Common Law principles of adverse possession, waiver and laches as applied to illegal immigrants would serve the interests of justice
Conservatives must do justice for long-term residents of the United States, unconnected to the issue of border security. Either it is morally right to treat otherwise letter-of-the-law-abiding immigrants that crossed our non-serious Southern border without official permission long ago, like criminals, or it is morally wrong. Yes, the Rule of Law is paramount, even when disconnected with moral hazard "magnets", but America's rule of law includes concepts developed in the Common (case-by-case) Law of England and the United States that temper unjust applications of statutes on the books or even valid warranty fee simple deeds to property and written contracts.
Under the doctrine of "adverse possession", one can lose the title to one's real property if he allows (even unknowingly through neglect) another to continuously possess it for ten consecutive years. One can be deemed to have waived provisions of a written contract due to regular and repeated conduct inconsistent with those provisions.
We, as a people, as reflected by the actions of our elected representatives in the legislative and executive branches of government, have over many decades had a de facto open southern border policy. The only real border security we have seriously pursued have been named Ike and a few fences. No president since Reagan has taken border enforcement seriously, and their inaction should have the consequence of waiving, after sufficient time, claims of criminality against people justifiably relying upon the winks, nods and long-time neighborliness of the reality on American soil, if not the letter of laws printed on paper that are only enforced against those committing felonies against persons or property.
This does not mean that long-term residents whose first act in America was to illegally cross its border are "entitled" to ALL privileges and immunities of full citizenship. The United States has long admitted non-citizen residents under various terms and circumstances. Congress has that constitutional power.
The root word of "amnesty" is "amnesia". Americans, collectively, conveniently suffered selective amnesia for decades as we welcomed the cheap labor our birth control-pill and abortion-assisted affluence desired. But long-term amnesia has consequences that are inconsistent with the Judeo-Christian principles that inform American concepts of due process if we arbitrarily decide to once again "remember" un-enforced laws against human beings that have become our neighbors over time. Inaction over time matters.
Human beings that we have long accepted as our neighbors should not be used as pawns to obtain other, even laudable, goals. The United States, like any "nation" worthy of the description, ought to control who can enter their sovereign territory. The drafters and ratifiers of the Fourteenth Amendment didn't intend to confer the power to confer U.S. citizenship to the whims of mothers in labor. But executive and legislative actions, even if not precisely-on-point Supreme Court decisions (yes, I am aware of the Wong and other decisions, with dicta that is cited to support the contrary view), that confer birthright citizenship, have obtained for decades and so are the de facto and de jure law.
But even those un-felonious, long-term non-citizen residents that do not have custody of children who breathed their first breaths on the Fruited Plain should not be jerked around with un-just applications of the letter of the law posing as the Rule of Law. Is America to be a nation of miserable Inspector Javerts relentless pursuing Jean Valjeans? For the equivalent of a loaf of bread stolen and a probation officer not reported too? God forbid. God says "an eye for an eye". Let the punishment be proportionate to the crime.
We will not have border security while President Barack Obama resides at 1600 Pennsylvania Avenue, much as we didn't while Messrs. H.W. Bush, Clinton and W. Bush resided there. Border security agents are suing the President for the right to enforce the law. Seems safe to assume that they aren't in a labor union given that they can get paid by not doing their job, but I digress.
The only possible border security we could trust with Obama in charge of law enforcement would be a physical fence he can't speak out of existence, and Obama ain't building no fence that doesn't immediately surround where he lays his head at night.
Republicans should do justice by the 11 million. Justice does not require a "path to FULL citizenship". It does require non-selective amnesia, i.e. amnesty defined as the right to remain in this nation (that has by its actions and inaction accepted them for many years as their neighbors) and exercise their unalienable human rights to life, Liberty and the pursuit of happiness. Those rights do not include the right to vote, ever, but I would be satisfied with a 10-year or more rule, if not a lifetime ban.
Amnesty is not a dirty word. We collectively had amnesia when it suited us. We can't now, consistent with our values, forget to continue to forget. Justice for the 11 million requires that we at least stop treating them like criminals. Now.
Their justice should not be held hostage to our inability to agree on mom, apple pie, baseball or border security; or out of proportion concern for "magnets". Magnets drawing people that yearn to breathe free, unrelated to even the strict rule of law advocated by those opposing any amnesty, are so much greater than occasional amnesties as to render them puny, and if the day ever comes when people won't be drawn here, those already here won't be living in the City of the Hill.
Compare the insistence of some conservatives to only deal with the plight and destiny of the 11 million after we secure the border, to those liberals who claim that to be against abortion one must be for whatever welfare state they insistent upon in order that these babies "forced" upon the mothers are paid for my those insisting on their birth. The moral choice is clear. Killing babies is morally wrong no matter the funding for food stamps.
Non-voting rights amnesty for the 11 million now.
G. Sand Lapper aka
“One man with courage makes a majority.” – Andrew Jackson
Editor – Hillbilly Politics
Co-Founder and Editor – Political Daily
Atlanta Law & Politics columnist – Examiner.com