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Is Any Part of the Constitution Unconstitutional?
American Spectator ^ | December 2010 - January 2011 issue | Andrew P. Napolitano

Posted on 01/04/2011 4:11:17 PM PST by neverdem

The short answer to the question above is: Yes.

Here is the back story. The elections this past November were truly historic for those who love freedom. The Tea Party, a grassroots libertarian insurgency cobbled together from disaffected Republicans and libertarians, managed not only to strike fear into the Establishment, but actually to throw off the Establishment's hand-picked candidates in favor of those supporting limited government. The Republicans were able to ride this wave, taking control of the House and achieving a filibuster-positive number in the Senate. What many voters may not have known, though, is that if the Constitution we cherish were still in its original form with respect to the Senate, they would never have been able to vote for Rand Paul or Marco Rubio, and that would have been a good thing.

The 17th Amendment to the Constitution, which provides for the direct popular election of senators, was enacted in 1913, at the height of the Progressive Era. Originally, the Constitution had provided for state legislatures to appoint U.S. senators, a realistic reflection that the Constitution was a compact of sovereign states. It meant that senators would not be focused on public campaigning; they could do what they were elected to do. They would represent the interests of the states that sent them -- not the people in the states, but the states as sovereign entities.

The Founding Fathers' original intent in providing for indirect election of senators was to place a strong check on the power of the federal government. At the federal table, the people were to be represented by the House of Representatives, the nation as a nation was to be represented by the president, and the states as sovereign entities were to be represented by the senators whom the states sent to Washington...

(Excerpt) Read more at spectator.org ...


TOPICS: Constitution/Conservatism; Culture/Society; Editorial; Politics/Elections
KEYWORDS: 17thamendment; progressivism
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1 posted on 01/04/2011 4:11:19 PM PST by neverdem
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To: neverdem

Several years ago I predicted to myself that the Constitution will one day soon be ruled un-Constitutional. Sounds absurd, right? Just watch it happen.


2 posted on 01/04/2011 4:13:42 PM PST by Jack Hydrazine (It's the end of the world as we know it and I feel fine!)
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To: Jack Hydrazine

If the USSC said there is a Constitutional separation of church and state is the Declaration of Independence un-Constitutional ?


3 posted on 01/04/2011 4:16:24 PM PST by Para-Ord.45
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To: neverdem

This has been something that’s irritated me for a while now. There’s no need for a bicameral federal legislature if they’re representing the same interests. Most states don’t need a bicameral legislature either but all Nebraska have them.


4 posted on 01/04/2011 4:18:31 PM PST by americanophile
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To: Para-Ord.45

...has there been a constitution when it was adopted, under today’s absurd interpretation, probably so.


5 posted on 01/04/2011 4:20:55 PM PST by americanophile
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To: neverdem

Judge Nepolitano jumps the shark with this one by arguing that amending the constitution via a device defined in the constitution is unconstitutional.


6 posted on 01/04/2011 4:21:33 PM PST by SecondAmendment (Restoring our Republic at 9.8357x10^8 FPS)
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To: neverdem

If the 17th were repealed, enabling the Senate to again function as it was intended, there would be no need for gauze and dressing fixes like the “Repeal Amendment”.


7 posted on 01/04/2011 4:22:30 PM PST by John Valentine
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To: americanophile

True, thats why I think we should go back to state legislatures electing Senators to represent the state.


8 posted on 01/04/2011 4:23:17 PM PST by Raider Sam (They're on our left, right, front, and back. They aint gettin away this time!)
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To: neverdem; Liz; AT7Saluki; writer33
"Whether it is constitutional or not is going to be whether the Supreme Court says it is."

Waxman, Frank: To Hell with the Constitution!

9 posted on 01/04/2011 4:23:43 PM PST by Libloather (Teapublican, PROUD birther, mobster, pro-lifer, anti-warmer, enemy of the state, extremist....)
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To: Jack Hydrazine

Jack,

Ya really oughta quit drinkun that stuff. It’s starting to show in yer logic.


10 posted on 01/04/2011 4:24:26 PM PST by An Old Man
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To: americanophile

The fact that each state has an equal number of senators still gives an advantage to smaller states.


