan.
1846, XXVI Wis. Hist. Publ. 60. [cited in Brown, 654]. Get cites for other states here.
102
THE HISTORY
1879).
OF
LEE COUNTY, IOWA, at 392 (Chicago: Western Historical Company,
103
Salmon ran this business until he died in 1873; his son, J.F. Salmon, then took over the
business. Records indicate that Salmon was a well-respected person in the community. His
home was one of three used for township elections in 1842 and he served served as
25
was Salmon who introduced the provision granting property rights to noncitizens, on the seventh day of the convention. The delegates were discussing a
draft of the Bill of Rights; Salmon proposed adding a clause stating that
“Foreigners who are residents of this state, shall enjoy the same rights in
respect to the possession, enjoyment and descent of property, as native citizens
of the United States.”104 The proposition was “unanimously agreed to.”
There are many fascinating questions about this, the answers to which
are likely lost to history. Why did Salmon introduce the provision? Had he
himself experienced difficulties in acquiring and transferring property? Were
there others in Lee County who had encouraged him to proposed such a phrase?
Was he influenced by extant provisions? And why did the delegates vote in
favor of the clause? Such unanimity was not seen in the states to follow; in
Wisconsin and California there were at least some expressions of doubt or
concern, and the votes were not unanimous. While we cannot know for sure
the answers to these questions, we can make some general observations drawn
from the regional history and some other parts of the debates. Salmon may not
himself have suffered alien property disabilities, given the federal law in force
in the territory. He was likely aware of such restrictions, however, given the
history of land tenure in Germany. [describe here] Salmon was not the only
person of foreign birth in his county or at the convention. Michael O’Brien, a
miner from Ireland, introduced the provision supporting alien suffrage.
Salmon’s own community of Fort Madison, in Lee County, had numerous
German families. [add stats here]
Salmon’s amendment resonated beyond Iowa’s boundaries. The
committee to draft a Bill of Rights for the California Convention looked to two
other states’ constitutions for guidance: New York and Iowa.105 The property
provision, along with 12 others, was lifted directly from the Iowa constitution,
according to the chair of the Bill of Rights committee.106 California delegates
did try to make some changes; a suggestion to include the word “permanent”
before the word “resident” was rejected, but a change to add “bona fide” before
“resident” succeeded. Two delegates tried to eviscerate the provision; one
sought to replace the word resident with the word “citizen,” which would have
undermined the entire premise; another proposed to strike the provision all
chairman of the county board of supervisors in the 1860s. He was a charter member and
officer of the Concordia Lodge in 1861. Id. at 547, 564, 597, 611. One contemporary
reminisced that Salmon “had a monopoly of selling whisky for the thirsty and the traveling
men”; this reputation likely contributed to his general popularity. Letters of Hawkins Taylor,
in the Annals of Iowa, in The History of Lee County, at 666.
104
Fragments of the Debates, supra note _, at 41 (Oct. 14, 1844). Salmon himself was not
on the committee to draft the bill of rights, but instead on the State Boundaries committee.
Id. at 9.
105
Report of the Debates, supra note _, at 31.
106
Id. (noting that “the first eight sections [of the draft Bill of Rights]...were from the
Constitution of New York; all the others were from the Constitution of Iowa”).
26
together. This suggestion was overruled in a vote of 25 to 11.107 California
thereafter adopted almost verbatim the Iowa clause, with the one change of
applying to “bona fide” residents of the state.
The limited discussion in the California debates also leaves unanswered
questions. There is no clear contribution here from a delegate of foreign birth,
as in Iowa, but we do know that a fair portion of the overall delegation in
California was either of foreign birth or had been born in Alta California while
it was still a part of Mexico. Of the 48 delegates, seven were native Californios
and five had been born in Europe.108 The remainder hailed from states in the
east. The committee that first introduced the draft Bill of Rights was comprised
of 20 delegates, five of whom were native californios.109 California, unlike
Iowa, had a legal heritage rooted in Spanish and Mexican law. For California,
protection of non-citizen property was a treaty requirement. [insert treaty
provisions here] Delegates of Mexican descent, along with others, reminded
the convention of these requirements with regard to suffrage; it is not
unrealistic to think that they did so as to property rights as well.
Wisconsin’s two conventions were both comprised of fair numbers of
foreign-born delegates. In both 1846 and 1848, some delegates attempted to
add express provisions limiting property rights to citizens only. In each case,
these failed after debate. In 1848, the successful provision – and the first to
depart in wording from Iowa’s precedent – was introduced by Morritz
Schoeffler, a delegate from Milwaukee County.110 He was not only of German
birth but also still a citizen of Germany. He had arrived in the U.S. in 1842 and
had not become a naturalized U.S. citizen by the time of his service in the
constitutional convention. A prominent member of the community in
Milwaukee, Schoeffler published the first German-language paper in the state
and served as school commissioner and register of deeds.111 As an immigrant
and a delegate from a heavily-immigrant county, Schoeffler was concerned to
protect the rights of non-citizens. In addition to promoting property rights he
also argued forcefully for the continuation of alien suffrage.
