Abstract

Excerpted From: Leo Yu, Reviving Exclusion, 12 Texas A&M Law Review 1683 (Spring, 2025) (371 Footnotes) (Full Document)

Can history overrule Supreme Court precedents? Chief Justice John G. Roberts certainly believed so. “Korematsu was gravely wrong the day it was decided [and] has been overruled in the court of history,” he said, further declaring that Korematsu “has no place in law under the Constitution.”

Roberts's rebuke of Korematsu v. United States, a 1944 case in which the Supreme Court upheld the constitutionality of the internment of the entire West Coast Japanese community, did not trigger waves of applause and optimism. People have doubts. It seems convoluted that the Court would overrule a case so explicitly while adopting its core rationale--that national security concerns may suspend fundamental rights--and directly apply it to another immigrant group, Muslims. In her fierce dissenting opinion, Justice Sotomayor stated that the Court in Hawaii “redeploys the same dangerous logic underlying Korematsu and merely replaces one 'gravely wrong’ decision with another.” People are not persuaded that Korematsu's legacy is over. Roberts might have killed the body of Korematsu, but its soul seems to remain intact.

There are many Korematsu-like cases in the Supreme Court's history. They are repugnant to many contemporary constitutional principles, especially the Reconstruction Amendments. They are filled with overt racism, white supremacy, and unfiltered biases. We talk about them in the same way that we talk about old haunting stories; we presume that they are dead and have been nullified by “history,” as Roberts insisted.

But they are not just stories, and they are not dead either. The Supreme Court specifically instructed that all its cases must be presumed valid unless the Court itself expressly overruled them. Thus, history alone does not have the magic power to kill any of the repugnant cases, despite them being no longer reconcilable to the law today or being downright racist. These cases are half-dead: their apparent conflicts with the Reconstruction Amendments make them no longer possess the full force of good law, but they get to remain on the books with presumed validity. They are zombies.

Zombies do not just stay on the books; they revive from time to time, and they are not pleasant when revived. This Paper focuses on a particular line of zombies--the alien land laws--and analyzes how these laws have been revived and become the new reality of today's America.

Alien land laws were a series of laws prevalent in America a century ago. Created by California in 1913, alien land laws deprived “aliens ineligible to citizenship” of property rights, including the rights to own, lease, enjoy, inherit, etc. Rose Cuison Villazor, Gabriel J. Chin, and Keith Akoi developed rich literature about alien land law and its history and found that “aliens ineligible to citizenship” was only used as a euphemism to disguise the law's original intent, which was to racialize, dispossess, and subordinate Asian immigrants, particularly Japanese immigrants. White supremacy, racial bias, and xenophobia, together with white farmers' economic anxiety, all played vital roles in this legislation movement.

The Asian community fought hard against alien land laws. They challenged those laws in courts many times, and five cases reached the Supreme Court. In four of the five cases, the Supreme Court upheld the constitutionality of alien land laws, and the rulings were based on a simple concept: states' rights. The Supreme Court held that a state should have the right to decide who was qualified to purchase land in the state's jurisdiction. The only successful challenge came in 1948 in Oyama v. California, a narrow ruling that only addressed American citizens' right to inherit properties from their immigrant parents. Thus, did not fully overrule the four previous alien land law cases. Nevertheless, the four cases in the 1920s are no longer reconcilable with contemporary constitutional jurisprudence, the most apparent reason being that the Supreme Court ruled in 1971 that the Fourteenth Amendment's Equal Protection Clause applies to citizens and noncitizens alike. The Supreme Court, however, has never overruled any of the cases, and they have become zombies.

Those zombies are reviving, and they are coming back in full force. Twenty-eight states have been working on new versions of alien land laws in the past several years. Twelve states have successfully revived their new alien land laws. The terms of these laws look similar to the old versions, but the targeted group is no longer Japanese immigrants. Chinese immigrants have become the new targets. The zombies-- especially the four cases that the Supreme Court sided with the states--played a significant part in this revival trend. Legislators and courts cited the zombie cases as a legal justification, relying on their presumed validity.

This Paper attempts to discover the “black magic” that revived alien land laws from a Critical Race Theory (“CRT”) lens and argues that the root of the revival power is the divergence of interests between the Chinese community and mainstream America.

Under Derrick Bell's Interests Convergence Theory, the black community's success in Brown v. Board of Education was not due to a change of heart in mainstream America; instead, it was due to the reality that the black community's demand for racial equality converged with mainstream America's interest in building a “good guy” image internationally to combat the Soviet Union during the Cold War. Similarly, this theory provides a framework to explain Oyama, the vanishing of the old alien land laws in the 1950s and 1960s, and their revival today.

The Supreme Court's Oyama ruling in 1948 and states' efforts in abolishing alien land laws in the 1950s and 1960s occurred under a critical post-WWII period: the early stage of the Cold War. Legislatures and judiciaries frequently cited America's Cold War-related geopolitical need for allyship when considering abolishing the alien land laws. In other words, mainstream America's geopolitical needs converged with the Japanese community's demand, leading to the demise of alien land laws.

