Abstract

Excerpted From: Jill M. Fraley, Feudal Is Fine Because Property Is Sovereignty: Rational Basis Equal Protection and the New Noncitizen Land Laws, Indiana Law Journal Supplement 133 (2026) (249 Footnotes) (Full Document)

States are enacting a new wave of land laws: laws that prohibit ownership of land by noncitizens. Reacting to the combination of land ownership consolidation and increases in land owned by foreign governments, as well as political events such as the Chinese balloon, state lawmakers have rushed to reanimate an area of law traditionally known as “alien land law,” which hasn’t been popular since before World War II. Opponents, including the ACLU, have already filed equal protection challenges, which many scholars view favorably.

The governing precedent relies on federalism and specifically the allocation of property law to the states to hold noncitizen land laws constitutional. However, the Supreme Court hasn’t addressed these land laws directly since the Terrace cases in the 1920s, before both Korematsu and Hirabayashi . The Terrace cases have been somewhat unpopular--there was even a symposium on Terrace titled “the worst Supreme Court case ever.” Now, particularly with a Court downplaying stare decisis, some commentators expect a new ruling and a vindication of equal protection over property concepts casually dismissed in modern commentary as feudal.

This Article argues that the Terrace cases will be and should be upheld by the Court. My argument is that while the Supreme Court has somewhat expanded equal protection, the limits of that expansion, as well as the Court’s continued recognition of the relationship between property and sovereignty, suggest that most, if not all, noncitizen land laws are constitutional. The Court will affirm prior decisions recognizing that citizenship does not necessarily align with race, but it does necessarily align with sovereignty.

In Part I, I examine the new noncitizen land laws and their origins. I discuss the 1923 Terrace cases and show that the Court thoughtfully considered the risks of discrimination but championed those concerns only for citizens because the Court recognized the interlocking of property, citizenship, and the Constitution. I analyze noncitizen equal protection cases, including ones where the Court refused to reexamine the Terrace cases, and argue that since the 1990s the Court’s jurisprudence suggests a likelihood of adhering to the Terrace line. In Part II, I engage the criticisms of the Terrace line. I show that critics rely on simple dismissals of the Court’s property logic as feudal, assume (without evidence) that noncitizen land laws are inherently racist, and blur the legal distinction between citizens and noncitizens. Ultimately, I show that the Supreme Court has regularly ruled on adjacent issues that speak to federalism and state control of property consistently with Terrace . We must expect a similar holding on pending challenges to noncitizen land laws, and such a holding would be imperative for both democratic stability and national security, particularly in the context of land consolidation by foreign governments and corporations. The tight connections between property control, sovereignty, and democracy demand that our attention to security prevail over rights within the context of foreign consolidation of land ownership.

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The Terrace case specifically relied on the connections between national security, territorial integrity, and sovereignty. The Court based its holding on the conclusion that the “quality and allegiance of those who own, occupy and use” a state’s lands “are matters of highest importance and affect the safety and power of the state itself.” The holding of the Court--that state law applies in the absence of a treaty to the contrary-- recognizes the responsibility of the federal government for deciding who is a friend and who is a foe.

Opponents of the Terrace case seem to assume that all animus is (or at least should be) unconstitutional; such sentiments might be reasonable in an enduring world peace. But we live in the reality of consistent and ongoing threats to stable democracies, as the war in Ukraine demonstrates daily. International law similarly reflects this understanding of not only the tie between citizenship and sovereignty, but also the direct tie to property. Restrictions on noncitizen land ownership are entirely permissible under international law, and, in fact, such restrictions are commonplace in countries across the world.

Recent challenges to newly enacted noncitizen land laws underscore the urgent need for courts to reaffirm the states’ broad authority to regulate foreign ownership of real property. Critics of these statutes often argue that noncitizen-based distinctions violate equal protection principles or improperly intrude upon federal prerogatives. Yet these challenges neglect both the constitutional allocation of property law to the states and the deep historical ties between property control, sovereignty, and the safeguarding of democratic institutions. Just as the Terrace Court recognized that unfettered foreign ownership risked eroding local self- governance, modern courts must acknowledge that extensive foreign consolidation of land can destabilize the very foundations of democracy.

Professor of Law, Washington and Lee University School of Law.