Volume 101

Jill M. Fraley

States are enacting a new wave of land laws restricting noncitizens’ ownership of real property, prompting immediate constitutional challenges grounded in equal protection and federal preemption. Most commentators assume these laws are unlikely to survive modern scrutiny. This Article argues that these land laws rest on a constitutional logic that remains both doctrinally intact and normatively compelling: the treatment of real property as an incident of state sovereignty ratherthan an ordinary site of economic regulation.

Against prevailing accounts, this Article shows that the Court’s jurisprudence has never subjected all citizenship-based classifications to heightened scrutiny. Instead, the Court has consistently distinguished between regulations affecting ordinary participation in civil society and those implicating core sovereign functions. Through a close reading of Yick Wo, Graham, Mathews, and their progeny, this Article disentangles equal protection from preemption and demonstrates that state control over land has long occupied a constitutionally distinct position and one closely tied to democratic accountability, territorial integrity, and national security.

By understanding noncitizen land laws as grounded in sovereignty rather than animus, this Article explains why rational basis review properly governs contemporary challenges and why courts are likely, and justified, to reaffirm Terrace. More broadly, it restores property’s central role in constitutional structure and democratic theory, challenging the assumption that equality norms alone exhaust the Constitution’s treatment of the intersection of citizenship and land.

Full article available here.