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Commerce clause abuse
TownHall.com ^ | Wednesday, November 5, 2003 | Walter E. Williams

Posted on 11/04/2003 10:08:00 PM PST by JohnHuang2

Several weeks ago, under the title "Is It Permissible?" I discussed how Congress systematically abuses the Constitution's "welfare clause" to control our lives in ways that would have been an abomination to the Framers. Quite a few readers pointed to my omission of Congress' companion tool to circumvent both the letter and spirit of the Constitution, namely the "Commerce Clause."

The Constitution's Article I, Section 8, paragraph 3 gives Congress authority "To regulate Commerce with Foreign Nations, and among the several States, and with the Indian Tribes." During the war, the 13 colonies formed a union under the Articles of Confederation (1778) whereby "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled." The Treaty of Paris (1783) that ended the war between the colonies and Great Britain recognized 13 sovereign nations.

A key failing of the Articles of Confederation was the propensity of states to erect protectionist trade barriers. When the Framers met in Philadelphia in 1787 and wrote the constitution that governs us today, they addressed that failure through the commerce and the privileges and immunities clauses that created a national free-trade zone.

Thus, the original purpose of the Commerce Clause was primarily a means to eliminate trade barriers among the states. They didn't intend for the Commerce Clause to govern so much of our lives.

Indeed, as James Madison, the father of our Constitution, explained, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."

For most of our history, the Courts foiled congressional attempts to use the "Commerce Clause" to sabotage the clear meaning of the Constitution, particularly the Ninth and 10th Amendments. The courts began caving in to congressional tyranny during the 1930s. That tyranny was sealed in 1942, by a little known U.S. Supreme ruling in Wickard vs. Filburn.

Filburn was a small farmer in Ohio. The Department of Agriculture had set production quotas. Filburn harvested nearly 12 acres of wheat above his government allotment. He argued that the excess wheat was unrelated to commerce since he grew it for his own use. He was fined anyway. The court reasoned that had he not grown the extra wheat he would have had to purchase wheat -- therefore, he was indirectly affecting interstate commerce.

If there's any good news, it's the tiny step the U.S. Supreme Court took in its in U.S. Vs. Lopez (1995) ruling. In 1990, Congress passed the Gun-Free School Zones Act, citing its powers under the "Commerce Clause." Namely, the possession of a firearm in a local school zone substantially affected interstate commerce.

Why? Violent crime raises insurance costs, and those costs are spread throughout the population. Violent crime reduces the willingness of individuals to travel to high-crime areas within the country. Finally, crime threatens the learning environment, thereby reducing national productivity.

While all of this might be true, the relevant question is whether Congress had constitutional authority to pass the Gun-Free School Zones Act. The U.S. Supreme Court ruled it didn't, saying, "If we were to accept the government's arguments, we are hard pressed to posit any activity by an individual that Congress is without power to regulate."

In other words, the hours children spend studying, the amount of rest they get and what they eat have something to do with learning. Congress could easily manufacture a case for the regulation of these activities based on its perverted interpretation of the "Commerce Clause."

While the Lopez ruling is a tiny step in the right direction, there's much more to be done. Constitution-respecting Americans should demand the impeachment of congressmen and other elected officials who ignore their oaths of office to uphold and defend the Constitution.



TOPICS: Constitution/Conservatism; Editorial; News/Current Events
KEYWORDS: commerceclause; walterwilliams; wodlist
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To: Dane
YOS -- Your Opinions Suck
51 posted on 11/05/2003 9:40:11 AM PST by tpaine (I'm trying to be 'Mr Nice Guy', but Arnie won, & our republic, as usual, will lose.)
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To: jmc813
Sounds like he has an opinion but isn't is consumed by it to the point of being a regular on the legalize dope threads. As for the Limbaugh threads, you must mean one of those where the pro-dope folks were trying to make Limbaugh a poster child for their cause I presume.

That tactic sure backfired. Some of the usual suspects made most flamming liberals appears reasonable and compassionate.

52 posted on 11/05/2003 9:43:45 AM PST by CWOJackson
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To: philman_36
The government involvement is what I have the issue with. You could very well get caller ID and not answer calls that you don't recognize. You could have also paid for the "filtering" service that is offered by most phone companies.

