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Can Obama Conquer the Supreme Court
Townhall.com ^ | April 8, 2012 | Austin Hill

Posted on 04/08/2012 8:08:08 AM PDT by Kaslin

Quick – can you guess who I’m describing here?

He campaigned against financial mismanagement, and the “harsh realities” of global capitalism. He pledged during his campaign to end corruption in both the government and the private sector.

After being elected President, he claimed that he had “inherited” the worst economic situation in recent history and then went about consolidating his power. Once privately-owned enterprises were “restructured” into government owned entities, some even organized into workers’ cooperatives.

Unemployment remained painfully high, even as the much-celebrated “reform” measures were being implemented. As private sector workers suffered with worsening economic conditions, government employees enjoyed the comforts of steady work and benefits while the President and other policy makers sought increasing control over the nation’s privately-owned wealth.

Does this seem like a description of the Obama Presidency?  Certainly this depicts, at least in part, what we’ve experienced in the U.S. since the earliest days of Barack Obama’s first presidential campaign.

But - believe it or not - this is actually a description of the ascendency of Hugo Chavez in Venezuela. In fact, you could call this a “textbook case.”  I’ve paraphrased a bit for the sake of column space, but this description of Chavez appears in “International Business: Competing In The Global Marketplace,” a text book currently used among M.B.A. students at many of America’s top graduate business schools.

Chavez became the democratically elected President of Venezuela in 1998, a decade before Barack Obama was elected to be our President. And the reason Chavez has been able to morph in to a dictator – he has successfully seized control over privately owned banks, tv stations, farms and gold holdings, to name a few items – and the reason he is still in power today, is because the first thing he did after taking office in 1999 was to substantively change his country’s constitution and re-arrange the nation’s judiciary.

The fact that one man could so quickly seize control of the entire country of Venezuela, probably speaks to some relative weaknesses in that nation’s constitution.  And the fact that no U.S. President – not even Barack Obama – has seized this type of control over America, speaks to the relative strengths of both our U.S. Constitution itself, and the separation of powers among our three branches of government that are stipulated by our Constitution.

With so much of our individual liberty resting on the foundation of the U.S. Constitution – and yet with most of human history having been littered with not-so-benevolent dictators like Chavez – we should both expect that powerful leaders will want to overreach in to our lives, and be vigilant to call fowl when they do. Unfortunately, it seems that most Americans are shocked by President Barack Obama’s contemptuous remarks about the Supreme Court last week, as the court review his signature “healthcare reform” law.  Worse still, it seems that very few Americans recognize the President’s behavior is problematic.

Of course, President Obama is not the first White House occupant to desire more power than the Constitution allows.  President Franklin Delano Roosevelt, angered when the Supreme Court overturned some of his “new deal” (read “big government”) programs that he believed were unquestionably necessary to save the country, famously began maligning the Justices of the Supreme Court, publicly labeling them the “9 Old Men.” And as a means of overcoming the “separation of powers” obstacle, he proposed to “reform” that old, antiquated Supreme Court system by adding up to six new justices – justices that he could select and appoint!

Of course, FDR didn’t get his way.  The Congress rejected his court reform legislative proposal, and the American people took a dim view of Roosevelt trying to circumvent the Constitution.

But that was the America of 1937.  Today, it’s not difficult to imagine that President Obama could curry the favor of millions of Americans, if he chose to campaign against the Justices who may vote to overturn his all-important “Obamacare” law.

Who would stand with Obama in this type of Constitution-bending effort?  Start with the entire AFL-CIO. Then add the entire “occupy” movement, and the burgeoning “99% Spring” uprising, and the prevailing powers of the Democrat Party.  Put them all together, and you’ve got a critical mass of Americans who neither care nor understand a wit about history, “limited government,” the U.S Constitution, or the Separation of Powers.  They want “stuff” – “free” healthcare, education, or whatever – and they want raw power in Washington to deliver that stuff, and to do so by whatever means.

“9 old men.”  That pejorative description wouldn’t apply with the makeup of today’s Supreme Court.  But we should all prepare for President Obama to take direct aim at, say, 5 or 6 “old” white men – men who are too strictly adhering to an old Constitution that was written by old white men – should the Supreme Court dare to think differently about the President’s healthcare reform law. And the President’s party won’t dare to question this tactic. But who will?


