will New Mexico allow asian immigrants to own land?

(SJR 10, 2005)
CONSTITUTIONAL AMENDMENT NO. 1
A JOINT RESOLUTION
PROPOSING TO REPEAL ARTICLE 2, SECTION 22 OF THE CONSTITUTION OF NEW
MEXICO, IN ORDER TO PROTECT THE RIGHT OF ALL PERSONS TO ACQUIRE AND
POSSESS REAL PROPERTY.
BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. It is proposed to amend Article 2 of the constitution of New Mexico by
repealing Section 22.
Section 2. The amendment proposed by this resolution shall be submitted to the people
for their approval or rejection at the next general election or at any special election prior to that
date that may be called for that purpose.
Section 22 of Article 2 of the constitution of New Mexico, which would be repealed by
the proposed amendment, reads as follows:
"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."
Brief Analysis
Constitutional Amendment No. 1 proposes to repeal Section 22 of Article 2, which
mandates that unless otherwise provided by law, aliens who are not eligible to become citizens,
and certain business entities that are majority-owned by such aliens, are prohibited from
acquiring any interest in real property in New Mexico.
Disclaimer
The following arguments do not necessarily reflect legislative deliberations undertaken at
the time of the passage of the proposed amendment. They represent suggestions of the
Legislative Council Service staff of arguments in support of and in opposition to the proposed
amendment. No claim is made for the validity or consistency of these arguments. Cogent and
valid arguments may have been omitted by oversight. No attempt has been made to have the
same number of arguments for or against a particular amendment, and the number of arguments
does not indicate the weight that should be ascribed to each.
-3-
Arguments For:
1. This section is a remnant of anti-Asian discrimination from the first decades of the twentieth
century. The phrase "alien ineligible to citizenship" meant 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 original 1910 Constitution of
New Mexico guaranteed that there would be no distinction between resident aliens and citizens
regarding the ownership of property, but this section was amended in 1921. Although other
states had similar restrictions at one time, many states have now done away with them. Removal
of this language is long overdue.
2. This section was rendered ineffective by passage of legislation in 1975 permitting aliens to
take title to property (Section 45-2-111 NMSA 1978). As a consequence, repeal of the section
will not change current law; it will merely serve to "clean up" the language within the state's
constitution.
3. This provision is a symbol of a time when people's opportunity and place in society was
defined by race. It creates a negative image of New Mexico. The constitution should reflect the
state as it is now and as it strives to be, not as it was 85 years ago.
4. Numerous federal appellate courts have held that state alien land laws violate the equal
protection clause of the Fourteenth Amendment to the United States Constitution because they
discriminate against individuals on the basis of race and alienage. A provision that may well
violate the United States Constitution has no place in the Constitution of New Mexico.
5. Although the prohibition in this section is currently superseded by legislation, if the law
allowing aliens to own property should be repealed by some future legislature, this section would
again take effect. It is wise to permanently remove this prohibition.
6. Many rights are available to noncitizens in New Mexico, such as the right to a free public
education, to the same extent made available to citizens. A policy of maximizing the possibility
for all New Mexicans to exercise a full range of rights fosters civic participation and pride.
Many noncitizens have lived on or worked land that they would not be permitted to buy if the
current constitutional provision were applicable; the state has no legitimate interest in
discriminating against purchase of land by such New Mexicans.
-4-
Arguments Against:
1. Rather than simply repealing this section completely, it would be better to reinstate the
original constitutional language that prohibited any distinction between resident aliens and
citizens in regard to the ownership or descent of property.
2. This is an unnecessary amendment. Because of the "unless otherwise provided by law"
language in this section, the legislature is free to overrule this provision with statutory language,
which it did in 1975. There is no point in repealing an ineffective prohibition.
3. There are many ineffective and irrelevant provisions in the state constitution. If it is
considered important to modernize the constitution and remove these provisions, the legislature
should authorize a constitutional revision commission or convene a constitutional convention so
these revisions can be done in a thorough and logical process. Attempting the type of patchwork
rewriting of the constitution exemplified by this amendment is inefficient and a waste of tax
dollars.
4. Only persons ineligible to become citizens are barred from owning property under this
section. In the unlikely event the legislature decides to repeal the existing statute permitting
aliens to own property, this section would affect only those who are actually ineligible for
citizenship.
5. Retaining this provision would allow future legislatures the flexibility to handle this issue as
circumstances demand. Due to current concerns about terrorism and the increasing flow of
immigrants illegally entering the United States through New Mexico's southern border, certain
aspects of land ownership may have to be restricted for national security purposes. It may be
prudent in the future to enact statutes to enforce the prohibition on ownership of property by
certain aliens who are seen as threats to the security of the state, and this provision makes it clear
that such legislation is allowed under the Constitution of New Mexico.