Instead, your "sign" has now been funded by the fed government. You should be paying for your own service, just like you had to pay for your "no soliciters" sign.
53 posted on 11/05/2003 9:45:16 AM PST by CSM (Shame on me for attacking an unarmed person, a smoke gnatzie!)
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To: tpaine
Glad to see you finally admitting that you are not a libertarian, my boy.

I am a libertarian, not a Libertarian. Big difference.

54 posted on 11/05/2003 9:45:41 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: tpaine; philman_36; jmc813
YOS -- Your Opinions Suck

Thank you tpaine for the answer.

JMO, but your comrades on your side are sliding into normal every day demo ad hominem rhteoric, IMO.

Notice, I did not say you, tpaine.

55 posted on 11/05/2003 9:45:59 AM PST by Dane
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To: Dane
Huh, "The Fool on the Hill" wins out in the end at the end of that song.
Really? Let's look at those lyrics...
Fool On The Hill
Day after day, alone on the hill,
The man with the foolish grin is keeping perfectly still.
But nobody wants to know him,
They can see that he's just a fool
.
And he never gives an answer .....
Chorus
Well on his way, his head in a cloud,
The man of a thousand voices, talking perfectly loud.
But nobody ever hears him,
Or the sound he appears to make.
And he never seems to notice
.....
Chorus
And nobody seems to like him,
They can tell what he wants to do.
And he never shows his feelings,
Chorus

Only you could interpret that as the fool wins out at the end!

BTW, are you going to answer the question of what the acronym "YOS" means.
You've seen it before...Your Opinion Sucks!
There is little in your many "opinions" that I agree with.

56 posted on 11/05/2003 9:46:04 AM PST by philman_36
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To: tpaine
"But what am I, if not libertarian? Chopped liver?"

I pass...morning tp.

57 posted on 11/05/2003 9:49:14 AM PST by CWOJackson
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To: Hemingway's Ghost
This ain't gonna sit very well with a large portion of regular FR contributors.
This ain't supposed to be a popularity contest!
Check out the Sobran link from '99 on The "General Welfare" in reply 97.
58 posted on 11/05/2003 9:50:59 AM PST by philman_36
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To: philman_36
Huh phil, you left this line out of the lyrics, from your reply #56.

"he never listens to them, because he knows that they are the fools"

And the line you omitted is at the end of the song. Whew dude, you think that you are a demo or something, that a liberal media on FR is going to protect from your obvious omission.

59 posted on 11/05/2003 9:52:57 AM PST by Dane
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To: Dane
...but your comrades...
...normal every day demo ad hominem rhteoric...

Et tu, Dane?
So I'm a Communist?
60 posted on 11/05/2003 9:53:06 AM PST by philman_36
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To: Beelzebubba
Here's how I think of it: The Commerce Clause was written to PREVENT governmental impediments to free commerce (e.g. state tarrifs). Now it is being used as the prime enablement of governmental impediments to commerce, precisely contrary to the original intent of protecting freedom of commerce.

The vast majority of the Civil Rights Laws prohibiting discrimination in housing, restaurants, and places of public accommodation and other businesses open to the public is based upon the Commerce Clause. If not the Commerce Clause, then what would be the constitutional basis for the civil rights laws as applied to individuals?

61 posted on 11/05/2003 9:57:04 AM PST by Labyrinthos
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To: Dane
And the line you omitted is at the end of the song.
The link omitted it, not I.
Whew dude, you think that you are a demo or something, that a liberal media on FR is going to protect from your obvious omission.
My you're really reaching today! First a "comrade, now a "demo"...
Here ya go...a link with your precious "last verse". I still don't see how the fool wins in the end.
62 posted on 11/05/2003 9:57:41 AM PST by philman_36
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To: Beelzebubba
Here's how I think of it: The Commerce Clause was written to PREVENT governmental impediments to free commerce (e.g. state tarrifs).

Now it is being used as the prime enablement of governmental impediments to commerce, precisely contrary to the original intent of protecting freedom of commerce.

I hear what you're saying, but the language of the Constitution doesn't manifest that narrow a purposee:

"To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

"Regulate" seems more broad than "facilitate."

Is it okay for a court to depart from the language used if the court believes that the "original intent" warrants the departure? Who should they consider when trying to determine the "original intent" of a provision? The guy who drafted it? The members of the Constitutiional Convention, or just the ones who voted in favor of the Constitution? Should we also consider the views of the members of the State ratifying conventions, and, if so, which ones? How can a court pick and choose among varying "original intents"?

