Commentary

America’s Illegal Pioneers

By Timothy B. Lee
This article appeared on Forbes.com on September 13, 2011.

Everyone knows that America was settled by immigrants. But few realize how much of this settlement was done illegally. Shortly after winning independence, Congress enacted legislation that called for newly acquired western lands to be divided into large 640-acre plots and sold for a dollar an acre.

This scheme proved proved impractical. As economist Hernando de Soto has written, few settlers had either $640 or the legal expertise to navigate America’s cumbersome property laws. And so thousands of migrants simply ignored the law and settled illegally on vacant land.

Offended by their disrespect for the law and worried about lost revenue, the federal government responded harshly. The US Army began evicting illegal squatters and destroying their homes. In 1807, Congress increased the penalties for squatting and beefed up the federal government’s enforcement powers.

These crackdowns failed. As migrants continued to pour west, it became obvious that the federal and state governments lacked the resources to evict more than a fraction of the lawbreakers. Around the same time, states began to eliminate property qualifications for voting. Politicians who had viewed squatters merely as common criminals began to see an opportunity to curry favor with these new constituents.

Kentucky was one of the first states to offer squatters a path to legalization. Under the Kentucky system, any squatter whose claim went unchallenged for seven years, and who paid taxes on the land during that period, was eligible for a clear title to the property regardless of who had owned it previously. This system was controversial at first, but other states gradually saw the need for reform. Congress finally acknowledged defeat in 1862 with the passage of the Homestead Act, which gave settlers free federal land if they cultivated it for five years. The Act didn’t so much establish the practice of homesteading as formalize what settlers had been doing illegally for decades.

Today, poor people still flock to the United States seeking a better life. And they face a dilemma not so different from the one their predecessors faced two centuries ago. Just as a cumbersome property system put formal land titles out of reach for many would-be pioneers, so today’s antiquated immigration system puts green cards out of reach for many migrants.

Many have come anyway, prompting a harsh government crackdown. The Obama administration set a new record by deporting nearly 400,000 people last year. But with an undocumented population in the millions, mass evictions are no more realistic today than they were in 1811.

So should we follow our ancestors’ example and offer a path to legalization? Critics charge that this would reward their lawbreaking and undermine America’s values. But this gets things precisely backwards. America has always attracted ambitious people who hate being told what to do. The Pilgrims preferred to risk their lives taming a new continent than obey the Church of England. Our founders illegally dumped other peoples’ tea in Boston Harbor. When Congress banned alcohol in 1919, millions of Americans ignored the law and kept drinking. Every year, many of us celebrate our nation’s independence by lighting illegal fireworks.

Obviously, immigrants who commit violent crimes should be prosecuted and deported. But those who used fake paperwork to get jobs picking our strawberries, caring for our children, or doing award-winning journalism are no more a threat to public order than our pioneer ancestors were.

Recognition of squatters’ property claims allowed them to become full, productive members of society. Formal property titles let them borrow money and improve their farms, accelerating economic growth in the young republic.

Providing today’s undocumented immigrants with a path to legitimacy would have similar benefits. Undocumented immigrants are reluctant to report crimes, unable to hold many types of jobs, and discouraged from making long-term investments in an uncertain legal environment. Legalization would fix all of those problems.

Today’s undocumented immigrants exemplify the American character far more than those who angrily insist that they wait in line until we fix our immigration system. Like generations before them, they have followed the American dream and are waiting for the law to catch up with them. It would be un-American to hold that against them.

Timothy B. Lee is an adjunct scholar at the Cato Institute. He covers tech policy for Ars Technica and blogs at Forbes.com.