TOPICS: Editorial; Government
KEYWORDS: obamathreatensscotus; scotus; scotusobamacare

1 posted on 04/08/2012 8:08:13 AM PDT by Kaslin
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To: Kaslin
And the fact that no U.S. President – not even Barack Obama – has seized this type of control over America, speaks to the relative strengths of both our U.S. Constitution itself, and the separation of powers among our three branches of government that are stipulated by our Constitution.

Yeah, well, after he's re-elected, he'll have more flexibility to explore more options.

And, of course, he'll have those 450 million rounds of ammo at his disposal to help keep those options open.

2 posted on 04/08/2012 8:12:26 AM PDT by Texas Eagle (If it wasn't for double-standards, Liberals would have no standards at all -- Texas Eagle)
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To: Kaslin

FDR got them to come to heel.


3 posted on 04/08/2012 8:16:01 AM PDT by E. Pluribus Unum (Over half of U.S. murders are of black people, and 90% of them are committed by other black people.)
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To: Kaslin
...powerful leaders will want to overreach in to our lives, and be vigilant to call fowl when they do....

Duck...?

4 posted on 04/08/2012 8:16:33 AM PDT by freebilly
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To: Kaslin

It might turn out the other way around, if he tries.

Just saying.

He’s starting to get pretty obvious about things.


5 posted on 04/08/2012 8:17:45 AM PDT by Cringing Negativism Network ((Racism Fatigue) America is the least racist nation on Earth)
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To: Kaslin

speaks to the relative strengths of both our U.S. Constitution itself...
&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&

The Constitution is only as strong as the good will and fundamental honesty of the American people.

The 2008 Florida recount did it for me. It was then that I realized that Democrats were not people of good will or honesty. After this I could never again have a Democrat for a friend. They were either too evil or too stupid to be a friend.

And... At the beginning of the article I thought the author was describing Andrew Jackson.


6 posted on 04/08/2012 8:23:30 AM PDT by wintertime (Reforming a government K-12 school is like reforming an abortion center.)
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To: Cringing Negativism Network
He’s starting to get pretty obvious about things.

A couple members of the Lamestream Media have shown signs of waking from their self-imposed hypnotic trances and are beginning to ask the members of the Obama Admistration challenging questions. They haven't yet asked those questions of Dear Leader HIMSELF. Might expose them as racists....

7 posted on 04/08/2012 8:24:15 AM PDT by freebilly
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To: wintertime

I believe the Spirit of Free America is resurrecting.

Have a wonderful Easter all.


8 posted on 04/08/2012 8:27:35 AM PDT by ogen hal (First amendment or reeducation camp?)
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To: Kaslin

The only way anyone can ‘conquer’ the Supreme Court is to have at least 3/4 of the states ratify an amendment to the Consitution. Even then, the amendment can be misinterpreted ala the Commerce Clause.....


9 posted on 04/08/2012 8:29:36 AM PDT by Gaffer
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To: Kaslin
When our current dictator King Obama anything is possible. He has got 4 of most corrupt liberal Democrats on the bench now and the fifth is border line.
10 posted on 04/08/2012 8:29:36 AM PDT by Logical me
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To: Kaslin
"The Pope supreme court? How many divisions has he have they got?" - Joseph Stalin Barack Obama...
11 posted on 04/08/2012 8:30:33 AM PDT by null and void (Day 1174 of America's ObamaVacation from reality [Heroes aren't made, Frank, they're cornered...])
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To: Kaslin
When Obama a) starts to shred the Constitutution, b) starts to stir up mob trouble and cause over-entitled, non-contributive segments of the society and country to "jump the shark" and turn to the streets with raw emotion, c) ignores the will of the people, the consent of the governed, and most importantly, d) thumbs his nose at The Supreme Court, do NOT be surprised if he gets the "José Manuel Zelaya Rosales treatment." It has happened many times in our hemisphere by tinhorn dictators, why not at least once in the 250 years of the United States? I don't see any agitating reason why not, in view of history, and also where this man and his radical marxist advisors are attempting to take us, agains the Common Will.
12 posted on 04/08/2012 8:35:22 AM PDT by AmericanInTokyo (NO time for malaise/lethargy on FR! Fact is, FREEPERS UNITED CAN help stop Mitt's nomination effort)
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To: Texas Eagle

Well i have 3000 rnds.7.62x39 to help off-set Obamas 450 million rnds and i’m sure there’s more off-sets out there.


