A striking feature of Anglo-American property law is that one can acquire good title to land by trespassing on it for long enough. In seeking to explain this doctrine of “adverse possession” — which goes back to the 13th century _ Oliver Wendell Holmes made an acute point about the relationship between legal rules and human psychology.
“I should suggest,” Holmes wrote, “that the foundation of the acquisition of rights by lapse of time is to be looked for in the position of the person who gains them. The connection is further back than the first recorded history. It is in the nature of man’s mind. A thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it. The law can ask no better justification that the deepest instincts of man.”
In downtown Denver this past Saturday I saw 50,000 people illustrate Holmes’ point. This immense crowd was only one-10th as large as that which gathered in Los Angeles to protest a bill that would, among other things, transform anyone in the United States without proper documentation into a felon. Gazing at that sea of brown faces, I got a certain grim amusement from the thought of the panic that these gatherings must produce in the likes of Rep. Tom Tancredo, R-Colo., and other demagogues who have been exploiting anxieties about illegal immigration.
After the rally, I spent nearly two hours listening to animated Spanish-language conversations between various participants. Most had come from Mexico, although a few were from Central America. Some had overstayed visas, while others had entered the country illegally. Without exception, all these people worked full-time jobs, and many had more than one. They were construction workers, cooks, landscapers, and housekeepers. Several were taking English classes in what spare time they had.
I spoke with a married couple who came to Denver from Mexico City seven years ago. Now in their mid-40s, with two teenage children, Carlos and Maria (not their real names) were middle-class Mexicans who found it increasingly difficult to do more than feed themselves and their children in Mexico’s broken economy. Carlos had been an engineer for a large computer company that downsized him when it merged with an American firm. Maria had been trained as a laboratory technician, but until Carlos lost his job she was a housewife.
Desperate for work, they headed north. Carlos now changes tires for a trucking firm, while Maria cleans elegant houses in Denver’s upscale Cherry Creek neighborhood. Both pay income and social security taxes. They would like their children to go to college in America, but realize this will be difficult if not impossible without some change in their legal status.
There are no simple answers to the dilemma created by our collective willingness to allow Carlos and Maria, and millions of others like them, to build our buildings and cook our food and trim our gardens and raise our children. The longer such people stay in this country, the longer they feel _ and with justification _ that they belong here.
It is true they have broken the law. But, as Holmes points out, laws that we allow to be broken for long enough cease to have any moral or practical force _ especially when we have indulged in such negligence to our advantage.
Indeed, the origins of all legal rights become suspect if one examines them too closely. For example, those in the immigration debate who prattle about the sanctity of the rule of law ought to consider how throughout our history the spoils of war have been transformed almost instantly into “property rights,” by immigrant conquerors wishing to give their conquests a more respectable name.
(Paul Campos is a law professor at the University of Colorado and can be reached at Paul.Campos(at)Colorado.edu.)