These are some of the problems that a court faces when we ask them to actively intervene to limit the power of our elected Congress. ;-)

63 posted on 11/05/2003 9:59:19 AM PST by Scenic Sounds (Me caigo a mis rodillas y hablo a las estrellas de plata. "¿Qué misterios usted está encubriendo?")
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To: Dane
"he never listens to them, because he knows that they are the fools"
Oops, here you go...He never listens to them he knows that they're the fools
they don't like him

And the line that you omitted is at the very end of the song. Whew dude, you think that you are a demo or something, that a liberal media on FR is going to protect from your obvious omission.

64 posted on 11/05/2003 10:02:19 AM PST by philman_36
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To: philman_36
Here ya go...a link with your precious "last verse". I still don't see how the fool wins in the end

Uh maybe, the ones who knee jerkingly throw out calling someone a fool, are the fools themselves.

I know that is a hard concept for you to grasp, but I wasn't the one who started out with the ad hominems.

My posts started out with my opinions about the political positions of Libertarians.

Oh that's right my opinions automatically sucked to you, nevermind. You and Hillary come from the same mindset, IMO. Elitism run amuck.

65 posted on 11/05/2003 10:03:24 AM PST by Dane
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To: Dane
Uh maybe, the ones who knee jerkingly throw out calling someone a fool, are the fools themselves.
Uh maybe, the ones who knee jerkingly throw out calling someone Polythene Pam, are Polythene Pam themselves.
66 posted on 11/05/2003 10:08:00 AM PST by philman_36
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To: Dane
Good morning jack booted thug. Isn't it an excellent day
67 posted on 11/05/2003 10:08:54 AM PST by CWOJackson
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To: Dane
Et tu, Dane?
So I'm a Communist?

And he never gives an answer .....

68 posted on 11/05/2003 10:11:06 AM PST by philman_36
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To: philman_36
Uh maybe, the ones who knee jerkingly throw out calling someone Polythene Pam, are Polythene Pam themselves

Uh, I didn't knee jerkingly call you Polythene Pam in my reply #44. I asked a question since you quoted the lyrics from "Mean Mister Mustard" in your reply #43.

And any Beatle afficinado knows that Mean Mister Mustard and Polythene Pam were siblings.

69 posted on 11/05/2003 10:14:42 AM PST by Dane
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To: Dane
Dane my boy, the only way to counter some of ~your~ rhetoric is to make the observation that you are quite irrational.

You claim that is ad hominem? -- Yes, it is.. It's also a tough world for the logically challenged .
70 posted on 11/05/2003 10:17:17 AM PST by tpaine (I'm trying to be 'Mr Nice Guy', but Arnie won, & our republic, as usual, will lose.)
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To: CWOJackson; philman_36
Good morning jack booted thug. Isn't it an excellent day

Top of the morning to you also CWO, a fellow "JBT", on the west coast.

Yes it is an always excellent day when a "persecuted and so humble Libertarian" is found caught using omissions and acting like his/her cousin, a liberal democrat.

71 posted on 11/05/2003 10:19:37 AM PST by Dane
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To: Labyrinthos
what would be the constitutional basis for the civil rights laws as applied to individuals?
-laby-




The 14th amendment.

Aren't you a lawyer?
72 posted on 11/05/2003 10:21:37 AM PST by tpaine (I'm trying to be 'Mr Nice Guy', but Arnie won, & our republic, as usual, will lose.)
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To: Dane; philman_36
Are you sure philman is a member of the LP?
73 posted on 11/05/2003 10:23:01 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: Dane; CWOJackson
Yes it is an always excellent day when a "persecuted and so humble Libertarian" is found caught using omissions and acting like his/her cousin, a liberal democrat.
Quit talking about yoursellf so Dane. they don't like him Et tu, Dane?
And since when are you a Libertarian, CWOJackson? You and I were the only ones you addressed. I know, and Dane knows, that I'm not a Libertarian, so when were you turned?
74 posted on 11/05/2003 10:25:51 AM PST by philman_36
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To: jmc813
Are you sure philman is a member of the LP?

Sheesh Jeff, like I said to you before on this thread, stop trying to dig yourself a deeper hole. Phil was caught omitting something pertinent to the conversation, basically using the same the behavior as the liberal democrats, IMO.

75 posted on 11/05/2003 10:27:03 AM PST by Dane
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To: jmc813; Dane
Are you sure philman is a member of the LP?
He knows I'm not as I've told him repeatedly that I'm not a member of any "Party".
Typical Dane tactics, smear by association.
76 posted on 11/05/2003 10:27:48 AM PST by philman_36
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To: philman_36
Me?

