by Roberto Martinez and Carolyn Timmann
This amendment combines three proposals that were first individually passed by the commission.
Repeal of Florida Alien Land Law
The first proposal repeals the “Florida Alien Land Law,” thus, removing anachronistic language that would permit discriminatory treatment of the property rights of alien immigrants. Fla. Const. art. I, §2, sets forth the “Basic Rights” of all natural persons, including the right to “acquire, possess, and protect property.” But art. I, §2, contains an exception — known as the “Florida Alien Land Law” — that allows for the regulation and prohibition of those rights as to “real property by aliens ineligible for citizenship.”
In 1913, California passed the first “Alien Land Law,” which was aimed at the Japanese in response to the fear of unfair agricultural competition from an influx of Japanese agricultural workers.1 The law prohibited persons “ineligible for citizenship” from owning or leasing farmland. At that time, the right to become a naturalized citizen extended only to free white persons and to aliens of African nativity or descent. Every other race was “ineligible for citizenship.” The “Alien Land Law,” therefore, acted as a restriction based upon a racial classification without expressly naming the Japanese.2
In 1925, the Florida Legislature proposed a similar amendment also aimed at the Japanese. Although the proponent of the proposed amendment acknowledged that there was no immediate need for the measure, the amendment was intended to provide for the future contingency that Asian farmers, driven out of California by the property restrictions, would head to Florida.3 The amendment was approved by Floridians in 1926 and later readopted during the 1968 revision of the Florida Constitution.4
No statute has ever been enacted implementing the Florida “Alien Land Law.” Nor has any court — state or federal — examined whether it is constitutional under the federal or Florida Constitution. But the Alien Land Law implicates the Equal Protection Clause of the 14th Amendment because it treats Asians differently based solely on race.
In 2008, a proposed amendment similar to this one was placed on the ballot by a resolution of the Florida Legislature in 2007 and received only 47.9 percent of votes for approval. The sponsor of the amendment speculated that it was defeated because voters mistakenly believed that it dealt with illegal aliens. This proposed revision has nothing to do with illegal aliens.
Deletion of Art. X, §19’s Text
The second proposal is strictly a technical revision to the Florida Constitution. In November 2000, Florida voters approved an amendment to the Florida Constitution mandating the state establish a system of high-speed ground transportation. This became art. X, §19, which passed by about 53 percent.
In November 2004, however, this provision was repealed through an initiated constitutional amendment. The amendment, titled “Repeal of High Speed Rail Amendment,” passed by about 64 percent. This revision is not about the merits of the issue. It simply deletes the text of art. X, §19, thereby completing the intent of the voters when they approved the repeal of this mandate in the state constitution. In order to preserve the current section numbering in the constitution, though, the text will be replaced with the word “Repealed.”
The Savings Clause
The third proposal seeks to repeal what is known as the “Savings Clause.” Currently, art. X, §9, prevents the legislature from applying legislative changes to criminal laws to the prosecution or punishment of crimes committed prior to the change: “Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.”
The proposed revision — which eliminates the references to “amendment” and to “punishment” — amends the Savings Clause to remove the prohibition on the retroactive application of legislative changes to criminal laws for purposes of punishment, thereby providing the legislature discretion to retroactively apply changes that reduce criminal sentences.
If approved by the voters, Amendment 11 would take effect January 8, 2019.
1 Japanese American Citizens League, Asian American History, https://jacl.org/asian-american-history/#_ftnref29.
2 Densho Encyclopedia, Alien Land Laws, http://encyclopedia.densho.org/Alien_land_laws/.
3 Constitution Revision Commission, Declaration of Rights Committee Proposal Analysis at 3 (Dec. 20, 2017).
4 Fla. Const., Dec. Rts. §18 (1926).
CAROLYN TIMMANN served as a commissioner on the 2017-18 Constitution Revision Commission. She began her career in public service as a judicial assistant and Martin County law librarian. She then worked as a legislative assistant in the Florida House of Representatives and in the Attorney General’s Office as special assistant to Florida’s first two solicitor generals. In 2006, Timmann served on Gov. Charlie Crist’s transition team before becoming executive deputy chief of staff for military and veterans’ affairs, gubernatorial councils and commissions, and statewide consumer projects. She was also the governor’s liaison to the 2008 Taxation and Budget Reform Commission. Since 2013, Timmann has served as the Martin County Clerk of the Circuit Court and Comptroller.
ROBERTO MARTÍNEZ served as a commissioner on the 2017-18 Constitution Revision Commission and is a widely recognized litigation attorney and partner at Colson Hicks Eidson. A former U.S. Attorney for the Southern District of Florida, he has a record of active service in education, both in Miami-Dade County and on a state level, serving as vice chair and as a member of the State Board of Education for several years. He received his J.D. degree from the Georgetown University Law Center and a M.S. in accounting and B.S. in economics from the University of Pennsylvania, Wharton School of Business.