The following is a guest post by my friend Peter Karsten of the University of Pittsburgh’s history department.
The fate of nearly 800,000 DACA individuals in the US might be averted if Congress and the President could hear, appreciate, and thereby respond to this legal analogy:
An English common-law rule by the 1860s had it that an invited guest could recover from injuries suffered due the host’s carelessness on his or her private property. But a trespasser could not. In the 1870s, state and federal courts began the steady process of rejecting that rule as unprincipled, in cases involving young children. These cases involved unlocked and unattended railroad turntables in county seats, where such devices were located to reverse the direction of locomotives where there was only a single track coming in and out of such locations. On weekends, children of different ages were coming upon these devises, with their “large, upright standards of guys, 12 to 15 feet in height, which could be seen from a considerable distance,” (as the Massachusetts high court put it in 1891). The locomotive was generally sitting there, the turntable thus looking like a Merry-Go-Round to children. Little ones climbed aboard, often dangling their legs over the end of the track, as older siblings began to crank the tool used to begin the process of reversing the direction of the locomotive.
The whole apparatus rested on a single ball-bearing, making it possible for the older kids to move it. When it came into juxtaposition with the outgoing track, the legs of the little ones were often mangled or lopped off. Parents sued, and in 1871 the Minnesota Supreme Court held that these little ones should not be regarded as trespassers, because they lacked the ability to know the difference between private and public property. Hence they should be treated in law as “invitees,” and should enjoy the protection of the law against railroads. This view was thereafter adopted throughout the land, and is called the “attractive nuisance” rule in this country. Let’s use here its more descriptive label in current English common law – “the allurement doctrine.”
The United States was and is, indeed, “alluring” to families illegally seeking to escape poverty and, in many cases, violence and bloodshed in their homelands. Shouldn’t those nearly 800,000 young children, taken by their “trespassing” parents into this country, be similarly treated as “invitees” when their fate is to be decided by Congress and the President? They committed no violation of federal immigration law. They are entitled in law to the same comparable protection afforded by our courts to such young innocents in this country in our past. It brings to mind the biblical passage, Ezekiel, 18:20: “The son shall not suffer for the iniquity of the father.