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Forgive Us Our Trespasses

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By Peter Costantini


Why do some people brand those who enter or stay in the United States without proper papers as "illegals"? The usual answer goes something like: "They broke the law."

In this sense, though, most of us are "illegals" one way or another.

Take speeding: on most highways, the flow of traffic tends to be 5 or 10 mph above the speed limit. This means that many drivers, possibly the majority, routinely break the law. If you do that, by this definition you're an "illegal".

If you have ever fudged on your taxes you may be an "illegal". Ditto if you drank alcohol before you were 18 or allowed your youngster to imbibe. If you parked in a no-parking area or didn't pay a parking ticket, you've got "illegal" written all over you. If you hired someone a few times to mow your lawn and didn't pay the required taxes, you could be an "illegal", by this definition. Without wracking your brain, I'm sure you can come up with more examples.

Clearly, this isn't a very good standard. Some laws are so widely violated with so little consequence that no reasonable person would define you as an "illegal" for breaking them.

At the other end of the spectrum of seriousness, Sojourner Truth was an "illegal" because helping runaway slaves escape was against the law in her day. Rosa Parks was an "illegal" in the eyes of many when she refused to move to the back of the bus in Birmingham.

Laws are not absolute or immutable. They evolve over time along with our understanding of justice. The great majority now sees those who challenged those unjust laws as justified and even heroic.

To be fair, though, speeding may not provide a very good analogy to immigration violations, because it can actually be dangerous in some cases. Crossing the border is not an inherently dangerous act. It becomes so only when expanded enforcement pushes crossers out into the Sonora Desert, and then it's dangerous to the immigrants themselves.

Merely evading the Border Patrol or overstaying a visa has long been a civil or administrative violation, although recently the Bush administration began to hold show trials - for example, the mass railroading on questionable criminal charges last year of close to 300 people caught in a workplace raid in Iowa (New York Times. "Immigrants' Speedy Trials After Raid Become Issue" August 8, 2008).

In many ways, immigration violations are more like trespassing. They too involve crossing a property line, although in this case the owner is a sovereign state.

Trespassing can involve breaking the law, but whether most of us would view it as a crime depends on the way the boundary is defined and what the trespasser does on someone else's property.

Let's say you sneak into someone's back yard and rob something from it. That's pretty clearly a crime, although trespassing is the least of it, because of what you did once you were on the property.

By contrast, suppose that for years you have crossed onto someone else's property past a "No Trespassing" sign to perform some kind of useful work there, and all along the owner has looked the other way with a wink and a nod. When you ignore the sign and continue to enter the property to work on it, is that trespass a crime?

In U.S. common law, there are principles covering similar if not identical situations. If you've been crossing over someone's property or otherwise using it as an owner would for more than a given period of time, without the owner's permission or acceptance, you can invoke "adverse possession" to claim title to that property.

There's also something called a "prescriptive easement" that doesn't involve the title. But it does allow those who trespass on and use the property of another for a certain number of years to acquire a permanent right to that particular use.

Don't worry, in the case of immigration nobody is talking about ownership (although our forbears did steal a substantial part of the Southwest from some of the immigrants' ancestors). But for decades, with a wink and a nod, we've made an implicit deal with immigrants.

It goes like this: You come up here and pick our crops, roof our houses, wash our dishes, clean our homes and take care of our kids. Just don't compete too much with native-born workers. We won't try too hard to stop you at the border and we'll look the other way in the workplaces. Then afterwards you can go back and build that casita in your hometown, or eventually you can bring your family across if you decide to settle here. For our part, we get cheap food, houses and childcare, younger workers to replenish our stagnant labor force, and some fresh ingredients in the old melting pot.

This bargain has been in effect for so long it's encrusted with a deep culture on both sides of the border. Many Mexican towns have long subsisted largely on the remittances sent back by paisanos working in the States. And many immigrant families here include citizens, permanent legal residents and undocumented immigrants. The housing boom was fed in part by the resulting increased supply of construction workers - who created real value, not a financial bubble. And tellingly, some researchers claim that we now spend more on salsa than ketchup.

For three decades, the liberalization of the Mexican economy - pushed hard by our government and locked in by the North American Free Trade Agreement in 1994 - has integrated the economies of the U.S. and Mexico tightly for business, trade and finance. Labor, though, has been frozen out of the bargain. The resulting ruination of millions of small farmers in Mexico, compounded by low wages and the difficulty of obtaining housing financing, has inexorably driven workers northward.

For a different and often more successful approach to integration of rich and poor economies, just look across the Atlantic to the European Union.

On this side of the pond, sadly, our dysfunctional tendency to criminalize immigration is nothing new. The recent hysteria looks a lot like the spasms of immigrant scapegoating that have wracked our country every few decades. During the Red Scare of the 1920s, for example, restrictive immigration laws were passed in an effort to stem the influx of subversive hordes of pizza and borscht-eating Southern and Eastern Europeans who had been pouring in for the past couple of decades (including my grandparents, father and aunt).

Mae Ngai of Columbia University has written an instructive paper on this phenomenon entitled "The Strange Career of the Illegal Alien: Immigration Restriction and Deportation Policy in the United States, 1921-1965".

Then for some fresh ideas, check out an ingenious and sensible approach to immigration reform proposed by Fordham Law School professor Jennifer Gordon in a New York Times op-ed: "Workers Without Borders".