The reverse side of the Interests Convergence Theory--which can be described as the Interests Divergence Theory--provides an equally convincing framework to explain the current revival trend. When a racial minority's interest does not converge with mainstream America's needs, that community is often exposed to major civil rights violations, and the judiciary frequently lacks interest in providing meaningful remedies to that community.

The revival of the alien land laws started in a completely new political context compared to the 1960s. Today, we live in a New Cold War between China and the United States. Meanwhile, American policymakers firmly believe that punishing Chinese people in America equals punishing China. The Obama, Trump, and Biden administrations all engaged in multiple policies that racially profiled and criminalized the Chinese community in the name of deterring China. These policies further engraved China, America's most significant geopolitical rivalry, into the Chinese community's racial identity. The Chinese community's presumed linkage to China determines that its interest in property rights today diverges from mainstream America. Few politicians and policymakers, including liberals and progressives, have been outspoken against racism towards the Chinese as they were for many other racial minorities. Helping the Chinese might be perceived as soft on China, a label no one--including the Supreme Court--wants to be associated with. Racial injustice occurs in many places in America, but mainstream America seems to have developed a higher tolerance towards racial injustice towards the Chinese community. This Paper refers to this phenomenon as the Chinese Exceptionalism.

The Chinese community's presumed linkage to China--a major geopolitical rivalry--is the most apparent reason for Chinese Exceptionalism. However, this Paper argues that there is a deeper reason behind Chinese Exceptionalism. China is not just a geopolitical rivalry; it is also a nation ruled by the most powerful communist party in the world: the Communist Party of China (“CCP”). Communism as an ideology has been demonized thoroughly in America, and this demonization has impacted the racial identity of immigrants who came from communist nations: they are considered culturally inferior people with a backward, savage mentality who urgently need to be enlightened by people from the Western capitalist world, which by default represents numerous positive traits--freedom, liberty, democracy, and critical thinking skills. Therefore, for the Chinese community, their presumed connection to China not only makes them more foreign but also makes them inferior compared to many other racial minorities who come from capitalist nations.

Thus, this Paper proposes a modification of C.J. Kim's racial triangulation theory, as the Chinese community's unique situation deserves a different spot. Chinese communities are still perceived as foreign, but they are more foreign than many other Asian communities whose countries of origin impose no geopolitical challenges against the United States. Further, they are also perceived as culturally inferior to communities that have no connection with the communist ideology.

Bringing mainstream America and racial minorities' interests into the convergence curve is no easy task, and this is especially so when geopolitics is involved. This process requires a fundamental change of power dynamic between racial minorities and majorities, and it perhaps also needs a substantive shift in worldview and geopolitical interests. Nevertheless, this process must start with people. History alone cannot do it. At least, we all know that history cannot kill zombies. People do. We do.

This Paper has four parts. Part II provides a review of the old alien land law cases. This part revisits the Supreme Court's rationale in these cases and explains why they have become repugnant to contemporary constitutional jurisprudence and how they became zombie cases. Part III illustrates the relationship between the Interests Convergence Theory and the old alien land laws. Part IV focuses on the revival of alien land laws and its connection to Chinese Exceptionalism. In Part V, this Paper attempts to connect Chinese Exceptionalism with C.J. Kim's Racial Triangulation Theory and proposes that the Chinese community should have a new spot in this triangulation that represents their uniquely looming situation in this New Cold War.

[. . .]

The Interests Convergence Theory indeed has a pessimistic side. It demonstrates how hard it is for racial minorities to achieve equality, and it seems to indicate that racial minorities' interests are merely derivatives of mainstream society. This pessimism draws criticism of this theory, arguing that it ignores individuals' efforts to advance racial equality and does not provide any guidance or solutions either.

This Paper still defends this theory because it is an honest theory. Honesty can sound harsh from time to time, but it is necessary in the battle against racial injustice. Derrick Bell did not attempt to discourage people of color from fighting against injustice; rather, he showed people who and what people were fighting against. Racism is a form of systematic oppression from the ruling class that controls the means of production. Thus, waging a war against the ruling class solely on moral grounds is futile, and the hope that history alone can cure racism--as Justice Roberts alleged--is baseless idealism that is refuted by history itself. Eventually, people of color need to make a choice in the battle against racism: they either have to adjust their interests in the convergence contour with the ruling class or find a way to control the means of production on their own.

That is a hard choice to make, which deserves a full body of literature--rather than a chapter in one article--to address the many perspectives following this choice. Nevertheless, it is about people. History cannot cure racism. People can. We can.

Leo Yu, Associate Professor of Legal Research, Writing and Advocacy (ORCID: 0000-0001-8181-269X), Southern Methodist University Dedman School of Law.