13 posted on 04/08/2012 8:36:14 AM PDT by heshtesh (I believe in Sarah Palin, the rest not so much.)
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To: wintertime
The 2008 Florida recount did it for me. It was then that I realized that Democrats were not people of good will or honesty.

It took you that long?

14 posted on 04/08/2012 8:37:59 AM PDT by Kaslin (Acronym for OBAMA: One Big Ass Mistake America)
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To: Kaslin
Sometimes the law defends plunder and participates in it. Thus the beneficiaries are spared the shame, danger, and scruple which their acts would otherwise involve. Sometimes the law places the whole apparatus of judges, police, prisons, and gendarmes at the service of the plunderers, and treats the victim — when he defends himself — as a criminal. - Bastiat "The Law"
15 posted on 04/08/2012 8:38:06 AM PDT by PGalt
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To: Texas Eagle
Just a little anecdote to shine a light on the differences between George W. Bush and Barach H. Obama which speaks to attitudes and what might be expected of this pretender.

A Marine told a friend of ours that he went to work out in the gym during Bush's presidency and found the President working out. The Pres. spoke and shook hands and they went back to working out.

During this Admin., same Marine went to work out, found the gym locked was told the Pres. was working out. While BHO was there, marines could not carry their weapons, the Pres. stayed in a special trailer set up for him and surrounded with SS guys--but the photo ops were great!

Difference in how Bush and Obama view the military.

Also reminds me of Panetta's recent Afghan visit where military had to put up their weapons before coming to hear him speak.

Boy do the Cmdr in Chf and the Sec. Def. love our troops and respect them--NOT! Also disrespect everything about our Constitution and traditions.

vaudine

16 posted on 04/08/2012 8:45:25 AM PDT by vaudine
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To: AmericanInTokyo
Zer0 and H0lder both tried to help Zelaya.

May the chickens... come home..... TO ROOST!

17 posted on 04/08/2012 8:50:59 AM PDT by Paladin2
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To: heshtesh

Notice that the Yugo Mil-surplus M-67 is just about disappeared? I’ll plink with the Wolf, but am saving the good stuff for when it matters.


18 posted on 04/08/2012 8:58:08 AM PDT by pingman (Durn tootin'; I like Glock shootin'!)
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To: Kaslin
And the fact that no U.S. President – not even Barack Obama – has seized this type of control over America, speaks to the relative strengths of both our U.S. Constitution itself, and the separation of powers among our three branches of government that are stipulated by our Constitution.

Credit must also be given to the strength of our military, which without firing a shot keeps in check the dreams of dictator wannabes like Barky. He's working to destroy our military so he can proceed but he doesn't have enough time.

19 posted on 04/08/2012 9:03:22 AM PDT by Reeses
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To: Reeses

Another reason why Obama is decidedly not the same, as some RINO he’s at times compared against.


20 posted on 04/08/2012 9:05:43 AM PDT by Cringing Negativism Network ((Racism Fatigue) America is the least racist nation on Earth)
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To: Texas Eagle
Might get flamed here but...

DHS ordering 450,000,000 rounds of handgun ammo over a five year contract does not seem out of line.

216,000 employees amounts to about 400 rounds per year, per employee. I would hope they would use up more than that on the practice range. I do.

I don't think the department should exist at all, but in light of the fact they do, these numbers don't really cause me any alarm as they do not seem unreasonable.

21 posted on 04/08/2012 9:20:32 AM PDT by onceone
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To: Kaslin; SunkenCiv; AuH2ORepublican; justiceseeker93; ExTexasRedhead; JulieRNR21

Obama would not have done this if he thought that Obamacare was going to be upheld. The good news is that he seems to be backing down.

A more important point is that whoever is elected President in 2012 will be making Supreme Court appointments. Four of the justices will be over 70 y/o and two of them will be from the conservative, Constitutionalist faction.


22 posted on 04/08/2012 9:22:00 AM PDT by Clintonfatigued (A chameleon belongs in a pet store, not the White House)
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To: Kaslin; All
Thanks for posting this provocative piece!

The writer's concluding premise seems to be that, unlike 1937, citizens of 2012 might be open to a frontal attack on what the Framers of the Constitution believed to be an essential branch of their government--the Supreme Court.