11 posted on 01/04/2011 4:24:59 PM PST by Tailgunner Joe
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To: neverdem
Non Sequitur logic!
12 posted on 01/04/2011 4:25:29 PM PST by Mayr Fortuna
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To: americanophile
There’s no need for a bicameral federal legislature if they’re representing the same interests.

The main point of a bicameral legislature is to make it more difficult to make laws thereby protecting liberty, IMHO.

13 posted on 01/04/2011 4:25:45 PM PST by neverdem (Xin loi minh oi)
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To: Libloather
Patrica Schroder a representative form Colorado once said that the Constitution was an old document written by slave holders and should be done away with.

The Constitution is so well written that the liberals can't contort their ideals into it.

14 posted on 01/04/2011 4:27:18 PM PST by mountainlion (concerned conservative.)
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To: Libloather
“Whether it is constitutional or not is going to be whether the Supreme Court says it is.”
Waxman, Frank: To Hell with the Constitution!

My understanding of the Constitution is it has 44 Biblical principles in so Waxman you are about to melt.

15 posted on 01/04/2011 4:29:03 PM PST by mountainlion (concerned conservative.)
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To: neverdem

I think that’s a valid concern, and that’s usually the reason given, but it also makes it impossible to reform anything.


16 posted on 01/04/2011 4:29:56 PM PST by americanophile
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To: Raider Sam

Sounds like a good idea to me.


17 posted on 01/04/2011 4:31:16 PM PST by americanophile
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To: SecondAmendment

The Constitution only seems to REQUIRE direct election of Senators. In reality ways around that interpretation were discovered. For example, the Tenth Amendment clearly established the sovereignty of the states so they went ahead and did it any way they wanted and referenda and direct election were in place in a number of states well before the amendment changing the way they would be elected.


18 posted on 01/04/2011 4:33:28 PM PST by muawiyah (Hey,)
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To: americanophile

Another aspect of that is that the congress is on the federal payroll.

Take them off the federal payroll and put them on their own states’ payroll. They have truly forgotten for whom they work and this would help remind them.


19 posted on 01/04/2011 4:34:19 PM PST by Eagle Eye (A blind clock finds a nut at least twice a day.)
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To: Para-Ord.45
If the USSC said there is a Constitutional separation of church and state is the Declaration of Independence un-Constitutional ?

Well, this part isn't P.C., I'm surprised the liberals haven't tried to have it stricken yet:

He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare, is undistinguished destruction of all ages, sexes and conditions.

20 posted on 01/04/2011 4:36:43 PM PST by Graybeard58
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To: Tailgunner Joe

The small states deserve equal representation in the Senate, but not disproportinate power, which is what they now enjoy. If each Senator is representing their state as a soverign, then the system makes sense. In representing the people of their states, based on popular election, the system equates, for instance, Wyoming’s 500,000 people with California’s 36 million, which is a grossly unfair system of representation (irrespective of what we think of the values and policies of the people in those states).


21 posted on 01/04/2011 4:39:43 PM PST by americanophile
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To: SecondAmendment
I just reread the entire Constitution, including the 17th Amendment, and there's no mention in there of "recall" however, there's a 6 year term and an election cycle.

If you people want "recall" you'll need an amendment for it. Most likely you can't get the Eastern States to adopt it.

22 posted on 01/04/2011 4:40:06 PM PST by muawiyah (Hey,)
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To: Eagle Eye

Yes!


23 posted on 01/04/2011 4:40:11 PM PST by americanophile
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To: SecondAmendment
SecondAmendment wrote:
Judge Nepolitano jumps the shark with this one by arguing that amending the constitution via a device defined in the constitution is unconstitutional.
Actually, what he's arguing (somewhat correctly IMO) is that the device defined in the constitution wasn't followed. The one thing that Article V of the constitution says can't be amended is equal representation for the States in the Senate.

Any other amendment is OK, but you can't change the Senate using the article V amendment process.

The problem with this is that the courts rule that the States are still represented, it's just the method to choose the Senators that changed.