I woke up one morning and it just struck me, I had to join the crusade to end the unConstitutional WOD! It's curious. I don't use dope and wouldn't use dope even if it were legal. I don't encourage people to use dope and never would even if it were legal. But I have this overwhelming need to fight a crusade to make dope legal.

Another victim of Spontaneous Constitutional Crusade Syndrome...yet another victim of SCC.

Down with the man!

77 posted on 11/05/2003 10:29:30 AM PST by CWOJackson
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To: Dane
Phil was caught omitting something pertinent to the conversation, basically using the same the behavior as the liberal democrats, IMO.

But you're calling him a Libertarian when he is not a member of the LP. Do you consider me a Libertarian even though I am a card-carrying member of my county GOP?

78 posted on 11/05/2003 10:29:47 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: Dane; jmc813
Phil was caught omitting something pertinent to the conversation, basically using the same the behavior as the liberal democrats, IMO.
Dane too was caught omitting something pertinent to the conversation, basically using the same behavior as the liberal democrats.
What are you, Dane, by your own standards?
79 posted on 11/05/2003 10:30:08 AM PST by philman_36
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To: CWOJackson; Dane
I woke up one morning and it just struck me, I had to join the crusade to end the unConstitutional WOD!
You need to inform Dane of your conversion.
80 posted on 11/05/2003 10:31:22 AM PST by philman_36
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To: tpaine
The 14th amendment. Aren't you a lawyer?

Yes I am. The 14th Amendment applies to state action in that it prohibits a state and its political subdivisions from discriminating based upon race, national origin, religion etc. and that's the basis for 42 USCS 1981 et seq. I'm talking about that part of the Civil Rights Act that prohibits me from dicriminating in the operation of my private business, the sale/rental of private housing, the service of food in a private restaurant, and the letting of rooms in a private inn or other place of accommodation.

81 posted on 11/05/2003 10:31:37 AM PST by Labyrinthos
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To: philman_36
Typical Dane tactics, smear by association

Uh I didn't smear anybody.

You smeared yourself by leaving out the last verse of the song "Fool on the Hill" in your reply #56.

This whole exchange is interesting, because it shows that those who take up the torch of the Libertarian cause, are bereft of the concept of humility, IMO.

82 posted on 11/05/2003 10:32:01 AM PST by Dane
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To: CWOJackson
I woke up one morning and it just struck me, I had to join the crusade to end the unConstitutional WOD! It's curious. I don't use dope and wouldn't use dope even if it were legal. I don't encourage people to use dope and never would even if it were legal. But I have this overwhelming need to fight a crusade to make dope legal.

Have you straightened yourself out on the Second Amendment as well?

83 posted on 11/05/2003 10:32:17 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: Labyrinthos
The vast majority of the Civil Rights Laws prohibiting discrimination in housing, restaurants, and places of public accommodation and other businesses open to the public is based upon the Commerce Clause. If not the Commerce Clause, then what would be the constitutional basis for the civil rights laws as applied to individuals?


Let the states decide. Even black conservaitve commentators tend to acknowledge that racism is its own punishment (because one forgoes qualified applicants or customers) and that modern society will effectively end any business that is racist.

Or pick another part of the Constitution to torture. Race discrimination is not an interstate commerce issue, it is an equal protection issue.
84 posted on 11/05/2003 10:32:43 AM PST by Atlas Sneezed
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To: jmc813
I wasn't unstraight on the second ammendment. I still don't have any need for an anti-aircraft gun and I still have no desire to bayonet anything.

Perhaps when the man starts kicking in my door in their illegal no-knock raids I'll change my mind.

But I don't want to get distracted from my crusade to assist the meth lab running freedom fighters!

85 posted on 11/05/2003 10:35:25 AM PST by CWOJackson
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To: Dane
Death to the pigs!

Die Honkey!

Burn baby burn!

Hell no we won't go!

Give me liberty and give me meth!

86 posted on 11/05/2003 10:37:57 AM PST by CWOJackson
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To: Beelzebubba
Let the states decide. Even black conservaitve commentators tend to acknowledge that racism is its own punishment (because one forgoes qualified applicants or customers) and that modern society will effectively end any business that is racist. Or pick another part of the Constitution to torture. Race discrimination is not an interstate commerce issue, it is an equal protection issue.