In order to understand why that might be so, we might review how so-called "progressives" have worked diligently over the past several decades, since 1937, to "change" "the People's" concept of their Constitution. Before this president, or anyone else, attempts such an attack on the Founders' chosen branch for judicial review, citizens might want to examine the danger to their freedom such a dictatorial position presents.

A commonly-used ruse has been deliberate misrepresentations by prominent jurists and law school professors of the Constitution's own provisions for amendment contained in Article V.

This "People's" Constitution--intended to be the people's "chain" (Jefferson) to bind representatives in government--never was intended to be "changed" except by a laborious process involving "the People" themselves.

Using the phrase "a living constitution," "progressives" superimpose their own wishes by claiming, as now-Justicee Sotamayor did at Duke, that "appeals courts are where policy is made," or that Her thinking likely stems from having been schooled in the "living constitution" theory.

A 1980's essay by Dr. Walter Bern is quoted, with permission below. Dr. Bern recounts the history of the "living constitution" idea and exposes some of the myths and fallacies associated with it, while, at the same time, citing the Founders' insistence upon the Constitution's own prescribed method of amendment requiring "the People's" assent and participation.

   







 

 

 

 
 

 

Do We Have
A Living
Constitution?

"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

In the first of the eighty-five "Federalist Papers," Alexander Hamilton emphasized that:

"... it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection or choice, or whether they are forever destined to depend for their political constitutions on accident and force."

The Framers knew that the passage of time would surely disclose imperfections or inadequacies in the Constitution, but these were to be repaired or remedied by formal amendment, not by legislative action or judicial construction (or reconstruction). Hamilton (in The Federalist No. 78) was emphatic about this:

"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 in a departure from it prior to such an act."

The Congress, unlike the British Parliament, was not given final authority over the Constitution, which partly explains why the judicial authority was lodged in a separate and in­dependent branch of government. In Britain the supreme judicial authority is exercised by a committee of the House of Lords, which is appropriate in a system of parliamentary supremacy, but, although it was suggested they do so, the Framers refused to follow the British example.

The American system is one of constitutional supremacy, which means that sovereignty resides in the people, not in the King-in-Parliament; and the idea that the Constitution may be changed by an act of the legislature--even an act subsequently authorized by the judiciary--is simply incompatible with the natural right of the people to determine how (and even whether) they shall be governed.

Unlike in Britain where, formally at least, the queen rules by the grace of God (Dei gratia regina), American government rests on the consent of the people; and, according to natural right, the consent must be given formally. In fact, it must be given in a written compact entered into by the people. Here is Madison on the compacts underlying American government:

  • "Altho' the old idea of a compact between the Govt. & the people be justly exploded, the idea of a compact among those who are parties to a Govt. is a fundamental principle of free Govt.

  • "The original compact is the one implied or presumed, but nowhere reduced to writing, by which a people agree to form one society. The next is a compact, here for the first time reduced to writing, by which the people in their social state agree to a Govt. over them." (In a letter to Nicholas P. Trist, February 15, 1830)

Neither civil society (or as Madison puts it, "the people in their social state') nor government exists by nature. By nature everyone is sovereign with respect to himself, free to do whatever in his judgment is necessary to preserve his own life - or, in the words of the Declaration of Independence, everyone is endowed by nature with the rights of life, liberty, and the pursuit of a happiness that he defines for himself. Civil society is an artificial person (constituted by the first of the compacts), and it is civil society that institutes and empowers government. So it was that they became "the People of the United States" in 1776 and, in 1787-88, WE, THE PEOPLE ordained and established "this Constitution for the United States of America."

In this formal compact THE PEOPLE specified the terms and conditions under which "ourselves and posterity," would be governed: granting some powers and withholding others, and organizing the powers granted with a view to preventing their misuse by the legislative, the executive, and the judicial branches alike. WE THE PEOPLE were authorized by natural right to do this, and were authorized to act on behalf of posterity only insofar as the rights of posterity to change those terms and conditions were respected. This was accomplished in Article V of the Constitution, the amending article, which prescribed the forms to be followed when exercising that power in the future.

