Leo Yu (Southern Methodist University – Dedman School of Law) has posted Reviving Exclusion (Forthcoming at Texas A&M Law Review (2025)) on SSRN. Here is the abstract:
Over a century ago, fifteen states enacted alien land laws, designed to deprive Japanese immigrants of property rights. It took half a century for these laws to be repealed. Today, alien land laws are experiencing a strong revival in America. Nine states have enacted new versions targeting the Chinese community, with 19 states preparing to follow suit.
This article provides the first comprehensive analysis of this revival, tracing its legal roots to early 20th-century Supreme Court cases that upheld the constitutionality of the old alien land laws. These cases, referred to as “zombie cases,” remain on the books despite being irreconcilable with contemporary constitutional jurisprudence, particularly the Equal Protection Clause of the Fourteenth Amendment.
This paper explores the power dynamics behind their revival through the Critical Race Theory (CRT) lens, particularly the Interests Convergence Theory. The widespread repeal of alien land laws in the 1960s was primarily due to the convergence of interests between mainstream America and the Japanese community, driven by a Cold War need to build alliances in Asia against the Soviet Union. Today, such convergence no longer exists. The revival of alien land laws occurred in a new geopolitical context: the New Cold War between China and the United States. Unlike the Japanese community, the interests of the Chinese community do not align with those of mainstream America. Instead, the strong adversarial stance towards China has reshaped the Chinese community’s racial identity in America, leading to a nationwide effort to enact theatrical anti-China laws, often with a bipartisan consensus to ignore their constitutional defects and discriminatory impact on the Chinese community. Compared with many other minority groups, mainstream America has demonstrated a higher tolerance toward civil rights violations against the Chinese community, a phenomenon this paper refers to as the Chinese Exceptionalism.
In the New Cold War, everything revolves around China, which is particularly damaging for the Chinese. Thus, this paper proposes a modification to C.J. Kim’s Racial Triangulation Theory. The Chinese deserve their own spot on this triangulation: they are racialized as a community that is much more foreign than many other Asian communities due to their presumed connections with a geopolitical rivalry, and they are also considered culturally inferior due to the association with communism, which often operates as a negative racial identity that reinvents and justifies orientalism during a geopolitical crisis.