24 posted on 01/04/2011 4:40:42 PM PST by cc2k
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To: Eagle Eye
The Founders started out with the cheapest payroll they could figure out ~ and by the time Daniel Webster was in Congress he and his fellow members made most of their money taking bribes for votes on legislation.

I assure you that once your typical Congresscritter was no longer subject to the sort of scrutiny being on the federal payroll brings he or she would be back working for the Mob ~ just like before.

25 posted on 01/04/2011 4:43:15 PM PST by muawiyah (Hey,)
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To: Eagle Eye
The Founders started out with the cheapest payroll they could figure out ~ and by the time Daniel Webster was in Congress he and his fellow members made most of their money taking bribes for votes on legislation.

I assure you that once your typical Congresscritter was no longer subject to the sort of scrutiny being on the federal payroll brings he or she would be back working for the Mob ~ just like before.

26 posted on 01/04/2011 4:43:37 PM PST by muawiyah (Hey,)
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To: SecondAmendment
“Judge Nepolitano jumps the shark with this one by arguing that amending the constitution via a device defined in the constitution is unconstitutional.”

I agree. Direct elections of Senators became Constitutional when our Republic decided it was a good enough idea to amend our Constitution over, and utilized the provided mechanism.

Election of Senators via State Legislatures will be Constitutional again when our Republic decides that it is a good enough idea to AGAIN utilize the provided mechanism.

Arguing that using the Constitution to change the Constitution is Unconstitutional is ski-boating in a leather jacket and approaching the ramp.

27 posted on 01/04/2011 4:48:35 PM PST by allmendream (Tea Party did not send the GOP to D.C. to negotiate the terms of our surrender to socialism.)
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To: allmendream
The primary reason for forcing general election on all Senators was the idea that this would eliminate the problem of CORRUPT SENATORS.

FAIL!

28 posted on 01/04/2011 4:53:06 PM PST by muawiyah (Hey,)
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To: neverdem

Look people, as much as some folks may not like the 17th amendment (and I’m not a big fan myself), the fact of the matter is that amending the Constitution MAKES something constitutional - period. That’s why the Constitution was made so hard to amend, so that it couldn’t be done flippantly and spuriously (very often).


29 posted on 01/04/2011 4:54:31 PM PST by Titus Quinctius Cincinnatus (When evolution is outlawed, only outlaws will believe in abject nonsense.)
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To: neverdem

The Wilson administration, as I remember, felt the progressive movement was being kept from advancement by “bought and paid for” Senators. They claimed railroads and other large interests bought state legislative votes to get their man installed.

There were some instances where that may have been the case. The cure however is worse.


30 posted on 01/04/2011 4:59:17 PM PST by KC Burke
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To: muawiyah

Corruption finds power like water flows downhill.

Legislation cant change than, Constitutional Amendments don’t phase it. It would be nice if our Legislature were not full time fund raisers to meet the needs of our “I watch TV commercial to decide the political future of our nation” public - but that at least is kind of above the board corruption.

You say you are for corn ethanol subsidies, they pay you lots of money via “donations for your campaign”, you vote for billions of dollars to burn up nearly half our corn and everybody knows you are the Senator from Archers Daniels Midland, and might suspect you have Presidential ambitions.

This is the fate of our modern Republic.

But it is still the best damn system going. Not saying much, but we can at least say that! :)


31 posted on 01/04/2011 5:00:50 PM PST by allmendream (Tea Party did not send the GOP to D.C. to negotiate the terms of our surrender to socialism.)
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To: Titus Quinctius Cincinnatus

Spurious means false, not frequent.

But yes, I agree with your point 100%. Amending the Constitution makes it constitutional. And it was made hard to amend so that it would not be done flippantly or frequently, with time for deliberation and to find out spurious reasoning (hopefully) and certainly not for light and transient causes.


