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.
