In our opinion: Immigration and the rule of law

Published: Sunday, Sept. 26 2010 12:00 a.m. MDT

Anthony Fernandez sets down the sign he carried during an pro-immigration rally in St. George.

Jud Burkett, The Spectrum

The rule of law is a bedrock principle of our constitutional democracy. Many behaviors can corrode and undermine the public's confidence in the rule of law. Two of these are especially important regarding the issue of immigration.

The first is blatant disregard for the law. Few things hurt the efficacy of a rule as quickly as indifference to its enforcement.

The second, which is just as damaging, is stubborn enforcement of rules that are unjust. Humans seem to have an inborn sense of justice. We recoil when formal legal authority appears to be the only justification for enforcement of something that seems unfair. Officiousness, petty legalism, and injustice enforced by rules are not what is captured in our principled respect for the rule of law.

Our current immigration policies undermine the rule of law with the twin threats of blatant disregard of clearly established laws and the stubborn enforcement of unjust rules.

When 11 million individuals reside in our country without documentation to show that they entered lawfully, the law is threatened by indifference. But fundamental fairness is also threatened when officials forcefully raid the homes of and break up families whose sole motivation for undocumented entry was to seek freedom and opportunity.

This tension between written law and the demands of fairness is, of course, not new. Indeed, one of the great strengths of the American legal system has been its ability to navigate between these extremes that threaten to undermine public confidence in the rule of law.

A notable example of this is in our property law. For those of us who sing the praises of pioneer ancestors it may be disquieting to learn that the Utah pioneers (i.e., those settlers who arrived prior to 1869) were technically squatters. They settled on and improved lands without any formal legal authority. Historians frequently refer to these arrangements as "extralegal."

This was not just a Utah issue — it was an issue for most western lands. In lands acquired by the United States through purchase or treaty, the federal government had clear formal authority to step in and chase off squatters.

Instead of rigidly enforcing the law of property and thereby destroying the livelihood and wealth of ingenious freedom-loving pioneers, we adapted our laws using common sense to make what was "extralegal" part of the legal economy. Through accommodating legislation like the Preemption Act of 1841, the Homesteading Act of 1862 and the General Mining Act of 1872, the United States transformed extralegal uses of property in western lands into recognized titles and legal claims. It is important to note that land was not given away — there were requirements, processes, and fees — but none of it was onerous for settlers of good will.

These practical legal adaptations transformed those who first came to these mountain valleys from illegal squatters into honored pioneers. By making those adjustments, the government did not abandon law or give in to illegal behavior. Statesmen of the day had the common sense, decency, and foresight to recognize that the existing property law would prove too rigid and inhumane if it kept the orderly, productive activity of our pioneer forebears outside of the bounds of law.

The same hope for freedom and opportunity that motivated pioneers to settle the West continues to draw families to America. Over the centuries millions of immigrants have had that hope fulfilled. With each wave of immigration there has been understandable worry about the impact — but immigration has always enriched America culturally and economically.

The eyes of the world have turned to Utah. Global press outlets like The Economist and The New York Times have covered how Utah, with its pioneer heritage and a population with extraordinary international experience, is addressing this challenging issue.

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