For Sale: Land And Property. Whites Only.

Repeal A Racist Section Of The State Constitution--Vote “Yes” For Constitutional Amendment No. 1

Eric Griego
5 min read
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For those of you laggards who have not yet filled out your absentee ballot or voted early, here is some important information on the upcoming election. Pay attention.

On Nov. 7, 2006, four proposed constitutional amendments will appear on the New Mexico general election ballot. Three of the four proposed amendments are no-brainers allowing the state to do things like more easily build schools, water projects and affordable housing. However, given the anti-immigrant sentiment in the country these days, the fourth may be in trouble.

Constitutional Amendment No. 1 would repeal a constitutional provision prohibiting ownership of land by persons not eligible for citizenship. Senate Joint Resolution 10, sponsored by Sen. Cisco McSorley and passed by the State Legislature in 2005, calls for the repeal of Section 22 of Article 2 of the constitution of New Mexico, which reads:

"Until otherwise provided by law no alien, ineligible to citizenship under the laws of the United States, or corporation, copartnership or association, a majority of the stock or interest in which is owned or held by such aliens, shall acquire title, leasehold or other interest in or to real estate in New Mexico."

According to the state’s Legislative Council Service, this section of the New Mexico Constitution is a remnant of anti-Asian discrimination from the early 1900s, about the time New Mexico became a state and the constitution was drafted. Since many New Mexicans at the time—including former Gov. Octaviano Larrazolo, the first Hispanic U.S. senator in history—were actually Mexican citizens, the law was clearly not intended to exclude non-native Hispanics from owning property in the new state.

Instead, the phrase "alien ineligible to citizenship" was referring to Asians who, not being "free white persons or persons of African nativity or descent,” could not become naturalized citizens pursuant to the federal immigration laws in place at that time.

The law refers to a 1790 U.S. immigration and naturalization law stating that only "white" persons should be eligible for naturalized citizenship. Although laws forbidding "aliens ineligible for citizenship" primarily targeted those of Japanese ancestry, the law also applies to Native Americans and to other nonwhites. 

An oft-cited 1923 case,
Bhagat Singh Thind v. the United States , established that although Mr. Singh was Caucasian, he was not "white" and therefore was not eligible to become a naturalized U.S. citizen, or to ever own land.

The original 1910 state constitution eliminated any distinction between resident aliens and citizens regarding the ownership of property. However, in response to anti-Asian immigrant sentiment at the time, Section 22 was amended in 1921 to deny nonwhite or African descendents from owning property. While it is encouraging that our state constitution protected the rights of whites, Hispanics and Blacks, it is shameful that we have allowed this racist section of the state constitution to stay on the books.

Some state legal experts say the language in Section 22 of the state constitution is much ado about nothing since the passage of state legislation in 1975, which allows aliens to take title to property. Besides, the section would not stand up to federal civil rights laws. Federal courts have ruled against state alien land laws because they violate the rights guaranteed under the U.S. Constitution. Under the equal protection clause of the Fourteenth Amendment, courts have ruled it is illegal to discriminate against individuals on the basis of race and alien status.

But that’s not the point. The point is we have allowed antiquated, bigoted language to remain in our state’s founding document. A simple cleanup of the language should be easy, right?

Tragically, this very logical cleanup of some out-of-date language may have come at the worst possible time. With anti-immigrant hysteria being fomented by several leading right-wing conservatives and other race-baiters, repealing this antiquated language may be an uphill battle.

The idea that noncitizens should have fewer rights than citizens is something many immigrant-bashers have fomented. Ironically, New Mexico has led the nation in pro-immigrant policies such as the right to a free public education, drivers’ licenses and other civil rights protections. Section 22 of the state constitution is an anomaly.

One would think that if voters were made aware of this arcane and useless state provision that they would vote to get rid of it, right? Wrong. In 2002, a Native American advocacy group helped place an initiative on the state ballot calling for the elimination of the law. The ballot measure failed.

Despite the fact that the law has never been enforced in New Mexico, it remains a disgraceful part of an anti-immigrant past that we should leave behind. Although laws forbidding nonwhites to own land were once common in many states, today New Mexico is the only state with such a law still on its books. It’s time we get rid of it.

Constitutions, whether state or federal, are supposed to embody the aspirations of a society. For the century of our history as a state, and for over two centuries in our national history, we have made more and more strides toward equality for all. U.S. Sen. Dennis Chavez, who succeeded Larrazolo to become the second Hispanic to serve in the U.S. Senate, was also the original author of what became the 1964 Civil Rights Act. New Mexico has a proud history of fighting for civil rights. Let’s not let this arcane provision hurt our progressive reputation. Section 22 must go.

The opinions expressed are solely those of the author. E-mail

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