  • What THE PEOPLE were not permitted to do in 1787-88 was to deprive - or pretend to deprive - posterity of their natural right to do in the future what the founding generation had done in 1776. Nor could they, by pretending to delegate it to Congress, the President, or the Supreme Court, deprive them of their sovereign power to change the Constitution. Instead, that power was recognized in the Constitution's provisions in Article V.

The Framers had designed a constitutional structure for a government which would be limited by that structure - by the distribution of power into distinct departments, a system of legislative balances and checks, an independent judiciary, a system of representation, and an enlargement of the orbit "within which such systems are to revolve" And to the judges they assigned the duty, as "faithful guardians of the Constitution," to preserve the integrity of the structure, for it is by the structure (more than by "parchment barriers") that the government is limited. It would he only a slight exaggeration to say that, in the judgment of the Founders, the Constitution would "live" as long as that structure was preserved.

The Enduring American Constitution

Now, almost 200 years later, one can read Hamilton's words in Federalist No. 1 and conclude that, under some conditions, some "societies of men" are capable of "establishing good government," but that most are not. This is not for lack of trying; on the contrary, constitutions are being written all the time - of some 164 countries in the world, all but a small handful (seven by the latest count) have written constitutions - but most of them are not long-lived.

In September 1983, the American Enterprise Institute sponsored an international conference on constitution writing at the Supreme Court of the United States; some twenty-odd countries were represented. With the exception of the Americans, the persons present had themselves played a role - in some cases a major role - in the writing of their countries' constitutions, most of them written since 1970. Only the con­stitution of the French Fifth Republic predated 1970; and the Nigerian, so ably discussed and defended at the 1983 conference by one of its own Framers, had subsequently been subverted, much as the four previous French republican constitutions had been subverted. It would seem that many peoples are experienced in the writing of constitutions, but only a few of them - conspicuous among these the people of America - have an experience of stable constitutional govern­ment. In that sense, we surely have "a living Constitution." That is not, however, the sense in which the term is ordinarily used in the literature of constitutional law as shall be explored herein.

Treating The Constitution As
A Thing Without Form or Substance:
New Definitions Of 'Living'

In the language of many today, a "living Constitution" is not first of all one that is long-lived; rather, its longevity is a secondary or derivative quality which is attributed to its "flexibility" or better, its "adaptability." It is this quality--"adaptability"-- that allows it to be "kept in tune with the times," as the members of this school of thought sometimes say. According to them, a living Constitution is first of all a protean constitution - one whose meaning is not fixed, but variable.

In this respect, it is similar to the Constitution as understood by the "judicial power" school. Some judicial power advocates go so far as to say that, until the judges supply it in the process of adjudication, the Constitution has no meaning whatever. Here are the words of judge Lynn D. Compton of California, writing in 1977 in the pages of the Los Angeles Times:

"Let's be honest with the public. Those courts are policy-making bodies. The policies they set have the effect of law because of the power those courts are given by the Constitution. The so-called "landmark decisions" of both of U.S. Supreme Court and the California Supreme Court were not compelled by legal precedent. Those decisions are the law and are considered "right" simply because the court had the power to decree the result. The result in any of those cases could have been exactly the opposite and by the same criteria been correct and binding precedent.

"In short, these precedent-setting policy decisions were the products of the social, economic and political philosophy of the majority of the justices who made up the court at a given time in history .."

So extreme a view of judicial power is not likely ever to be expressed in the official reports; there (perhaps in order to be dishonest with the public) even the most inventive judge will claim to be expounding the Constitution, if not its ex­plicit provisions then, at least its emanations, penumbras, or lacunae (Griswold v. Connecticut). What is of interest is that a judge should be willing to express it anywhere - for what it means is that a constitutional provision can be interpreted, but not misinterpreted, construed but not misconstrued. More to the point here is that it means that the Constitution is a living charter of government only because it is repeatedly being reinvented by the judiciary.

  • "Creating" Constitutional Rights and Dworkin's Influence

The 'Living Constitution' school and the 'Judicial Power' school may be indistinguishable at the margins, but they derive from unrelated and distinct sources. 'Judicial Power' is a product or an extension of legal realism, the school of thought whose advocates, from the beginning of the twentieth century, have argued that the essence of the judicial process consists not in interpreting law, whether statute or constitutional, but in making it. Its advocates today speak with a certain nonchalance of "creating" constitutional rights (Moore v. City of East Cleveland), and, when pressed to cite their authority for doing so are likely to point to the work of contemporary legal theorists like Ronald Dworkin and his book Taking Rights Seriously . It is Dworkin who has purportedly given this sort of "constitutional lawmaking" what it has always lacked ­ a philosophical underpinning. As he sees it, rights cannot be taken seriously until there has been "a fusion of constitutional law and moral theory," and to make it clear that he is not referring to any particular moral theory that may have informed the Constitution as written, he finishes that sentence by saying that that fusion "has yet to take place."