32 posted on 01/04/2011 5:05:28 PM PST by allmendream (Tea Party did not send the GOP to D.C. to negotiate the terms of our surrender to socialism.)
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To: neverdem
It meant that senators would not be focused on public campaigning; they could do what they were elected appointed to do.
33 posted on 01/04/2011 5:10:47 PM PST by bill1952 (Choice is an illusion created between those with power - and those without)
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To: Eagle Eye

Plus they would be subject to recall by the state. :)


34 posted on 01/04/2011 5:12:40 PM PST by bill1952 (Choice is an illusion created between those with power - and those without)
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To: allmendream
Spurious means false, not frequent.

Yes, and I meant it that way. One of the protections afforded by the rigourous amendment process was against the document being easily changed under false pretense or because people were "snookered" into doing so.

35 posted on 01/04/2011 5:15:56 PM PST by Titus Quinctius Cincinnatus (When evolution is outlawed, only outlaws will believe in abject nonsense.)
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To: Titus Quinctius Cincinnatus
If you meant it as false then the parenthetical “very often” was extraneous, and convention would be that such was your providing of the definition of a ‘difficult’ word.

But no matter.

36 posted on 01/04/2011 5:20:53 PM PST by allmendream (Tea Party did not send the GOP to D.C. to negotiate the terms of our surrender to socialism.)
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To: bill1952
States with recall continue to have corrupt politicians ~ California in particular.

I think you would prefer my method ~ one term, one time, and then you are taken out and executed.

Whatever you can steal in the meantime is yours to keep.

There'd be no lack of highly capable candidates for public office.

37 posted on 01/04/2011 5:22:20 PM PST by muawiyah (Hey,)
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To: neverdem
The direct election of US Senators may be opposed to the original intent of the position of Senate as stated in the Constitution, however, Article 5 doesn't requiring a weighing against original intent. If it did, there would not be a need for Article 5 in the first place as there would be no need of an amending process at all.

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

So, a Constitutional amendment, no matter how much we disagree with it or it may oppose the original intent of another clause, is Constitutional unless it violates the equal protection to the States clause. IE, it may not be right, but it is technically Constitutional until in as such time, the citizens or government follow the Constitutional process to amend it out of there.

38 posted on 01/04/2011 5:35:27 PM PST by mnehring
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To: neverdem
Very good discussion at the end of the posted article. I particularly liked what this poster had to say:

Ramon| 1.4.11 @ 8:50AM Repealing the 17th Amendment would be nice. However, given that it has become a part of our political tradition I don't think that will happen. Virginia has proposed an amendment which would allow a vote by 2/3 of the state legislatures to nullify any federal law or ruling by the Supremes. This would hobble the Federal Colossus nicely. It certainly would end the "flyover" status of most states. I am certain if this amendment is enacted, Obamacare (and many other abominations) will vanish like fog before a strong breeze. Amend to defend!

39 posted on 01/04/2011 5:35:35 PM PST by samtheman
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To: Jack Hydrazine
Several years ago I predicted to myself that the Constitution will one day soon be ruled un-Constitutional

Why bother? It's irrelevant.

America -- a great idea, didn't last.

40 posted on 01/04/2011 5:39:38 PM PST by Clint Williams (America -- a great idea, didn't last. The only reasonable response to jihad is Crusade.)
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To: allmendream
If you meant it as false then the parenthetical “very often” was extraneous

The parenthetical was intended to convey the fact that even though the process was designed to prevent flippant and spurious amendments, nevertheless it happens sometimes, just not "very often."

41 posted on 01/04/2011 5:56:25 PM PST by Titus Quinctius Cincinnatus (When evolution is outlawed, only outlaws will believe in abject nonsense.)
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To: allmendream
". . . and it was made hard to amend . . . . "

The most significant provision of that amazing Constitution for self-government was that which provided the only valid means for its own amendment in Article V--the Founders' requirement that any amendment would be subject to the will of "its only KEEPERS,"(Justice Story)--"We, the People."

See Dr. Walter Berns' essay entitled, "Do We Have a Living Constitution?" edited and published in the book, "Our Ageless Constitution" (Stedman & Lewis). From that essay come the following excerpts:

"Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon them collectively, as well as individually; and no presumption or even knowledge of their sentiments, can warrant their representatives [the executive, judiciary, or legislature]; in a departure from it prior to such an act." - Alexander Hamilton

Madison spoke out forcefully against frequent appeals to the people for change. Marshall had this Madisonian passage in mind when, in his opinion for the Court in Marbury, he wrote:


42 posted on 01/04/2011 6:06:54 PM PST by loveliberty2
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To: loveliberty2

Thanks for providing the original language to the thoughts we are attempting in our glib modern tongues to convey.