Michigan’s constitution of 1850, like that of California, provides little
direct discussion in debate. The convention to revise the 1835 constitution
consisted of 100 delegates, eight of whom had been born outside the United
107
Id. at 43.
108
See blogpost at Political Graveyard; check for sources. European delegates had
emigrated from five different countries: Spain, Scotland, Switzerland, Ireland and France.
109
Report of the Debates, supra note _, at 29-30.
110
Journal of the Wis Conv. 1847, supra note_, at 127 (Schoeffler’s provision, later adopted,
stated that “No distinction shall ever be made by law between resident aliens and citizens, in
reference to the possession, enjoyment, or descent of property”).
111
“Morritz Schoeffler, 1813-1875,” in DICTIONARY OF WISCONSIN HISTORY, available at
http://www.wisconsinhistory.org/dictionary/
index.asp?action=view&term_id=2597&
term_type_id=1&term_type_text=people&letter=S (last accessed Oct. 19, 2012).
27
States: one each from England, Ireland and Scotland and five from Canada.112
A vast majority had been born in New York or one of the states of New
England. We have no direct evidence that these foreign-born delegates had a
direct impact on the adoption of the constitutional provision; there was no
specific vote on this clause in particular. It is interesting to note, however, that
all eight of the foreign-born hailed from countries with a British legal tradition.
Three of these were lawyers. We can surmise, based on other sources, that
these British-born migrants were aware of English land policies and the
American alternatives.
The property provisions were in part the product of an impulse to
protect vested interests in property. Attracting new immigrants was a key
factor, but the impulse was not only prospective but also retrospective. As a
Wisconsin delegate remarked, to refrain from offering such protection in the
constitution would be an “extreme injustice,” since “the organic act and the
present laws of Wisconsin had held out the inducement to foreigners to possess,
enjoy, and transmit real estate.” Failing to include property rights here would
not just effect future migrants but would also, as another noted, work an
injustice on current non-citizen residents. Delegates used territorial law to
argue on not just moral but also legal grounds – a proposed limitation on such
rights, as several delegates noted, was not “in accordance with the laws of the
United States;” another noted that it would be “opposed to the ordinance and
laws of congress.” They argued that ensuring alien property rights was a
necessary and just continuation of extant practices, required either under federal
land law or, in the case of California, the treaty signed with Mexico.
The presence of an active and enfranchised alien population was one of
the most important preconditions for the passage of such a provision. Salmon,
Schoeffler and others ensured that their own property rights would be protected.
In so doing, they also set the stage for the active recruitment of immigrants in
the future.
D. Redefining Membership
The pragmatic, instrumental goal of assuring land rights for noncitizens was clearly front and center for many delegates: ensure these rights and
migrants will be more likely to come to this state. Convention debates evidence
an appreciation for the role of migration in both the past and the future of the
polity. As one Wisconsin delegate phrased it dramatically: “Wisconsin owes
all to emigration – foreign emigration – even to her very existence today as a
civilized state. And shall we resist our destiny, or foster it?”113
Western governments competed actively for European migrants
immediately after achieving statehood. They created state commissions to
recruit immigrants. Commissioners opened offices in New York and traveled
112
Report of the Proceeding and Debates in the Convention to Revise the Constitution of the
State of Michigan, 1850, at v-vi.
113
X Ryan, in Argus, Oct. 17, 1846, in Quaife, Convention of 1846, at 264.
28
throughout Europe advertising their states. Wisconsin was the first to create a
state-run “commission of emigration,” but it was followed shortly thereafter by
many others: Michigan, Iowa, and Arkansas among them.114 States published
manuals for migrants in multiple languages, touting the advantages of their
particular climate, resources, and land laws. Migrants themselves published
manuals of advice to other emigrants, giving advice and weighing the strengths
and weaknesses of the various western states.115 The constitutional provisions
were one additional measure to attract settlers, something that would signal to
migrants the desirability and the openness of the state.
