On Elian Gonzalez and The Fugitive Slave Law
By Mackubin Thomas Owens. The Claremont Institute, April 2000.
Elian Gonzalez's Miami relatives should have known the jig was up when Dr. Irwin Redlener, the government's chief medical adviser on Elian, started making the morning talk show circuit. Dr. Redlener is not a psychologist or psychiatrist, nor had he ever actually met with the boy.
Nonetheless, on the Tuesday before the pre-dawn raid in Miami, Dr. Redlener informed Attorney General Janet Reno that Elian continues to be horrendously exploited in this bizarre and destructive ambiance. Elian's Miami relatives had psychologically abused the boy, he told Matt Lauer on NBC's
Today show. We think he should be rescued from there.
Traumatic as the events of Holy Saturday morning may have been for Elian and his relatives, they should count their blessings. After all, the last time Janet Reno invoked child abuse as a justification for a federal law enforcement raid, scores of people, including children who were
presumably the victims of the alleged child abuse, perished in the conflagration that consumed the Branch Davidian compound in Waco, Texas.
While the Holy Saturday raid may not have been another Waco (although a participant in the 1980 Iranian rescue mission points out that the Miami action against unarmed residents of a private domicile involved 50 more federal agents than the number of special forces troops that would have
confronted the armed occupiers of the U.S. embassy in Teheran), it is reminiscent of another shameful episode in American history--the federal enforcement of fugitive slave laws in the 1850s.
In April 1851, federal marshals in Boston arrested Thomas Sims, a 17-year old slave who had escaped from Georgia. He was held in a courthouse guarded by police and soldiers for nine days while his case was argued before a federal commissioner. When the commissioner found for Simsowner, 300
armed deputies and soldiers took him from the courthouse before dawn (sound familiar?) and marched him to the Boston Navy yard where another 250 soldiers waited to place him aboard a ship that would carry him back into bondage.
An even more celebrated case occurred in 1854. In May of that year, a deputy marshal arrested Anthony Burns, an escaped Virginia slave, also in Boston. While a federal commissioner decided Burns' fate, abolitionists tried to rescue him. President Franklin Piece sent federal troops to
Boston to keep the peace admonishing the district attorney to incur any expense to insure the execution of the law. Bostonians raised money to purchase Burns freedom and his owner was willing to sell, but to vindicate the fugitive slave law, the U.S. attorney refused to accept this solution,
pushing the case through to its successful conclusion.
James McPherson describes the scene in Battle Cry of Freedom, his Pulitzer Prize winning history of the Civil War. On June 2 the troops marched Burns to the wharf through streets lined with sullen Yankees standing in front of buildings draped in black with the American flag hanging upside
down and church bells tolling a dirge to liberty in the cradle of the American Revolution. At the cost of $100,000 (equal to perhaps two million 1987 dollars) the Pierce administration had upheld the majesty of the law. As Amos Lawrence later said, we went to bed one night old fashioned,
conservative, compromise Union Whigs & waked up stark mad Abolitionists.
Advocates of returning Elian to Juan Miguel Gonzalez, his father would, of course, dismiss the fugitive slave analogy as absurd. They claim that this is merely a child custody case, albeit one with international implications. According to Ms. Reno, the law is very clear. A child who has lost
his mother belongs with the sole surviving parent. Although this usually is true in domestic cases, does this reasoning apply to the case of Elian Gonzalez?
Juan Miguel Gonzalez may be Elian's biological father, but a decade ago, Fidel Castro gave a famous speech in which he said he was the real "daddy" of all Cubans. This is confirmed by the fact that the Cuban constitution declares that parents' rights exist "only as long as
their influence does not go against the political objectives of the State." And in a rare moment of candor, Luis Fernandez, the chief of the Cuban diplomatic mission in Washington declared that Elian is "a possession of the Cuban government." And just like an antebellum slave
owner, Fidel wants "his" property back.
This sort of reasoning is at odds with the principles of American republicanism. After all, a republic is based on the idea that no one can rule over another without the latter's consent. But Cuba is no republic. As recently as April 18, the United Nations Human Rights Commission condemned
Cuba for its continued violation of human rights and fundamental freedoms. This is a state that kills people, including children, who try to leave. In the summer of 1994, Castro's political police gunned down 10 children and 22 adults as they tried to escape to Florida aboard a leaky tugboat,
then prohibited the families from burying the bodies when they washed up on shore.
The real question here is this: is America obligated to return someone like Elian Gonzalez to a place like Cuba? The best analysis of this question that I have seen comes from John Eastman, a California attorney (and a brilliant student in a class on Law and Economics that I once taught many
years ago). As Mr. Eastman observes, the common law and English statutory law, from which much of American law emerged, held that a slave, whether an adult or child, escaping to free territory from the jurisdiction of his or her enslavement was deemed to be free.
That rule was not followed in the United States, says Mr. Eastman, only because of an explicit constitutional provision [viz. Art. IV, sec. 2, since abolished by the Thirteenth Amendment] to the contrary. But the fugitive slave clause no longer applies. Thus the correct inquiry is not
whether Elian's father wishes for him 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.
The evidence supports the contention that Cuba is tantamount to a slave state. Thus, like Millard Fillmore in 1851 and Franklin Piece in 1854, President Clinton is doing the dirty work of a despot who thinks of himself as the owner of other human beings. The Holy Saturday raid in Miami was
shameful. Like the Bostonians of 1854, we should drape our buildings in black, hang the American flag upside down, and play a dirge to liberty.
Mackubin Thomas Owens, an adjunct fellow of the Claremont Institute, is professor of strategy and force planning at the Naval War College in Newport, RI and a Marine infantry veteran of Vietnam. He can be reached by e-mail at owensm@nwc.navy.mil.
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