Elian Redux

[Paul Finkelman]

John Eastman's posting is not entirely correct; for example, in  The Antelope Case the
U.S. Supreme court sent some slaves back to their Cuban masters and freed others (chosen
by lottery) on the grounds that some were legally slaves in Cuba and therefore should be
returned, while others were products of the illegal African slave trade, and therefore
never legally slaves and thus freed.   In The Amistad case Justice Story was quite clear
that _if_ the blacks on the Amistad had been legally slaves in Cuba it would have been our
obligation to return them to Cuba.  Only  because they were not legally slaves in Cuba,
but had been illegally brought there in violation of Spanish laws and treaties, Story
ruled they were not slaves, and should be returned to Africa.

In The Creole Incident, American slaves seized a ship (The Creole) and sailed it to
British islands.  The _official_ position of the US was that the British should return the
slaves because they were legally slaves in the US.

Aside from Professor Eastman's misstatement of the law of slavery, is his more bizarre
notion that Cuban citizens are "held in what amounts to slavery."

One can condemn the Castro regime for many things.  I certainly have no love for it. But
let's condemn it for what it is -- a repressive totalitarian, poorly administered, and
stupidly run regime -- without resorting to hyperbole that fails to fit the conditions in
Cuba while at the same time utterly misunderstanding what slavery in the U.S. or Cuba, in
the 19th century was all about.  To use a few minor examples, and here, because I know it
better than 19th Century Cuban slavery and slave law, I will use U.S. slave law
(admittedly there are differences state-to-state in some minor details, but generally it
is possible to talk about a U.S. law of slavery that is pretty common to most states).

Slaves in the U.S. could not be legally married, control their children, could not be
taught to read, could own no personal property, could never legally leave their residence
without a pass, could never travel alone outside of the country, could not serve in the
military, could hold public office, could not legally receive a salary, could never be a
doctor, a pharmacist, a teacher, a professor, a clerk, a gunsmith, a printer, police
officer, dentist. Their masters could arbitrarily whip them, sell their children from
them, punish them in anyway they chose (short of intentionally killing them in most states
or using certain forms of torture or mutilation in some states).  Couples, who of course
were not legally married, could be separated at will by the master.  And masters were more
or less free to sexually exploit their slaves at will.  Slaves could not testify in court
against free people.

Now, surely Professor Eastman does not think that everyone in Cuba (save Castro) lives
under such circumstances.  We know Cuba has a very high literacy rate; there are Cubans
who are  teachers, doctors, etc. etc Cubans do testify against each other in court, get
married, raise their children, etc. .  Even if Prof. Eastman makes some arbitrary
distinction between government officers and officials and all other Cubans, the Cuban
govt. does not sell two years olds from their parents; does not condone the rape or sexual
exploitation of women not in government by those in government, does not whip people for
failing to pick sugar fast enough, etc.

It seems to me that getting away from the Cold War rhetoric of "enslaved Cubans" would be
useful for Americans, since it would enable us to better understand our own history of
enslaving people in this country; and it would enable us to better understand people
living in Cuba,.  It is just possible, for example, that Elian's father really does like
living in Cuba and really does want to return to Cuba.

One insight into the difference between slavery and communism, is that some people in Cuba
would still prefer Castro to Batista.  More interesting, perhaps is the number of Russians
who vote for ex-communists in Russia today.  Either they are volunteering for enslavement,
or they do not think they were "enslaved."  It is not very useful for our society to us
inappropriate historial analogies for Cuba or any other situation.  It merely confuses the
issues.

John C. Eastman" wrote:

> Art Wolf states that the critical issue is who speaks for Elian.  That is only true if
> Cuba is not a totalitarian regime in which its people are held in what amounts to
> slavery.  But if Cuba is a slave regime, then it does not matter who speaks for
> Elian.  No one could "authorize" his return to slavery.
> The common law, and also English statutory law, held that slaves escaping from the
> jurisdiction of their enslavement, into free territory, were deemed to be free.  See
> Blackstone 1 Commentaries Bk. I, Ch. 14; Stat. 3 & 4 Edw. VI, c. 16.  That was true
> whether or not the slave was an adult or a child, and in the case of the latter, I
> doubt that inquiries were made into the wishes of the slave father remaining behind in
> slavery.
> That rule was not followed here in the United States only because of an explicit
> constitutional provision to the contrary.  But the fugitive slave clause no longer
> applies, and it never applied as a textual matter to fugitive slaves from other
> countries.  It seems to me, therefore, that the correct inquiry is not whether Elian's
> father wishes for Elian to stay in the U.S. or return to Cuba, but whether the Cuban
> regime is tantamount to slavery.  If it is the latter, then the case for recognizing
> Elian's freedom is compelling.  That does not address whether he should be granted
> U.S. citizenship, of course, or even whether he should be allowed to stay in the U.S.,
> but it does it address how we are to determine whether he should be returned to Cuba.
> Having found that in Cuba he was held in slavery, it would be an odd position to let
> him exercise his freedom to return to that condition.  It is the character of a
> totalitarian regime that all persons in it (save for the governmental masters) are
> slaves; there is thus no possibility that Elian could return to anything but slavery.
> Blackstone recognizes the impossibility (or should I say illegitimacy) of selling
> oneself into slavery, as do we.    In other words, we do not need to figure out who to
> appoint as Elian's guardian to make the decision about whether he should return to
> Cuba, if Cuba is a slave regime.  Because no guardian could do in Elian's name what
> Elian himself could not do if he were of age.
> John C. Eastman
> Associate Professor, Chapman University School of Law and
> Director, The Claremont Institute Center for Constitutional Jurisprudence
>
> "Arthur D. Wolf" wrote:
>
> >         The critical issue has been, I thought, from the beginning: who speaks for
> > the child?  If the 11th Circuit decides that the child has rights
> > independent of, say, his father, and can apply for asylum on his own (with
> > the help, say, of a court-appointed guardian ad litem), then arguably a
> > grant of asylum would result in the inability of the father to remove his
> > son from the U.S.  Also if the Court decides that Elian's Miami relatives
> > may speak for him and override the father's wishes if asylum is granted,
> > then Elian remains here despite his father's wishes.  Either of these
> > results would shock me, but then again I am easily shocked.
> >
> >         As I understand the law, Elian would need to show that he meets the
> > criteria for asylum, usually equated with the criteria under the Refugee
> > Convention of 1951 and its 1967 protocol.  US law, more or less,
> > incorporates those criteria in the Refugee Act of 1980.  However, the
> > special immigration statutes that apply only to Cubans may modify those
> > criteria.  I do not know.  If his asylum claim is based only on his status
> > as a "Convention refugee," it will be an uphill battle for Elian to gain
> > that status.  But then again, this is a special case, so I am not making
> > any bets on the outcome.
> >
> >                                                 Art Wolf
> >                                                 Western New England College
> >
> > At 03:35 PM 4/20/2000 -0400, you wrote:
> > >Stepping back from the swirling emotions (if that is possible), I pose a
> > >question respecting the Eleventh Circuit injunction forbidding his removal
> > >from the United States.
> > >
> > >Suppose, for the sake of discussion, that there is no credible evidence
> > >that his father has abused, abandoned, or neglected him.  What, beyond
> > >stripping INS of the authority to exclude or deport, is the significance
> > >of a grant of political asylum?  Does it operate as a constraint on the
> > >father's parental rights?
> > >
> > >I ask because, as I understand U.S. constitutional law, one of the
> > >freedoms I have as the surviving parent of a minor child who is a U.S.
> > >citizen is to emigrate with my child to whatever country I choose without
> > >the prior consent of INS or any court.  If that is so, then wouldn't the
> > >father of Elian have that same right even if the child receives a grant of
> > >asylum?  Wouldn't that still be true even if Congress granted Elian
> > >citizenship tomorrow?
> > >
> > >I understood the original purpose of the asylum petition to have been to
> > >transfer from INS to the state of Florida the resolution of the question
> > >of custody; that played out initially with the grant to the Miami
> > >relatives of temporary custody under Chapter 751 of Florida Statutes.
> > >But the judge who entered that ex parte injunction was indicted for
> > >unrelated criminal charges, and was replaced by another judge.  The
> > >unindicted family court judge vacated the injunction and dismissed the
> > >custody petition, ruling that the Miami relatives have no standing under
> > >Chapter 751 of Florida Statutes to seek custody of the child because they
> > >do no come within the list of relatives enumerated in Florida Statutes
> > >751.011.  In a somewhat analogous case, the District Court of Appeal ruled
> > >that even between parents, custody disputes must be resolved in the
> > >child's home country, with the result that a U.S. citizen/mother was
> > >required to turn over her child to a Jordanian father.  Pereira v. Shanti,
> > >2000 WL 329652 (Fla. App. 2000).  In that case, the local police enforced
> > >the appellate court order six hours after its entry, and the child was
> > >airborne before midnight.
> > >
> > >As things now stand, Florid recognizes the father as having superior
> > >custodial rights to the great uncle.  Doesn't that mean that the asylum
> > >claim cannot achieve the goal of precluding the father from returning to
> > >Cuba with his son?
> > >
> > >What am I missing?  Do parents need governmental permission to emigrate
> > >from the United States if they wish to take their children with them?
> > >
> > >Michael R. Masinter                     3305 College Avenue
> > >Nova Southeastern University            Fort Lauderdale, Fl. 33314
> > >Shepard Broad Law Center                (954) 262-6151
> > >masinter at nova.edu                       Chair, ACLU of Florida Legal Panel
> > >

--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East Fourth Place
Tulsa, OK  74104

918-631-3706
Fax 918-631-2194

E-mail:  paul-finkelman at utulsa.edu