Some commentators at the time interpreted these provisions as merely
instrumental measures. The Chicago Tribune, in an article critical of Iowa’s
constitutional provision, opined in 1886 that “the laws granting special
privileges to aliens were adopted in the Western states…when the population
was sparse, land plenty, and everybody anxious to adopt any measure that
would ‘bring money into the country.’”116 To reduce the constitutional property
provisions to utilitarian interest alone is to miss the greater dimensions of the
issue. Delegates did agree, for the most part, on the need to draw migrants to
the state, but they were not always in agreement on the means. A vocal
minority in Wisconsin preferred to keep property rights restricted to those who
had declared an intent to naturalize. The delegate who drafted this provision
was himself an immigrant. James De Noon Reymert migrated to the U.S. from
Norway in 1842. He arrived in Wisconsin in 1844, just three years before the
second constitutional convention to which he was elected delegate. Reymert
published the first Norwegian newspaper in the country; he was also an active
proponent of emigration from Europe.117 His drafting of a provision limiting
rights to those who had declared their naturalization was not coming from a
nativist impulse but instead, according to the debates, from a protectionist
concern. A fellow member of Reymert’s committee described the rationale this
way: that “their countrymen have every inducement held out to them to come
here – but none whatever to become citizens.” Their proposal was designed, he
noted, “especially for their own benefit – to make them renounce their
allegiance to the country from which they came, and to take the oath of
allegiance to our own government. It a word, to Americanize them, and make
them citizens.”118 Requiring a declaration of intent first was “an act of charity,”
114
Theodore C. Blegen, The Competition of the Northwestern States for Immigrants, 3. WIS.
MAGAZINE OF HISTORY 3 (1919); Encouraging Emigration to Arkansas; [cites]
115
See, e.g., DE HAAS, HINTS FOR IMMIGRANTS; FREEMAN, THE EMIGRANT’S HANDBOOK
AND GUIDE TO THE STATE OF WISCONSIN (1848); MARK WYMAN, IMMIGRANTS IN THE
VALLEY: IRISH, GERMANS AND AMERICANS IN THE UPPER MISSISSIPPI COUNTRY, 1830-1860,
71 (“By 1840 several thousand Irish and Germans had gone to America. Many of them
wrote travel books for the home market, and all formed a new base or haven for the next
traveler”).
116
Alien Landlordism in Iowa, Chicago Daily Tribune, Feb. 13, 1886, p. 4.
117
“James De Noon Reymert,” Dictionary of Wisconsin History; see additional articles.
118
Journal of the Wis Conv of 1847, supra note _, at 93 (comments of Mr. Sanders).
29
argued another delegate, one that would rightly “compel foreigners to become
citizens.”119
The proposal to limit rights to those who had declared their intent
struck off a more nuanced conversation about how best to attract migrants: was
it better to reserve full property rights to declaring immigrants, and thereby
encourage all immigrants to naturalize as soon as possible, or was it preferable
to give land rights to all immigrants regardless of their intent to naturalize?
This was a reprise of the debates in Congress over the 1790 Naturalization Act.
Some favored restricting land rights in order to encourage naturalization, others
favored expanding land rights in order to encourage settlement. Both assumed
the desired outcome was the eventual full incorporation of these migrants into
the American polity. Those opposed to Reymert’s provision stressed the legal
havoc it might wreak, on current landholders as well as prospective ones. One
appealed directly to Reymert’s own constituents: “Was [Reymert] willing,” Mr.
Gale asked, “that if a Norwegian should come with a numerous family and
invest his all in a quarter section of land, and should then die, that that land
should revert to the state of Wisconsin, and his children thrown upon the world,
without a dollar to assist them in procuring the comforts of life?”120
In the end, delegates in these states opted for a more expansive view of
membership. Immigrants did not have to be full, naturalized citizens in order to
contribute economically and to participate politically. The states prioritized
property rights outside of citizenship as a means of attracting, and retaining,
settlers.
E. Modernizing Property Law
The need to attract settlers was foremost in many delegates’ minds.
Yet they did not argue for land rights merely on this basis. Delegates also made
strong arguments based on political ideology and legal theory. Sometimes the
arguments were uttered together in one breath: delegate Beall remarked in the
1847 Wisconsin debates that a proposed section limiting property rights to
naturalized citizens “would be depriving foreigners of the most essential
privilege that freemen could enjoy, and,” he hastened to add, would “operate as
a severe check upon immigration.”121
This move was accompanied by an assertion of a specifically
“American” vision of property law, one that was rooted in equality rather than
“monarchy, aristocracy, or monopoly.”122 In order to argue that property rights
should be extended to non-citizens, delegates depended on an ideology of
property rooted in Jacksonian democracy, Republican virtue, and the politics of
119
Journal of the Wis Conv of 1847, supra note _, at 95 (comments of Mr. Doran).
120
Journal of the Wis Conv of 1847, supra note _, at 94 (comments of Mr. Gale).
121
Journal of the Wisconsin Convention of 1847, supra note _, at 92.
122
Fragments of the Debates (Mr. Matson), at 331.
