Elian Redux

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One
of my textbooks in law school – civil procedure, I think
it was – described a psychological study purporting to show
that once a person has heard both sides of a debate, he usually
comes away more convinced of what he already believed in the first
place. If that's case, then maybe I shouldn't think much of the
fact that the more arguments I hear for keeping Elian in the states,
the more I'm persuaded that we have to let him and his father
go.

The
July issue of Liberty did nothing to change that, despite
some fine pieces making the case for Elian liberationism. Timothy
Sandefur ("Elian Gonzales and Dred Scott") writes with
passionate conviction, but his fugitive-slave example just won't
wash. I could be wrong, and doubtless someone will correct me
if I am, but I don't recall that abolitionists ever got themselves
into the nasty business of liberating slave children over the
protests of their parents. Indeed, it would be surprising if they
had, given that a central charge in the abolitionist indictment
of slavery was that slaveholders had the power to break up slave
families. As historian James M. McPherson notes, the "breakup
of families was the largest chink in the armor of slavery's defenders.
Abolitionists thrust their swords through the chink." McPherson
gives several examples, among them that Harriet Beecher Stowe's
novel Uncle Tom's Cabin "homed in on the breakup of families
as the theme most likely to pluck the heartstrings of middle-class
readers." To get a real parallel to the Gonzales case, you'd
need a Dred Scott who wanted to return with his kids to slavery,
and a passel of abolitionists who wanted the state to seize his
kids.

Certainly
some of the arguments put forth by Mr. Sandefur and others are
quite compelling. The problem is, however, that every good argument
that can be advanced for separating Elian and his father is equally
valid as applied to Juan Miguel Gonzales's other son, Elian's
infant half-brother.

There
are two ways to make a principled argument that parents can't
take their children to live in totalitarian countries such as
Cuba. You can either argue (a) that life in Cuba constitutes abuse
or neglect; or (b) that the "best interests of the child"
standard should be applied outside of its normal context (i.e.,
in custody disputes between two biological parents), to allow
a third party to win custody as against a competent and nonabusive
parent. But I cannot think of any way to make argument (a) or
(b) without reaching the absurd result that Elian's little brother
has to be forcibly liberated as well. Let's look at the problem
from both angles.

Argument
A:

One
can make a principled argument that bringing a child to live in
Cuba constitutes abuse or neglect, thus overturning the presumption
of parental custody. But that argument cannot be based on the
fact that Elian Gonzales will have a lower standard of living
there. Despite what Timothy Sandefur asserts in "Elian Gonzales
and Dred Scott," it's clear that young Elian will have more
than adequate food and shelter in Cuba. Elian's father, a stocky
little guy, evidently eats well enough, and Castro won't let a
"hero of the Revolution" like Elian go unsheltered or
underfed.

Nor
is the fact that the Cuban Constitution explicitly repudiates
parental rights of any relevance to the abuse or neglect inquiry.
In other contexts, we recognize that parents can cede certain
parental rights in order to secure the kind of upbringing they
want for their children. Those who entered the Branch Davidian
"compound" knew that David Koresh claimed and would
exercise authority over their families inconsistent with normal
family life. And one would certainly have the right to take one's
child to live in the sort of arrangement once favored by certain
Israeli kibbutzim, where children are separated from their parents
and raised collectively. If we assume what may very well be the
case, that Juan Miguel Gonzales is a dedicated commie who wants
to raise a communist kid, then he understands that communism entails
state interference with the family. Like a Davidian convert or
an Israeli socialist, Juan Miguel Gonzales is voluntarily ceding
parental dominion in order to raise his child in accordance with
his wishes.

Instead,
the case that childhood in Cuba constitutes abuse or neglect must
center around the denial of the right to exit. Castro's denial
of that basic right is one of the most salient differences between
Cuba on the one hand, and the Branch Davidian community, Amish
country, and kibbutzim on the other. A kid raised in Amish country,
on a kibbutz, or with the Davidians has an eventual right to leave.
Barring Castro's death, for which all good people fervently pray,
a kid raised in Cuba does not. Thus, Juan Miguel Gonzales is permanently
alienating Elian's rights by deciding to raise him in Cuba.

One
can make a very persuasive argument that this constitutes abuse.
But if taking a kid to a country that denies the right to emigrate
is abuse, it's abuse whether the kid is six years old, or eight
months. If we can't let Juan Miguel Gonzales take Elian, we can't
let him leave with the infant half-brother either.

Argument
B:

We
reach a similar result if we argue that the "best interests
of the child" standard should apply outside of its normal
context. As noted above, in family law, the "best interests
of the child" standard is generally applied to custody disputes
between two parents. The inquiry for the judge is: is it in this
child's best interest to stay with his mother, or with his father?
Under normal circumstances, judges are not empowered to grant
custody to a third party, even if such a grant would truly be
in the child's best interest.

Some
libertarians intimate that the general rule should be loosened,
at least in this one case, to allow Elian's best interests to
trump parental rights. There are two problems with this proposal.

