Dreamers and Misdemeanors: Amnesty and Honesty. Adverse Possession as the American Way of Life.

Dreamers and Misdemeanors: Amnesty and Honesty.

Adverse Possession as the American Way of Life.

Burton Weltman

Prologue: An Argument on behalf of the Dreamers.

I am writing this in early February, 2018 in the midst of the national debate about what should be done with the so-called Dreamers, undocumented immigrant children who were illegally brought to the United States by their parents and who have grown up as Americans.  Depending on how you define Dreamers, there are between some 800,000 and two million of them.  I present herein an argument on their behalf.

Illegal is not Dishonest.

One of the talking points of the xenophobes who are opposed to allowing so-called Dreamers to remain in the United States is that allowing the Dreamers to stay would be giving them and their parents a reward for illegal behavior.  Xenophobes have couched the debate in terms of amnesty versus honesty, denigrating those who support the Dreamers’ right to stay as favoring an ignominious amnesty, and congratulating those who oppose the Dreamers as upholding the principles of honesty.  The debate is portrayed by the xenophobes as dishonest law breakers versus honest law supporters.

I think the xenophobes have got it right that the debate is about honesty versus amnesty.  I just think they have it the wrong way around.  Honesty is defined by Webster’s Dictionary as being fair and straight-forward.  By this definition, the Dreamers are the honest ones.  They have not done anything underhanded or unfair.  The overwhelming majority of them have lived upright and productive lives in the United States.  They may be illegal, but they are not being dishonest.

It is their xenophobic predators who are being dishonest.  And I think the debate is better seen as between faith breakers and faith makers, a matter of honesty is as honesty does.  It’s the Dreamers who are the honest faith makers and their opponents the dishonest and dishonorable faith breakers.  The Dreamers were brought here as children, are in this country on good faith, and are just doing what most good young people here do to be successful.  It is the xenophobes who are breaking faith with the Dreamers.  In turn, I do not think the Dreamers should be seen as needing amnesty.  They just need a fair construction of the law.

Illegal is not a Crime.

There is a fundamental distinction in our legal system, going back to the Middle Ages, between what is termed malum in se and malum prohibitum.  Something that is malum in se is considered evil in itself and is deemed illegal because it is evil.  Something that is malum prohibitum is considered inconsistent with the public welfare or disruptive of the public welfare, and is deemed illegal essentially because it is inconvenient.

There is also a fundamental legal principle going back to the Middle Ages that considers something as your right if you have been doing it continuously and it is not harmful in itself, i.e., is not a malum in se.  That means if something is merely a malum prohibitum, you can gain the right to do that thing if you have been continuously doing it.  Just because something is illegal, that is, it is not authorized by the law, does not necessarily make that thing a crime.  And it may even become legal under the appropriate circumstances.

Trespassing on somebody’s land is the classic example of a malum prohibitum that becomes a legal right if you do it continuously.  If you regularly walk or drive across someone’s land for long enough with at least the implied knowledge and/or acquiescence of the landowner, the landowner will eventually no longer be able to prohibit you from entering and traversing his land.  You have gained the right to cross his land by what is called adverse possession.  It takes years to gain this right, but it is an example of turning something illegal into something lawful.

For most of American history, there were no prohibitions against immigration.  Anyone could come into this land and after a period of years could apply for citizenship.  With the exception of a short and shameful period during the 1790’s when the Alien and Sedition Acts provided for the deportation of immigrants on political grounds, there was virtually no regulation of immigration until the late nineteenth century, and no immigration quotas until the early twentieth century.

Most citizens of the United States today are the descendants of immigrants who came here when immigration was either totally or almost completely free.  In the early 1900’s, laws were enacted which changed things, and essentially required you to get authorization from the federal government to immigrate into the United States. These laws made unauthorized entry into the country illegal.

What is called illegal immigration under current law is really two different things: unlawful or unauthorized presence in the United States and unlawful entry into the United States.  Unlawful or unauthorized presence in the United States is not defined as a crime.  Dreamers who were brought by their parents to this country as children may be present unlawfully, but they did nothing wrong and they have not committed a crime.  Under the law, they can be deported but not otherwise punished.  Their only offense is living, and theirs is a genuinely pro-life defense.

Unlawful entry is a crime.  The Dreamers’ parents may be guilty of unlawful entry and, therefore, guilty of a crime.  But it is only a malum prohibitum.  There is nothing inherently evil about what they did.  And both the unlawful presence of the Dreamers and the illegal entry of their parents are essentially forms of trespassing.  As a consequence, continual residence in the United States especially by the Dreamers, but also by their parents and most other illegal immigrants of longstanding presence in the country, ought to lead to the right to remain here, especially if they have otherwise been lawful residents.  The Dreamers, their parents and most illegal immigrants ought to benefit from the principle of adverse possession.

Honesty should not be a Crime.

Amnesty is for people who have committed crimes.  The Dreamers should not need amnesty because their status is not criminal.  Not a felony, not a misdemeanor, not even an infraction.  The idea that allowing Dreamers to remain in the United States and possibly become citizens is a form of amnesty is contrary to the fundamental principles of our legal system.  It is dishonest to treat them as offenders when they have committed no offense.  Unfortunately, dishonesty is not a crime in this country.  If it was, it is those who oppose the Dreamers who would be the offenders, not the Dreamers.  But if dishonesty is not a crime, honesty should certainly not be considered one. For this reason, the Dreamers should not need amnesty.

It is ironic that most of the people who are objecting to the Dreamers’ presence in the United State are descendants of immigrants who came here when immigration was essentially free, and who occupied this country in what could only charitably be called adverse possession against the real owners of the country, the Native Americans.  The occupation of the country by Europeans was actually more like breaking-and-entering with murderous force, a highest level of felony in our criminal code.  But, at this point, the Europeans’ continued appropriation of the land is justified as a so-called fact-on-the-ground, a fait accompli that represents the right of their adverse possession.

The Dreamers have done nothing so egregious as the Europeans who took this country by force and fraud from the Native Americans.  The justification that most European Americans today would give for their right to continue to live here is that European settlers (“settler” being a euphemism for trespasser) and their descendants have been here for so long, it would be unfair to send them back to Europe.  The same reason should apply to most illegal immigrants.

Since this country essentially justifies its existence on the grounds of adverse possession and continues to operate under that principle to the present day, Dreamers and other ostensibly illegal immigrants of longstanding residence in the country should not need a charitable act of amnesty to be able to stay here.  The honest thing to do would be to recognize their continued residence in the United States as a matter of right.

BW 2/6/18



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