30
free soil. Delegates who were in favor of non-citizen property rights focused
on the ways that these provisions would be in line with, as one called it, “the
liberal and enlightened policy of the age.”123 A Wisconsin delegate and Irish
immigrant, Daniel Harkin, asked and answered his own rhetorical question:
“Ques. What constitutes the keystone in the arch of our liberty? Ans. The right
of soil vested in the occupant.”124 What made the U.S. different than Europe,
Harkin argued, was both its republican political system and its distinctive
property law: “here…we have no kings, no counts, no ecclesiastical dominion;
the poor man is not humbled by paying feudal service to a lord, nor harassed by
tithes or game laws. No, sir, they are the owners of the soil they till….”125
Harkin was one of many who made this connection between liberty,
property, and progress. [more citations here]
Delegates envisioned themselves getting rid of feudal relics, the alien
land laws being just one of several. A textual analysis of these constitutions
reveals a common anti-feudal theme. Wisconsin’s Constitution of 1848
included a section, immediately preceding the alien property clause, stating that
“all lands within the state are declared to be allodial, and feudal tenures are
prohibited.”126 It was followed by a provision outlawing imprisonment for debt.
Michigan’s Constitution of 1850 included a provision, also immediately
preceding the alien land clause, outlawing long-term in-kind agricultural leases,
which were perceived as creating a feudal obligation.127
In public opinion and legal treatises alike, these changes often took the
form of continued critiques of England and the “old world,” and a staking of a
claim on uniquely “American” ideas of property and liberty. A Chicago paper
in 1868 criticized the lack of alien rights in England and drew parallels between
the treatment of aliens and citizens there. “It is true that England treats the
majority of her own subjects, through her laws of primogeniture and entail,
almost as harshly as aliens,” the article asserts. English property laws were “a
123
Journal of Wis Conv. 1847, supra note _, at 93.
124
Remarks of Daniel Harkin on Oct. 26, 1846, reprinted in Argus, Nov. 3, 1846, in Quaife,
supra note _, at 250. Harkin was born in Ireland in 1799 and was one of the early settlers of
Kenosha County. Quaife, supra note _, at 775.
125
Remarks of Daniel Harkin on Oct. 26, 1846, reprinted in Argus, Nov. 3, 1846, in Quaife,
supra note _, at 249.
126
Wis. Const. 1848, Art. 1 s. 14. Most antebellum conventions were a mix of lawyers and
farmers. AT times the legal terminology was an aggravation to those not as schooled in the
law; as one reporter remarked during the Wisconsin debates of 1846: “after the
explanation…that the word ‘allodial’ meant ‘my own’ and that if a man possessing an estate
died without heirs, his estate did ‘escheat’ to the state – after that explanation – I came to the
conclusion that my land is my own unless I get cheated out of it, and if I died without heirs
it will go to the attorney general.” Express, Nov. 24, 1846, in Quaife, supra note_, at 518.
127
Mich Const. 1850, Art. 18 s. 12 (“No lease or grant hereafter of agricultural land for a
longer period than twelve years, reserving any rent or service of any kind, shall be valid”).
See also Wis. Const. 1848 Art. 1 s. 14 (also prohibiting long-term in-kind agricultural
leases).
31
disgrace in a country claiming to be civilized” and would “drive[] England to a
new revolution.”128
The western states were not alone in their embrace of free soil attitudes.
[Will work in literature on free soil and anti-rent movements here.]
Delegates were ultimately speaking to two audiences: to the courts
within their fledgling state, which would now understand the common law to
have been reformed, and to immigrants themselves, whose countries of origin
had an even stronger tradition of restricted property rights, and who therefore
brought with them a legal consciousness of this disability. Property, in this
view, had the power both to attract and to educate immigrants. Delegates
placed faith in the power of property to Americanize oppressed peoples from
the “Old World.” Property ownership itself would be a key first lesson. This
was an argument noted in federal debates over the 1852 Homestead Act
debates: “As soon as he finds himself in possession of a home of his own, and
occupying a position that makes him a free man – free from the control,
direction, and oppression of a superior, he will and must feel proud of
American citizenship. He becomes identified with us in hopes, in interest, in
feeling.”129
In these states, residents were catching the wave of property reform
instigated during the Revolution: no longer would feudal relics remain to bind
the rights of property holders. This attitude fits squarely within the philosophy
of Jacksonian democracy, privileging the expansive rights of white men, and
sometimes women, regardless of their place of birth. As historian David Alen
Johnson writes, “[c]entral to antebellum America’s rhetoric of popular
democracy was a correlation between liberty and individual freedom in a
market economy.”130 The vision that emerges from the debates on non-citizen
property laws is one of both the liberative power of property – to free white
men from tyranny and oppression – and of its essential role in economic
development. Here were both proprietary and commodity views of property, to
use Gregory Alexander’s terms.131 Granting non-citizens property rights would
form a better, more democratic society, while also jettisoning strictures that
would prevent the easy market alienability of property.
Yet this was a limited liberative vision. The debates make clear that
the interest of these fledgling states in attracting immigrants was not
generalized but instead quite specific. It was not about attracting any and all
settlers but instead a particular kind of settler, namely the white European.
128
“Rights of Aliens in England,” Chicago Tribune, Jan. 29, 1868, p. 2. Ironically, it was
England, not the U.S., that abandoned all strictures on alien property rights, just two years
after this article was published, in the Naturalization Act of 1870. See discussion at infra __.
