Are illegal immigrants pioneers? The irony of American history.

Breaking the law is a terrible thing, except when it isn't. Listening to politicians call for the criminalization of today's illegal immigrants, one would never guess that the forebears of some of those same politicians, and of many of their constituents as well, may have participated in an almost identical story of lawbreaking. Much of the territory of the United States was, after all, settled by illegal squatters, hundreds of thousands of people who disregarded federal law in search of a better life for themselves and their families. Indeed, many of the current residents of Mississippi, Alabama, Indiana, Illinois, and other states between the Appalachian and Rocky Mountains trace their roots directly to those onetime criminals we now laud as "pioneers." Squatting, on both public and private lands, was also common in California and other Western states.

As I have written in the Washington Post (April 16, 2006), during the first half of the nineteenth century, the federal government hoped to use its vast Western territories to pay off the national debt by auctioning the lands to the highest bidders, typically Northeastern land speculators. Settlers making their way west to start a new life considered this policy to be a serious injustice. Speculators often held land off the market for years, waiting for prices to increase. While federal law made it a crime to enter publicly owned land slated for auction, hundreds of thousands of squatters disregarded the law and trespassed on federal land (and also absentee-owned private land) to farm it illegally. Federal troops forcibly removed some squatters, but the illegal occupants usually reclaimed the land once the soldiers were gone.

Politicians, many of whom dabbled in land speculation, condemned the squatters' lawless "usurpation" of public lands and "audacious defiance" in the face of Congress's will. They accused squatters of being "greedy, lawless land grabbers who had no respect for law, order, absentee ownership of property, and Indian rights." On December 12, 1815, President James Madison issued a proclamation warning "uninformed or evil disposed persons ... who have unlawfully taken possession of or made any settlement on the public lands ... forthwith to remove therefrom" or face ejection by the army and criminal prosecution. But that didn't stop the settlers. In 1838, Henry Clay, expressing a widely shared sentiment, dismissed the squatters as a "lawless rabble."

Once the squatters managed to sink down roots, though, the federal government found it difficult to remove them from the land. Accordingly, by 1837 Congress had, on thirty-nine occasions, enacted retroactive amnesties for squatters occupying federal lands over the objection of people who argued that these amounted to a reward for lawlessness. These limited amnesties permitted squatters to purchase the land they occupied at a low price. Ultimately, the process of moving from occupation to landownership was fully legalized. The 1862 Homestead Act granted free title to settlers who met the statute's five-year-residency and improvement requirements. In one of the great ironies of American history, the lawless squatters underwent a dramatic image makeover to become, in the gauzy romanticism of our collective memory, heroic settlers.

The parallels between the controversy over illegal squatting by the ancestors of many white Americans and the current arguments over illegal immigration from Mexico and Latin America are significant. In both cases, poor people struck out for a new land to take for themselves the economic opportunity they believed they needed in order to provide a better life for their families. And in both cases, they willfully disregarded laws that got in the way of their plans. Although willingness to flout the law is always cause for concern, the mere fact of lawbreaking should not keep legislators from making an independent assessment of the justice of the aspirations that push people to (nonviolently) engage in illegal immigration. Similar concerns did not stop nineteenth-century Congresses from assessing, and ultimately endorsing, the justice of the demands made by illegal squatters.

The legal doctrine of necessity, which traces its roots in the Western tradition at least as far back as the thirteenth century, makes it lawful for someone in extreme need to disregard the law in order to satisfy that need, as long as in doing so they do not inflict an even greater harm than the one they seek to avoid. Discussing the crime of theft, Thomas Aquinas said that "it is lawful for a man to succor his own need by means of another's property, by taking it either openly or secretly." Although the doctrine has more recently been hemmed in by miserly judicial interpretation, its moral force remains compelling. After all, when the need motivating unlawful activity is sufficiently strong, it is unlikely that official repression will be able to stop it completely. And, as the Catholic moral tradition has long recognized, when the needs that push people to resort to illegal conduct are so great that they make lawbreaking justified or excusable, official repression itself becomes an act of lawless violence.

The squatters of the nineteenth century frequently appealed to necessity to justify their unlawful actions. In letters to Congress they pointed toward their "inability to purchase [land] elsewhere" and observed that their ejection from federal lands would leave them "shelterless from their cabins, with their wives and helpless children." Like the nineteenth-century squatters, many illegal migrants today from Mexico and Latin America can argue, often with great force, that they are justified in breaking immigration laws to satisfy pressing material needs. Propelled by often crushing poverty and the allure of economic opportunity to the north, they risk their lives to enter the United States for the chance to work long hours for little pay.

While it is all too tempting for the citizens of wealthy countries to disclaim responsibility for welcoming migrants from the third world, the Catholic social tradition has steadily insisted on an obligation to accept immigrants, particularly from unstable or underdeveloped nations. As John XXIII said in his encyclical, Pacem in terris, "when there are just reasons in favor of it, [a person] must be permitted to emigrate to other countries and take up residence there. The fact that he is a citizen of a particular state does not deprive him of membership in the human family, nor of citizenship in that universal society, the common, worldwide fellowship of men." In a 1996 message on illegal immigration, John Paul II questioned whether the right to emigrate, whose violation by the socialist bloc was the source of much criticism by Western democracies, had any meaning in the absence of a right to immigrate. Moreover, as the pope understood, the problem of illegal immigration cannot be considered apart from the underdevelopment that motivates it.

Calls by congressional Republicans to make illegal immigration a crime are both misguided and unjust. They are misguided because they are unlikely to staunch the flow of illegal immigration. And they are unjust because they indiscriminately criminalize conduct often undertaken out of urgent necessity.

This is not to say, of course, that the government is not justified in attempting to regulate the immigration process. Undocumented status renders illegal immigrants vulnerable to exploitation at the hands of unscrupulous employers. And the United States has a legitimate interest in safeguarding its security by keeping track of people entering and leaving the country. But efforts to get a handle on the problem of illegal immigration must be undertaken with a proper respect for the dignity of illegal migrants and the often legitimate needs that push them to break the law. As John Paul pointedly observed, "the illegal migrant comes before us like that 'stranger' in whom Jesus asks to be recognized. To welcome him and to show him solidarity is a duty of hospitality and fidelity to Christian identity itself."

Eduardo Moises Penalver is an associate professor at Fordham Law School. He is the author (with Sonia Katyal) of "Property Outlaws," soon to be published in the University of Pennsylvania Law Review.