Senator Marco Rubio has proposed letting young illegal immigrants stay in the United States legally. This is seen as an alternative to the Democrats’ DREAM Act, although supporters of the latter welcome the Rubio plan as a way to reinvigorate the agenda of immigration reform.

Romney has so far taken no position. No doubt he fears being accused of defending “amnesty.” In Republican politics, an accusation such as this can be poisonous to a campaign. This dynamic might have hit its peak in 2008, when the GOP presidential candidates stumbled over one another to prove they were the least pro-amnesty of the lot.

George W. Bush’s seemingly genuine desire to liberalize immigration laws faced resistance within his own party. The 9/11 tragedy likely provided him the necessary political capital and party leniency, but ramping up attacks on civil liberties, rather than taming them, is always easier at wartime.

It was Ronald Reagan who last enacted significant immigration reform. Millions of conservatives seem to ignore this. He called the plan “amnesty.” This was not a dirty word back then. It was not a verboten concept, either. In a 1980 GOP primary debate, both Reagan and George H.W. Bush appear to be competing for the distinction as the more compassionate candidate:

Bush said, “The problem has to be solved. We have... made illegal some kinds of labor I’d like to see legal... We’re creating a whole society of really honorable, decent, family-loving people who are in violation of the law... These are good people, strong people.”

Reagan responded, “I think the time has come that the United States and... our neighbor to our South should have a better understanding and relationship than we’ve ever had... Rather than... talking about putting up a fence, why don’t we work out some recognition of our mutual problems, make it possible for them to come here legally with a work permit... [A]nd open the border both ways...”

In the 1984 debate with Mondale, Reagan went further when asserting, “I believe in the idea of amnesty for those who have put down roots and lived here even though some time back they may have entered illegally.”

What a difference a generation makes! Nowadays, Democrats are frightened to sound as “soft” on illegal immigrants as Republicans tried to sound just a few decades ago.

As of September, President Obama had deported over one million illegal aliens and was well on schedule to achieve more deportations in one term than George W. Bush did in two. Despite talk of the U.S. government being soft on the issue, the trajectory has been towards increasing enforcement. There are now 850 miles of fence along the boundary with Mexico and the border control budget has climbed 13 times since 1990. Unmanned surveillance drones are now patrolling the border.

At the same time, the immigration “problem” has apparently receded. For the first time since the Great Depression, net migration from Mexico to the United States has gone negative. It would be a mistake, however, to attribute this mainly to the ramping up of deportations. The poor economy is likely the biggest reason.

This is not to say that the crackdowns aren’t having an effect, but it is not necessarily what one might expect. Professor Douglas Massey of Princeton’s Office of Population Research and head of the Mexican Migration Project argues that, in fact, the government’s war on illegal immigration could have the opposite effect of what is intended. According to Massey, the beefed-up border security has deterred Mexicans from crossing into California and Texas, but encouraged them to enter the country elsewhere, especially through the Sonoran Desert into Arizona.

Just as crackdowns on some illicit drugs at times can divert users and dealers to other drug markets, the government’s border enforcement is diverting illegal migration to where it had not yet been prevalent. What’s more, whereas previous waves of immigrants, crossing over the permeable border at the Rio Grande, would come and go as they pleased, the more recent crop of outlaws have found the risk of crossing back and forth to be too severe, and so many of them have simply decided to stay. It is very possible that there would be even more migrants returning to Mexico if not for Obama’s ratcheting up of border enforcement.

But what is the problem with them staying? We often hear that illegals come and take American jobs, as well as complaints that they are soaking up welfare benefits without contributing anything. Both of these cannot be true. Indeed, many illegals end up paying into Social Security and Medicare without any hope of getting any of it back.

Others argue that the law must be adhered to for the preservation of legal integrity. But there is a higher law than the government’s edicts. St. Augustine said that an unjust law is no law at all. The indignities endured by many illegals, living peacefully, working tirelessly and in constant fear of ICE, would speak to the injustice of the law itself.

The government’s various methods of attempting to curtail illegal immigration are not only counterproductive, but also cruel. Government makes crossing the border a major nuisance for legal travelers and a harrowing deadly risk for poor migrants. It empowers ruthless coyotes over their helpless clientele, and holds hundreds of thousands of captured illegals every year in an ad hoc network of detention facilities where many are subjected to horrible treatment and at least 110 have died since October 2003.

There are other ideas to stem immigration, all of them anathema to a free society—criminalizing the mere association with illegal immigrants or punishing charities for providing food or shelter. Those disdainful of big business say we should target employers. Even Reagan, foreshadowing many of today’s liberal advocates of immigration reform, promoted government sanctions against employers who hired undocumented workers. This is a wholesale assault on freedom of association and forces businesses to become extended arms of the police state. However, although jailing people who give illegal immigrants jobs will hardly help the workers, it is true, as Reagan argued, that the threat of deportation gives unfair bargaining advantages to bosses, creating a dangerous power relation. All the more reason to legalize immigration.

If the law is sacred, we have to contemplate what that means. Only the most reactionary of anti-immigration advocates support a general deportation of America’s eleven million unlawful denizens. Such a project would amount to a purge of totalitarian proportions, requiring massive surveillance, the police raiding of private homes, breaking up of millions of families, and dragging people kicking and screaming to countries with which they might have almost no familiarity. Yet this would seem to be just what “enforcing the law” would require, taken to its extreme.

Can we really embrace amnesty and open borders? Those who cherish the Constitution ought to. Despite what “original intent” conservatives might want to believe, the federal government hardly regulated immigration at all until the blatantly racist Chinese Exclusion Act of 1882, and more generally with the Immigration Control Act of 1924, the culmination of years of protectionist and nativist agitation during the Progressive Era. The U.S. Constitution does not even explicitly grant plenary border control powers to Congress, although matters of citizenship are surely a constitutional function of the federal government. Barring immigrants from privileges of citizenship is one thing; criminalizing them for moving and simply being here is entirely different.

Such states as Arizona and Alabama, on the other hand, have responded to illegal immigration by empowering police to demand people’s papers if their skin is the wrong color. Surely the kind of society these policies portend is worse than anything immigrants themselves are capable of.

Are there real problems associated with mass immigration and the border? Perhaps. But they cannot be solved by the same militarized law enforcement methods that have been such a failure in the drug war and other crusades of that nature. If Americans resent today’s economic conditions, let us focus on the government’s role in exacerbating the recession. If citizens fear violence on the border, we should look to Washington’s drug policy that feeds this violence by creating lucrative black markets in illicit substances. If people fear losing social cohesion, they should look to ways that government wrecks the family, encourages dysfunction, and obliterates community standards, and stop scapegoating the poor immigrants who are often among the best textbook examples of model neighbors—working hard, supporting their families, and pursuing the American Dream.

Let the immigrants stay. Rubio’s plan might be a small step toward sanity. But not until the word “amnesty” loses its taboo—not until we at least return to the terms of debate between those social radicals Reagan and Bush Sr.—will we really be on our way to a humane, just policy.