129
Rep. Cyrus L. Dunham, of Indiana, Cong. Globe. 32nd cong., first session (excerpted in
Abbbott, 780).
130
Johnson, supra note _, at 121.
131
GREGORY S. ALEXANDER, COMMODITY AND PROPRIETY: COMPETING VISIONS OF
PROPERTY IN AMERICAN LEGAL THOUGHT, 1776-1970, at 1-2 (defining the “commodity”
and “propriety” views of property).
32
Expanding membership was acceptable for certain types of migrants, but not
for others. The expansion of property rights to European migrants was
informed by – and, in some cases, predicated on – a simultaneous exclusion of
non-white residents and migrants from civil rights.
PART III: PROPERTY RIGHTS AND THE POLITICS OF EXCLUSION The effort to include alien property rights in antebellum constitutions
was both a rejection of feudalism and an embrace of a different stance towards
property, one that saw the widespread ownership of one’s own land, free of
state interference or dependence, as essential to the democratic project. Yet it
remained a limited vision: one that did not extend to those who were other
potential landowners in these fledgling states, namely freed slaves and Native
Americans. The limitations of these reforms become clear when we look to
concurrent debates over black migration, universal suffrage, and the influence
of foreign corporations. The extension of property rights was dependent upon
certain assumptions about the origin, race, and location of the property owners
themselves. These assumptions help to explain the persistence of alien land
restrictions in the twentieth century.
Looking to concurrent debates is also useful in understanding the
relationship between property, citizenship, and race. The separation of rights
from citizenship could cut both ways: it enabled foreigners to have rights
without formal citizenship while, at the same time, enabling the withholding of
rights to citizens of color.
In other words, disaggregating rights from
citizenship could be both an inclusive and an exclusive move, in this case
benefitting foreigners while at the same time harming citizens of color.132
A. Black Migration
The urge to attract European migrants had an undercurrent: the fear of
some delegates that policies would attract free blacks. Delegates in Iowa,
California and Michigan considered provisions that would have outlawed
migration of free blacks to the state. In this, they were in good company:
territories throughout the west passed, or considered passing, restrictive “black
laws” during the antebellum era.133 During the California convention, delegates
introduced and debated a provision that would have “prohibit[ed] free persons
of color from immigrating to and settling in this state.”134 The proposal failed,
132
African Americans were, in Mae Ngai’s terminology, “alien citizens,” treated as outsiders despite their formal right of territorial membership. See Ngai, Birthright Citizenship and the Alien Citizen. 133
See generally EUGENE H. BERWANGER, THE FRONTIER AGAINST SLAVERY: WESTERN
ANTI-NEGRO PREJUDICE AND THE SLAVERY EXTENSION CONTROVERSY (1967).
134
California Debates, at 46.
33
but not because of lack of popular support; rather, delegates feared that
Congress would not grant statehood if such a provision were in the state
constitution.135 California delegates did succeed in limiting suffrage to “white
males,” with the express intent to prevent persons of color – blacks and Indians
– from voting.
During the Iowa convention of 1844, a provision that would have
obligated the state legislature “to pass laws to exclude from the state blacks and
mulattoes” failed by only three votes.136 Proponents of the measure argued that
they would be “overrun” by the “broken-down negroes of Missouri,” a
neighboring slave state. Representative Baily remarked that his constituents
“did not want negroes swarming among them.”137 The provision failed, as it
did in California, because of fears that Congress would not approve a
constitution containing such a clause. Those voting against it could take heart,
said one delegate, that the legislature “would undoubtedly take measures to that
effect” after Iowa became a state.138 The territorial legislature of Iowa had
already done so in 1838, when it passed a law that required free blacks to post
bond upon their entrance to the state and to possess a “certificate of
freedom.” 139 The new state legislature would do so in 1851, after the
constitution’s adoption.140 Delegates kept such language out of the constitution
out of concerns for attaining statehood, but knew that their own state – as well
as many others in the west – had already prohibited movement via statutory
law.141
Delegates viewed the extension of civil rights to free blacks as a
dangerous inducement to migration. In Michigan, for example, Representative
Britain argued that extending civic privileges like suffrage would cause
Michigan to be “overwhelmed with colored persons from the south,” and that
delegates should take up a policy generally to “discourage the settlement of
colored people in our State.”142 Delegate Leach, who was in favor of black
135
337-38; Johnson, supra note _, at 129
136
Fragments of the Debates, 156 (the provision was struck out of the document by a vote
of 35 to 32). The state legislature did, in fact, take such measures, passing restrictive black
laws
137
Fragments of the Debates, 155.
138
Fragments of the Debates, 156.
139
Berwanger, supra note _, at 32.
140
Laws of Iowa, 1850-51, ch. 72 (1851), cited in Berwanger, at 43.
