Elian Redux

[Spillenger, Clyde]

The most celebrated and wide-ranging recent sociology work on the nature of
slavery across cultures and through human history of which I am aware is
Orlando Patterson's Slavery and Social Death.  Patterson identified three
constituent elements of the slave relation that make slavery "distinctive as
a relation of domination."

The first is the extremity of the power disparity, and the extreme violence
involved in both the act of reducing the person to slave status and the
(necessary) repetitions of that act throughout the master-slave
relationship.

The second is what Patterson calls the slave's "natal alienation" -- the
slave's loss of any recognized claims or rights of birth (including his
claims to family and community), and his excommunication from membership in
any legitimate social order.

The third is that, as Patterson puts it, "slaves were always persons who had
been dishonored in a generalized way."  By "dishonor," Patterson means to
capture the slave's powerlessness and lack of any recognized independent
social existence.

As a result, Patterson suggests as a preliminary definition of slavery:
"[S]lavery is the permanent, violent domination of natally alienated and
generally dishonored persons."

Whether all or most Cubans would qualify as slaves according to this
particular "diachronic sociological" definition, I leave for others to say.


Clyde Spillenger
UCLA School of Law
(310) 825-7470
spilleng at mail.law.ucla.edu
Odd word errors may be caused by speech misrecognition or advancing
senility.



> -----Original Message-----
> From: Joseph Hall [SMTP:cc002856 at MINDSPRING.COM]
> Sent: Sunday, April 23, 2000 11:04 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Elian Redux
>
> Perhaps Professor Eastman's observation that Cuban citizens are "held in
> what amounts to slavery" would appear less bizarre to Professor Finkelman
> if
> he stepped back for a moment and re-evaluated the definition of "slavery"
> from a diachronic socological, rather than purely legal, perspective.
>
>
> Joseph D. Hall
> Anderson, South Carolina
>
>
>
> >
> > 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
> m
> asters 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
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