As it turns out, however, the moral theory he propounds, and which he hopes to "fuse" with constitutional law, proves to be nothing more than a fancy way of justifying what the judge Comptons among us have been doing all along. And what they have been doing is, essentially, treating the Constitution as a thing without form or substance, except insofar as it authorizes the judges to give it substance.

  • The 'Living Constitution' School's Distortion of Marshall

The living Constitution school also claims to have a source more venerable than legal realism or Ronald Dworkin - justice John Marshall. A former president of the American Political Science Association argues that the idea of a " 'living Constitution'...can trace its lineage back to John Marshall's celebrated advice in McCulloch v. Maryland (1819): 'We must never forget that it is a Constitution we are expounding...intended to endure for ages to come, and consequently to be adapted to the various crises of human affairs' " The words quoted are certainly Marshall's but the opinion attributed to him is at odds with his well-known statements that, for example, the "principles" of the Constitution "are deemed fundamental [and] permanent" and, except by means of formal amendment, "unchangeable" (Marbury v. Madison). It is important to note that the discrepancy is not Marshall's; it is largely the consequence of the manner in which he is quoted - ellipses are used to join two statements separated by some eight pages in the original text. Marshall did not say that the Constitution should be adapted to the various crises of human affairs; he said that the powers of Congress are adaptable to meet those crises. The first statement appears in that part of his opinion where he is arguing that the Constitution cannot specify "all the subdivisions of which its great powers will admit;" if it attempted to do so, it would "partake of the prolixity of a legal code" (McCulloch v. Maryland), In the second statement, Marshall's subject is the legislative power, and specifically the power "to make all laws which shall be necessary and proper for carrying into execution" the explicitly granted powers.

Neither Marshall nor any other prominent members of the founding generation can be 'appropriated' by the living Constitution school to support their erroneous views. Marshall's and the Founders' concern was not to keep the Constitution in tune with the times but, rather, to keep the times to the extent possible, in tune with the Constitution. And that is why the Framers assigned to the judiciary the task of protecting the Constitution as written.

They were under no illusions that this would prove to be an easy task. Nevertheless, they had reason to believe that they had written a constitution that deserved to endure and, properly guarded, would endure. Hence, 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:

  • "That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental: and as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent."

At this point, it is well to remember Hamilton's strong warning about unwarranted presumptions by those in government of a power to depart from the people's established form as quoted in the title of this essay.

Marshall referred to the "principles" which he called "permanent," and the "basis on which the whole American fabric has been erected" Yet Marshall also chose to address the much broader issue of the general scope of the national powers. The Constitution must be construed to "...allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people." It is these powers, not the Constitution, which are flexible and adaptable to meet the crises of "human affairs."

Ironically, the very case cited by the "living Constitution" school, when properly read, demonstrates that John Marshall, at least, saw, no need for flexibility in the Constitution.

Summary: Do We Have A Living Constitution?

What has been undertaken here has been providing (within a very brief compass indeed) an accurate statement of the principles underlying the American Constitution: pointing to (but by no means elaborating) the political theory from which they derive and the constitutional conclusions to which they lead. Among the latter is the untenability of the proposition that constitutional limitations can be jettisoned, constitutional power enhanced, or the constitutional divi­sion of powers altered, by means other than formal constitutional amendment.