141
Ohio, Indiana and Illinois all considered prohibitions on the migration of free blacks in
their constitutional conventions earlier in the century. All three eventually adopted statutory
restrictions on movement in the 1830s. Restrictions throughout the region in this era
extended both to movement – requiring free blacks to have certificates of freedom and post
bond upon entrance to the state – as well as to civil rights -- excluding blacks from the
franchise, militia service, and court rooms. BERWANGER, supra note _, at 30-51. On Ohio,
see Paul Finkelman, [cite].
142
Michigan Debates, 1850, at 294-95.
34
suffrage, parodied the concern for migration: “Thousands there are who raise
their hands in holy horror at the thought that it will fill our state with negroes.
‘We shall be flooded with them,’ says the objector. ‘They will come upon us in
swarms, like locusts of Egypt, until the land will be darkened’.” (Leach
proceeded to provide population statistics for those states with race-neutral
suffrage, demonstrating no such “flood” had ever occurred.)143
No constitutional provisions were introduced in these four states that
explicitly or directly limited black citizen landholding However, one provision
recommended by a delegate in the Wisconsin Convention of 1846 may have
been calculated to achieve this end, since it would have limited land rights to
those who were eligible to become citizens. The naturalization law at that time
allowed only “free white persons” to naturalize, and there were ongoing debates
about whether freed slaves were, in fact, legal citizens (a debate that would be
temporarily settled eleven years later in the Supreme Court’s decision in Dred
Scott v. Sanford).144 Such a provision, if it had been adopted, would have
limited land ownership by race.145
The extension of land rights to non-citizens was portrayed by some as
an important bulwark against encroachment of “uncivilized” persons in the
state. The specter of “amalgamation” appeared repeatedly, as those opposed to
black migration into the state painted a picture of interracial marriage and social
intermingling. Foreigners, on the other hand, did not disturb the delegates in
this way; as one argued, “the foreigners will eventually be with us one people,
and we should grant them the privileges asked.” 146 The Michigan
Representative Britain’s support for civic rights for foreigners and disdain for
similar rights for blacks was premised on the same conclusion: “Encourage
them, and they will come amongst us.” 147 Encouraging foreign migration
would not only boost the state’s settled population but also leave less room for
unwanted black migrants. In this sense, property reforms were, in legal scholar
Kunal Parker’s words, “making blacks foreigners” while making foreigners
American.148
143
Michigan Debates, 1850, at 288-89.
144
See, e.g., California Debates , at 331 (comments of Mr. McCarver) (“It has been
contended by my friend here (Mr. Norton), that negroes are citizens; that a resident is a
citizen, and consequently entitled to all the rights and privileges here enjoyed by citizens of
the States generally. Now, we all know how this matter stands there; we are well aware that
negroes are not regarded as citizens”).
145
It was, as it turns out, a foreshadowing of the anti-Asian land laws, which prohibited
those “ineligible for naturalization” – at that time, a category that included all those of Asian
nationality – from leasing or owning property.
146
Michigan Debates (Mr. Beardsley), 492.
147
Michigan Debates, 256.
148
Parker, supra note _, at 81.
35
B. Property and Suffrage
Granting property rights for foreigners in state constitutions signaled
widespread acceptance of the disassociation of civil rights from formal
citizenship. In debates, delegates repeatedly forwarded a vision of gradations
of membership, which would allow the extension of rights to those who were
not natural-born or naturalized citizens. This perspective on citizenship – that it
was disaggregated from rights – was an inclusive maneuver for the foreignborn: it admitted them to, as some argued, a “denizen” status in the republic. It
was a theme that would be repeated in different form decades later, when the
Supreme Court ruled that non-citizens come under the protection of the
Fourteenth Amendment.149
One of the arguments that they had to overcome in constitutionalizing
non-citizen property rights was the connection between land and the franchise.
Owning property, paying taxes, and voting had been tied in the republican
imagination since the revolutionary era. Delegates in Wisconsin had to be
convinced that separating land ownership and taxation from voting – i.e., from
an acknowledged right of a citizen – was acceptable. Some argued for the
delay of taxation until suffrage was granted; Representative Leach argued
during the 1850 Michigan debates that “as long as you deny the right of voting
to a whole class [of foreigners], you should exempt their property.”150 Most
disagreed with Leach, arguing that it was possible to disassociate propertyholding and voting. This was seen as being in accord with retreats from
property qualifications for the vote generally.151
Proponents of alien suffrage argued that voting itself was separate from
citizenship. As Representative Ryan insisted in the Wisconsin debates of 1846,
“suffrage is not citizenship, nor citizenship suffrage.”152 Some commentators
saw a unifying principle in extending the right to vote to all “inhabitants,”
whether foreign-born or African American. Others saw instead the ability to
grant discriminately – to only those who merited the right to vote. “In regard to
negro suffrage, I am in favor of withholding the elective franchise from the
colored man for the same reason I would confer it upon the foreign population,”
stated W.H. Clark in the Wisconsin debates.153 To Clark, the franchise should
be given only to those who are capable of feeling a strong and lasting
“attachment” to the country. Those of the “African race” had failed to do so, he
149
Yick v. Wo; see also Wong Wing.
