The Paleo-Conservative Case for Elian's Father

by John Carney

Something has gone terribly wrong when the even the proposition that a father may not be deprived of his son without due process of law becomes controversial. As far as I can tell, no one in the entire history of our Republic has seriously challenged the social and legal arrangements under which Elian properly belongs with his next of kin, his father.

The supporters of the Cuban exiles who sought to keep Elian from his father argued that the child should have been left with his Miami cousins until a court could decide which custody arrangement is in the best interests of the child. But the "best interests" standard applies only when the custody dispute is between two parents, one of the parents is shown to be unfit, or both parents are unavailabe. Even then it has always reeked of statist hubris. To paraphrase the punk-rock band Suicidal Tendencies, "Who are you to decide a child's best interests?" Elian's mother is dead. No one gets to decide his best interests except his father.

As used by those who would have kept Elian in Miami, "best interests" is a sentimental shibboleth that operates as a recipe for the communism of children. No child belongs to his parents unless this belonging happens to coincide with the government's views about the child's best interests. Socrates half-jokingly prescribes just this sort of thing in Plato's Republic. But even Socrates required the rule of the perfectly wise and benevolent as a precondition for abolishing the family. No one's saying that we've got that regime today.

Many of us on the right saw that this was a clear cut case from the beginning. A child was being kept from his father. The government of Miami was acting as an accomplice. The mayor of Miami announced that his police would aid and abet the Miami relatives by refusing to comply with any attempt to recover Elian. To make matters worse, the entire affair seemed driven in large part by the desire of the Cuban exile community to take revenge against Castro. Haven't we had enough of ethnic special interests controlling our foreign policy? Now we are asked to let them overturn our custody laws as well?

One way to justify the influence of the Cubans is to deify them. A columnist I usually admire has been hinting that Elian was sent to our shores by divine intervention. Another commentator has cried out that he would rather live among the first five hundred people off the next boat from Cuba than the faculty of Harvard. For all I know these guys may really believe that Cubans are angels among our demon ridden Republic. However much I admire the Cuban-American community for their many virtues, I can squint my eyes toward Miami and see a gaggle of foreigners telling us that they can defy the laws of these United States.

John Derbyshire takes another tact. Keeping Elian is a matter of national self-assertion, he says. We should stand up for America by defying Castro. As an opponent of American intervention abroad I've grown skeptical about these arguments for national self-assertion. Every stupid war we've gotten ourselves involved in since George Bush invaded Panama has been justified on these grounds. What sort of country has to constantly prove to the world that we've "got the balls" to stand up to third-world weaklings? What exactly are we asserting about ourselves by keeping Elian? A truly self-confident America would do the right thing regardless of what Castro or the Cuban exiles wanted.

After Elian was removed from Miami just two days after the anniversary of the Waco massacre, many complained about the excessive force used by Janet Reno's troops. The pictures of black uniformed police wielding machine guns and pepper-spraying the crowds were terrifying. Especially the famous photo of an officer who seems to be pointing an uzi at Elian himself. We've had enough of military style assaults to save the children to know that this could have gone terribly wrong.

The analogy to Waco can be pressed too far. Whatever it was the Branch Davidians were up to at Mount Carmel, the children living in their compound were their own children. The situation would have been far different if they had a bunch of children whose parents were demanding their release. I wouldn't have had much sympathy with the argument that David Koresh believed he was saving the souls of other people's children by keeping them from their parents.

Some folks seem upset that force was used at all. But no decent father would allow his son to be held in a foreign land by his nation's enemies. Should Elian's father have confronted the family himself? Perhaps the most plausible justification for the existence of government is that it allows us to avoid resorting to this sort of private self-help to resolve disputes.

Unless we're anarchists we cannot say that the government should not have stepped in. But even if we are anarchists, we cannot say that force should not have been employed. One way or the other someone was going to go after Elian.

There is a point about federalism that I should raise here. Should the federal government be in the business of knocking down doors and resolving custody disputes? Of course not. I don't think the situation is even changed that much by the plausible link between custody of Elian with our relations with Cuba. But this only means that the problem should have been settled in Miami. The Miami mayor should have done exactly what Reno's men did. It is a mark against him and his supporters that he did not.

How can it be that the Clinton administration has actually managed to find its way around to a sensible position on Elian? No doubt the motives are bad. We can assume Bill Clinton is seeking to satisfy some corrupt donor to his campaign. Janet Reno has long been an enemy of the traditional family. The Justice Department's actions can be looked at as a naked exercise of power. They are taking Elian away because they have the tear gas and the machine guns to do it. But even a broken clock is right twice a day. It happens to be Reno's time, however much it might vex us implacable foes of the Clinton administration to admit it.

Please don't tell me that it was somehow anti-Christian to carry out the raid on Easter weekend. I wonder how outraged Trent Lott would have been if someone told him his son couldn't be taken away from his enemies until after the holidays. Or is that giving Lott too much credit? No matter how you cut it, the argument about Easter cuts in favor of returning the son to the father.

The only folks who deserve to emerge with their reputations intact from this mess are the judges on the 11th Circuit Court of Appeals panel that ruled that our asylum laws demand Elian be given a chance to apply. Janet Reno's justice department had argued that the law passed by Congress granting the right to apply for asylum to "any alien" really meant "aliens over 18." The Court properly threw out this argument as contrary to the plain meaning of the text of the statute. Which doesn't mean that our law is right. Do we really want to be in the business of granting children asylum against the wishes of their parents? The logic of liberating children from their parents will be very hard to contain once it gets loose.

The other person who deserves our admiration in this mess is Elian's father, Juan. What isn't there to admire about a man who has caused such a ruckus in pursuit of his right to raise his own son in his native land? The slippery arguments that he is somehow a puppet of Castro lose all plausibility in the face of this far more natural explanation.

There is a lesson here. We need to maintain our loyalty to our traditional social forms – the family, the community, the parish, the several states, and the Republic – at all costs. There is no need to speculate about whether this or that compromise is justified in the name of some abstract value. These are our traditions. They are the basic bulwarks of our people against the state, and the foundations of our liberty and virtue.

John Carney is a law student at the University of Pennsylvania.