The founders sure could write!


43 posted on 01/04/2011 6:09:48 PM PST by allmendream (Tea Party did not send the GOP to D.C. to negotiate the terms of our surrender to socialism.)
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To: americanophile

I have to say that I disagree. The small states do in fact deserve power out of proportion to the size of their populations. Otherwise New York and California will just decide everything. The small states would have had no reason to enter the Union and ratify the Constitution if they had not been granted such power.


44 posted on 01/04/2011 7:20:57 PM PST by Tailgunner Joe
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To: neverdem
"The Tea Party, a grassroots libertarian insurgency ..."

Libertarian? Hey Andrew, No Labels!!! No, not that bunch ...

45 posted on 01/04/2011 7:40:32 PM PST by NonValueAdded (Palin 2012: don't retreat, just reload)
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To: neverdem

“Before 1913, if a senator were to assault state sovereignty, the people of that state were able to exert influence on the state legislature, which is held accountable every two years by a popular vote. The state legislature would be able to recall a senator immediately, thus sending a powerful message that those in the highest seats of federal power could be instantly dethroned.”

Judge Napolitano is surprisingly poorly informed. Never in the history of the USA has any member of the Senate or House of Representatives been recalled, and it is very doubtful that the recall statutes that currently exist would be upheld if they were ever utilized.

On the whole our state legislatures have been quite corrupt. There were nine cases brought before the US Senate alleging that Senate election by state legislators was due to bribery. Election deadlocks were common, and at one point Delaware had no senators for two years. By 1910 almost 2/3 of the states had called for a constitutional convention to propose direct election of senators, and Congress finally acted to propose direct election.

Repeal of the 17th amendment is an idea whose time will never come. What is needed are mechanisms for the states and people to directly overrule bad acts of Congress. If Switzerland could design such mechanisms, why can’t we?


46 posted on 01/04/2011 7:48:35 PM PST by devere
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To: SecondAmendment

>>>Judge Nepolitano jumps the shark with this one by arguing that amending the constitution via a device defined in the constitution is unconstitutional.<<<

Agreed. I think that he intended to point out that the direct election of senators subverts the original intent of the Constitution, which is true, but the change was done through Constitutional means. About jumping the shark, though, I’d have to just take a deep breath and understand that all of us occasionally write or say something which didn’t come out the way we intended. This reminds me of a poster I had in my office when I was running this small company in Oregon. It showed this guy screaming with his hands on his head, terrified, with the caption, “Oh, sh*t! You did it exactly the way I told you to do it.”

The judge had a bad night. It happens.


47 posted on 01/04/2011 8:19:55 PM PST by redpoll
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To: Tailgunner Joe

No, CA & NY would continue to enjoy their margins in the House, but wouldn’t have any more or less power than a Delaware or Rhode Island in the Senate.


48 posted on 01/04/2011 8:49:01 PM PST by americanophile
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To: Jack Hydrazine

bflr


49 posted on 01/04/2011 11:23:46 PM PST by Kevmo (Turning the Party over to the so-called moderates wouldn't make any sense at all. ~Ronald Reagan)
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To: wardaddy; Joe Brower; Cannoneer No. 4; Criminal Number 18F; Dan from Michigan; Eaker; Jeff Head; ...
Why Climate Change Reminds Me of a T.S. Eliot Poem

Congress Must Lead, Not the Courts - Republicans cannot punt hard decisions to the judges. Upton, EPA & the courts

Obamacare Ends Construction of Doctor-Owned Hospitals

Anti-gun Advocates In Senate Seek Rules Changes

Some noteworthy articles about politics, foreign or military affairs, IMHO, FReepmail me if you want on or off my list.

50 posted on 01/04/2011 11:48:27 PM PST by neverdem (Xin loi minh oi)
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