150
Michigan Debates, 851.
151
Delegates expressed disdain for property qualifications. See, e.g., Comments of Rep.
Burchard, in Wis. Debates of 1846, at 245 (“a property qualification is an old and exploded
doctrine”).
152
Wis. Debates of 1846, at 259. This argument would appear in cases dealing with woman
suffrage. See, e.g., Minor v. Happersett (holding that the Fourteenth Amendment does not
guarantee the right of suffrage as one of the “privileges and immunities” of a citizen).
153
Quaife, supra note _, at 278.
36
argued, whereas migrants – even relatively recent ones – had demonstrated
appropriate attachment. 154 Wisconsin supported such a bifurcation in the
Constitution of 1846, which restricted voting rights to “white citizens” or
“white persons, not citizens of the United States,” who had declared their intent
to apply for naturalization and had taken an oath of allegiance.155 Notably, the
Wisconsin Constitution of 1847, which was ratified by the people, removed the
racial restriction, providing suffrage for all male citizens, as well as foreigners
who had declared an intent to naturalize. Debates reveal that the abolitionist
vote may have had a large role to play; some blamed the failure of the
ratification of the 1846 Constitution on abolitionists who refused to vote for a
document that did not provide race-neutral suffrage.156
The arguments about suffrage were tied up with arguments about
property. Assumptions about property ownership were themselves racialized.
In California, for example, delegates argued against suffrage for free blacks or
Indians on the basis of their inability to support themselves. Free blacks,
according to the convention’s president, were a threat because they “have never
been freemen; [they] have never been accustomed to provide for
themselves.”157 A similar line of reasoning was put forward regarding Indian
suffrage. As historian David Alan Johnson summarizes, in the view of some
California delegates “‘Wild’ Indians and Africans were, by reason of race,
dependent beings and, as such, open to manipulation by designing (white) men
who by controlling their livelihood controlled their votes.”158 Using this racial
logic, those who were territorial outsiders – who still owed allegiance to a
different country or sovereign – could have a greater claim to rights of suffrage
than those who had been born and raised on American soil. Not for these
residents or potential migrants was there to be “Americanization” through
property ownership, as delegates envisioned for the European serf.159
154
[cite to metaphors here, 280] 155
Wis. Const. 1846, art. 8, sec. 1. This section also extended the franchise to “all civilized
persons of the Indian blood, not members of any tribe of Indians.” Wisconsin delegates
refused to decide the question of negro suffrage in the convention, instead sponsoring a
popular referendum on the issue. The extension of suffrage to blacks failed by a vote of 15,
415 to 7,664. Brown, Making of the Wisconsin Constitution, at 687.
156
Wis. Debates of 1847, 25-26; Brown, Making of the Wis. Constitution, 692-93.
157
Report of the Debates, at 138.
158
DAVID ALAN JOHNSON, FOUNDING THE FAR WEST: CALIFORNIA, OREGON, AND NEVADA,
1840-1890, 126 (1992).
159
Not all saw these as parallel moves. There were some who argued that equality, as a
guiding principle, would require both the extension of property rights outside of citizenship
and the extension of the suffrage to all male inhabitants, including non-white populations
and non-citizens. Wisconsin was the only state of the four to adopt universal suffrage, but
some delegates in other states were strong proponents. [data here]
37
C. Residence and Fear of Corporate Influence
The four first adopter states each extended property rights to noncitizens, but each had within it a key limitation: property rights were extended
to resident aliens only. Debates reveal a clear impetus for limiting rights to
resident aliens: fear of foreign influence, particularly foreign corporate
influence. By retaining the connection between residence and ownership rights,
these states kept the door open for a continuing contest over the rights of
foreign ownership, one that would play out in new ways in the twentieth
century. [This section is unfinished. I will be adding evidence from the debates
on the limitations to resident aliens and the fears of foreign corporations.]
PART IV: THE PERSISTENCE OF A DIFFERENCE
The antebellum provisions in Iowa, Wisconsin, California and
Michigan influenced other states after the Civil War. Seven states, between
1868 and 1890, added similar clauses in their constitutions. It looked like the
start of a long-term trend; the delegates in Iowa and the states that followed
likely thought that they were engaging in a long-overdue modernization of
property law, one of many to take place in the nineteenth century.
