• Elian Redux

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    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

    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

    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.

    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.


    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

    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.

    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.

    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.


    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.

    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.

    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.

    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.

    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.

    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

    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.

    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.

    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.

    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.

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

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