I'm not disagreeing with you. I was just pointing out how the commerce clause is used to justify lawsthat have nothing to do directly with interstate commerce. BTW, the equal protection clause does not provide a constitutional predicate for the civil rights act as enforced against the private sector, because the 14th Amendment only prohibits the states and their political subdivisions from depriving a person of equal protection of the laws.

87 posted on 11/05/2003 10:38:48 AM PST by Labyrinthos
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To: Dane
Uh I didn't smear anybody.
You have no idea what smear by association really is, do you?
You smeared yourself by leaving out the last verse of the song "Fool on the Hill" in your reply #56.
Et tu, Dane?
You smeared yourself by leaving out the very last verse of the song "Fool on the Hill" in your reply #59.
You also have no idea of the concept of "baiting someone" either.
Wait a sec...didn't I learn that from you? I stand corrected.
88 posted on 11/05/2003 10:38:50 AM PST by philman_36
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To: CWOJackson
So the 2nd Amendment enumerates the right to keep and bear arms that CWOJackson has a desire to own. Gotcha.
89 posted on 11/05/2003 10:40:19 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: philman_36
You also have no idea of the concept of "baiting someone" either. Wait a sec...didn't I learn that from you? I stand corrected

IOW, you are now a victim of that mean old Dane.

LOL! Whew dude, keep on posting, you are posting Hillary's case with each and every one of your posts, IMO.

90 posted on 11/05/2003 10:41:50 AM PST by Dane
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To: jmc813
Not necessarily. So far my rights to purchase any firearm I desire has not been infringed.
91 posted on 11/05/2003 10:42:08 AM PST by CWOJackson
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To: jmc813; Dane
Do you consider me a Libertarian even though I am a card-carrying member of my county GOP?

And he never gives an answer .....

92 posted on 11/05/2003 10:42:16 AM PST by philman_36
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To: Dane
IOW, you are now a victim of that mean old Dane.
I'm not a victim of anyone, especially you. You play that role so much better than I, as this thread shows.
Whew dude, keep on posting, you are posting Hillary's case with each and every one of your posts, IMO.
You're such a victim, just like her.
93 posted on 11/05/2003 10:44:19 AM PST by philman_36
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To: philman_36; jmc813
Do you consider me a Libertarian even though I am a card-carrying member of my county GOP?

And he(Dane) never gives an answer ....

In all honesty, I believe that Jeff(jmc813) is a bit politically confused. He spouts off George Soros rhetoric, and yet says he's a Republican.

For the time being I will give Jeff the benefit of the doubt.

94 posted on 11/05/2003 10:45:14 AM PST by Dane
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To: philman_36
I noticed. I think the logic is that we agree with the LP on the WOD issue, so therefore we are Libertarians. Maybe we should start calling those guys Democrats since they agree with the DNC on the Assault Weapons Ban.
95 posted on 11/05/2003 10:45:32 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: Dane
...but I wasn't the one who started out with the ad hominems.
You're such a victim, just like her. Know what I mean?
96 posted on 11/05/2003 10:46:23 AM PST by philman_36
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To: Dane
I have the EXACT same opinion on the drug war as the owner of this site. End the Federal WOD and let the states decide for themselves what their drug policy is. With the exception of pot, I am wary of legalizing hard drugs. Is Jim politically confused?
97 posted on 11/05/2003 10:47:32 AM PST by jmc813 (Michael Schiavo is a bigger scumbag than Bill Clinton)
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To: jmc813
Maybe we should start calling those guys Democrats since they agree with the DNC on the Assault Weapons Ban.
Hmmmmm...you might be onto something there...
Perhaps Democrats is too soft of a term though.
98 posted on 11/05/2003 10:47:54 AM PST by philman_36
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To: philman_36
I'm not a victim of anyone, especially you. You play that role so much better than I, as this thread shows

LOL! LOL! It seems that you all who take up the Libertarian torch are not only bereft of humilty, but bereft of short term memory(I.E your reply #88 of this thread).

99 posted on 11/05/2003 10:50:02 AM PST by Dane
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To: Dane; jmc813
You can't even give a straight answer. How pathetic!

He spouts off George Soros rhetoric, and yet says he's a Republican.
You spout off Socialist rhetoric yourself and yet you say you're a Republican. What gives?

100 posted on 11/05/2003 10:50:02 AM PST by philman_36
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