First,
it invites judicial tyranny. One of the great debates in legal
philosophy is between rules and standards. Rules – abstract, cold,
impersonal, formalistic and rigid – cabin in discretion. Standards – warm,
fuzzy, personal and malleable – invite the exercise of arbitrary
power. Distrusting political power and knowing men to be the corruptible
wretches they are, libertarians opt for rules. The "best
interests of the child" test is a standard, currently confined
by a rule (presumptive custody to a parent, as opposed to a third
party) that restricts the authority of officious do-gooders like
children's advocates and social workers.

If
we let the "best interests of the child" standard loose
in Elian's case, can we bottle it back up again without a revolution
in domestic child-custody law and permanent harm to parental rights?
Perhaps we can. The Polovchak case, in which a 12-year old boy
successfully defied his Soviet parents and got to stay in the
United States, didn't lead us to Hillary Clinton's dream-world
in which American children can divorce Mom and Dad. However, I
wouldn't want to press our luck.

The
second problem with "Argument B" is, once again, the
"little brother" problem. Elian isn't the only Gonzales
with an interest in liberty. It's in no child's best interest
to be raised in a communist country. If the "best interest
of the child" test demands that we take Elian, it also demands
that we take his brother.

Is
there any relevant distinction between Elian and his brother that
makes it possible to argue for the freedom of the former, but
not the latter? I can't think of one. It's true that, unlike his
brother, Elian is old enough to express himself, and at one time
voiced a desire to stay here. But that's not much to hang a distinction
on. While with the Miami family, Elian Gonzales said he wanted
to stay; now that he's with his father, he'll most likely say
he wants to go back to Cuba. The problem of trying to figure out
what Elian Gonzales really wants is much harder than the problem
of trying to figure out if Juan Miguel Gonzales's desire to return
to Cuba is genuine. In general we don't automatically take six-year-old
children at their word – they're insufficiently reflective and too
easily manipulated. If they're not, then libertarians have made
much ado about nothing in arguing against child-abuse witch hunts
all these years. Maybe all those kids were telling the truth when
the shrinks got them to describe being raped by evil clowns with
knives.

If
there is no distinction that separates Elian and his brother,
then each possible rule that can be articulated to govern this
case generates an absurd result. But, strangely enough, I've yet
to read a libertarian argument for Elian's freedom that bothers
to articulate a general rule that should govern this case and
others. When you start to examine what libertarians are arguing
when they urge the separation of Elian and his father, it begins
to look as though they are not in fact articulating any principle
of general applicability. Instead, they're applying something
like an ad-hoc, totality-of-the-circumstances test preengineered
to generate the outcome that most of them desire – that the kid
gets to stay. "When a child's mother is fleeing tyranny,
and she puts him on a raft, and she dies trying to get him to
freedom, and he gets here on Thanksgiving, and he says he wants
to stay… [etc., etc.]…, then that child gets to stay in the
United States." It's odd for members of the political movement
of principle to find themselves on such muddy footing.

Of
course, that isn't the only place for Elian liberationists to
stand. I've been assuming for this entire argument that even the
most principled libertarians blanche at the thought of resuiting
Reno's Raiders for a predawn incursion aimed at tearing the youngest
Gonzales out of the arms of his mother. (Or, less dramatically,
preventing the family from leaving the country with Elian and
his little brother.) But the argument from absurd results won't
faze someone willing to embrace the absurd result. It's quite
possible that some of you read the arguments in this essay and
said: "Yeah, we need to free the baby brother too. So?"
To those of you who fit into that category, I say: I admire your
devotion to principle. I also want to keep you as far away from
political power as possible. A state that invokes Liberty to forcibly
separate parents from children is a state without limits.

Liberty
is the highest political end; indeed, it's the only political
principle worth fighting for. But when you start to invoke the
concept of liberty as a rationale for state empowerment, you're
asking for trouble. You end up with a libertarian universalism
that's inches away from slipping into libertarian imperialism.
You end up, like Timothy Sandefur, musing about whether "the
United States [should] declare war on Cuba to liberate it… [o]r
China." You end up quoting Abraham Lincoln to the effect
that "no man is good enough to govern another man without
that other's consent" – oblivious to the irony.

In
their devotion to Liberty, Mr. Sandefur and other Elian liberationists
have forgotten Liberty's necessary corollary: hostility to Power.
They've made arguments the necessary implications of which would
justify: (1) forbidding communists from emigrating with their
kids; (2) forcibly separating those kids from their parents; and
perhaps (3) invading communist countries to bring other kids the
blessings of Liberty. I can't help but fear that the libertarian
jihad this implies would end up dramatically expanding Power and
constricting Liberty. Elian Gonzales is a sympathetic child with
a compelling story. I don't want him to grow up with a tyrant's
bootheel in his face. But I don't want my kid to grow up that
way either.

Gene
Healy is an attorney practicing in Northern Virginia. This will
appear in the August 2000 issue of Liberty
Magazine
.

Gene
Healy Archives

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