Yet instead of widespread adoption, we see a virtual end and, in some
cases a retrenchment even in those states that offered expanded rights. Only
one state – New Mexico – adopted a new constitutional provision guaranteeing
alien property rights in the twentieth century, and it revoked the clause a decade
later. Of the 13 that adopted in the eighteenth and nineteenth centuries, six later
dropped them or passed statutes that were in direct conflict. Four states –
Washington, South Carolina, Oklahoma, and Florida – created constitutional
provisions barring ownership by all foreigners, non-resident foreigners, or those
who were ineligible to naturalization.160 The variability here is striking, but the
overall landscape is one of continuing (if under-enforced) restriction, rather
than expansion of property rights.
Why do we not see the logical elimination of this feudal relic? Why
did alien land laws not go the way of primogeniture, coverture, the fee tail, and
other such doctrines? Why did such provisions persist rather than die out all
together? The answer lies, in part, in these constitutional provisions
themselves.161 They were adopted with certain assumptions in mind: that the
beneficiaries were of a certain origin (European), a certain race (white), and a
160
[con cites here]
161
General suspicion of foreigners certainly has also played a role; as Polly Price notes,
“‘fear’ of aliens” has “withstood differing social forces that affected other common-law
property doctrines.” Price, supra note _, at 205.
38
certain location (inside the territory). A restriction based on residence was
explicitly included in the provisions themselves; the racialized nature of the
rights granted is apparent when we look at the context of their passage. Each of
these assumptions about the identity of the property holder would be challenged
with new waves of migrants from other parts of the world and with
technological advances that enabled ownership of land from afar.
In the latter half of the nineteenth century and throughout the twentieth,
the alien land restrictions were lifted for some, but proved resilient when it
came to animosity towards others. Alien land laws served new social functions,
not envisioned in their origins in English feudalism. In the late nineteenth
century, alien land laws were deployed as a method of protecting small
domestic farmers against foreign corporate takeover.162 In Iowa, for example,
legislators proposed and passed an amendment that prohibited non-resident
aliens from holding property. The law was aimed to prevent the scourge of
“alien landlordism,” which, according to an article in the Chicago Tribune, “has
proved a drain on the country and retarded its progress,” a development they
called “a political danger as well as an economic evil.”163 Given the Iowa
constitution’s limitation of property rights to resident aliens, this statute would
seem to be an unnecessary redundancy. It was clearly a political move, a way
to broadcast anti-foreign and anti-corporate sentiment.
In the early twentieth century, alien land laws became yet another legal
mode of race discrimination, in various anti-Asian formulations. California’s
expansive language was directly contradicted by statutes passed in the early
twentieth century barring aliens “ineligible for naturalization” to own or lease
property. During the Cold War, alien land laws became a political tool, used to
punish those with connections to communist countries. States adopted “Iron
Curtain Statutes” that barred persons from these countries from inheriting
property in the U.S.164 Today, they have taken a new form in anti-illegal
immigrant ordinances that attempt to restrict the right of migrants to rent
apartments or stay in homes of others.165
The state constitutional conventions of the nineteenth century were, it
turns out, not the start of a uniform trend. In many ways they can only be
understood as a product of their particular time and circumstance. Yet their
importance does not lie in the nineteenth century alone. They help us
understand what came after in restricting these rights – in addition to being a
powerful endorsement of expanded rights, the debates are also a foreshadowing
of some of the types of restriction that were to come. These antebellum state
constitutional provisions may have come from a vision of liberative property
162
McGovney, supra note _, at _.
163
“Alien Landlordism in Iowa,” Chicago Daily Tribune, Feb. 13, 1886, p. 4. [check threeyear provision; included in final law?]
164
Iron-Curtain Statutes literature here.
165
See, e.g., Lozano v. City of Hazelton; Fremont case; Tirres, Property Outliers.
39
rights, but they had limitations that would later enable back-tracking and
recalcitrance.
CONCLUSION
Important work in immigration law and history has looked at the ways
that states have restricted migration prior to the federal government’s adoption
of immigration restriction in the 1880s.166 Far less attention has been paid to
the ways that states encouraged, aided, and abetted immigration during this
period, or to the important ways that states created expansive membership for
those desirable immigrants.167 This article has demonstrated that property law
was a key mechanism for regulating immigration, at both the federal and state
levels. A vital precondition of state constitutional reform was the establishment
of these rights of suffrage and property prior to the formation of the states
themselves, in the territorial law under which they were governed. The federal
Congress constrained itself when crafting the first Naturalization Law in 1790,
refusing to extend any rights to those who were not fully naturalized. Yet they
simultaneously established a precedent, and a distinct legal culture, in allowing
for such rights in the territories. Immigrants themselves were a critical part of
the process of property reform: they participated alongside citizens in creating
state constitutions. The end result of these efforts was an expansion of the
fundamental rights of certain non-citizens in these states. These rights, while
significant in overturning the common law prohibition on alien property
ownership, had within them elements of exclusion that would reappear in new
guises in the decades to follow.
166
See, e.g., Neuman, Parker;
167
See Abrams, Pfander, Zolberg; see also Tirres, “Who Belongs?”
40