It will not be argued that it may sometimes be convenient to allow the Senate to originate a bill "for raising revenue," but convenience is not a measure of constitutionality. There is much to be said in favor of the legislative veto - Who would, in principle, deny the need of checks on administrative agencies? - but, as the Supreme Court correctly said, the Framers anticipated that Congress might find reason to employ such devices and, when designing the so-called "presentment clause" in Article 1, Section 7, forbade them ( Immigration and Naturalization Service v. Chadha). And from a particular par­tisan perspective it is understandably frustrating, simply because the required number of states had not yet ratified the Equal Rights Amendment, to be denied the power to pro­mote the cause of sexual equality; but frustration alone cannot justify a judicial attempt to preclude the necessity of for­mal ratification, as Justice Brennan is said to have wished to do. In Frontiero v. Richardson (411 U.S. 677, 1973) the Supreme Court was divided on the issue of whether sex, like race, should be treated as a suspect classification. We are told that Justice Brennan circulated a draft opinion in which he proposed to declare classification by sex virtually impermissi­ble and that he knew this would have the effect of "enacting" the pending ERA. "But Brennan was accustomed to having the Court out in front, leading any civil rights movement," a major publication stated. Hence, we are further told, he saw "no reason to wait several years for the states to ratify the amendment." No reason, that is, other than the fact, which Brennan implicitly acknowledged, that the Constitu­tion as then written, and which had not yet been rewritten by the only people authorized to rewrite it, did not support the role he would have the Court hand down.

Those who would use "convenience" or "frustration" as reason, or who insist that it lies within the powers of the Court (or the Congress or the Executive) to effect constitutional change, can be charged with a lack of respect for the principles on which, as Marshall wisely observed: "the whole American fabric has been erected."

We are told that it is unreasonable - even foolish - to expect that the Framers could have written a Constitution suitable alike for a society of husbandman and a society of multinational corporations, to say nothing of one as well adapted to the age of the musket and sailing ship as to the age of intercontinental nuclear-tipped missiles. As the problems have changed, the argument goes, so must the manner in which they are confronted and solved, and the Constitution cannot be allowed to stand in the way. Indeed, there is no reason to allow it to stand in the way, we are told, because the Framers intended it to be flexible. And we are told that John Marshall would support this position. But it was Marshall, in McCulloch v. Maryland, who stated: "Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported." The United States, in this view was not intended to be a simple society of husbandmen, and Marshall Clearly saw that the Constitution empowered Congress to do what was required to meet the crises of the Republic, and to maintain the Constitutional structure intended by the Framers, changing it only when such change would be in keeping with the structure itself.

That the American Constitution is long-lived, has enduring qualities, and was intended for the ages cannot be doubted. That it was founded on enduring principles, and that it was based on the authority of a people who are sovereign has been attested to by many of its leaders. That it can be changed when, and if, the people ordain such change is a part of its own provisions. For these reasons, it can be said to be a "Living Constitution" - but let that not be claimed by those who would use the language to subvert the structure.

Our Ageless Constitution - Part VII (1987) (Publisher: W. David Stedman Associates; W. D. Stedman & La Vaughn G. Lewis, Eds.) ISBN 0-937047-01-5       (Essay adapted by Editors for publication in this Volume in consultation with Dr. Walter Berns from Berns' article by the same title in National Forum, The Phi Kappa Phi Journal, Fall 1984)


23 posted on 04/08/2012 9:54:36 AM PDT by loveliberty2
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To: heshtesh

MANY more offsets....


24 posted on 04/08/2012 10:04:51 AM PDT by clee1 (We use 43 muscles to frown, 17 to smile, and 2 to pull a trigger. I'm lazy and I'm tired of smiling.)
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To: Reeses
Credit must also be given to the strength of our military, which without firing a shot keeps in check the dreams of dictator wannabes like Barky.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

If the very highest military does not see that Obama fails e-verify, has used multiple socials security numbers, is now using a SS# from a man born in 1890, and has posted more than one flat out FORGERY, then they are brain dead or COMPLICIT!

When did ignoring usurpation, FORGERY, and identity theft, become part of the military code of honor and the oath to defend the Constitution?

Where is the evidence that these very highest military peacefully and legally asked congress or the courts to clarify with certifiable evidence that Obama is a natural born citizen or even a citizen at all?

When did any of the highest military hold a press conference to resign because they could not serve under a man who was very like a usurper?

Is ignoring usurpation, forgery, and identity theft now commonly taught in our military colleges?

Is this how the highest military watches the back of those brave and honorable men and women serving under them?

Why doesn't lightning strike when these perfumed princes when they return the salute of the brave man women serving under them and greet the families of the fallen and grievously maimed servicemen and women?

25 posted on 04/08/2012 10:09:57 AM PDT by wintertime (Reforming a government K-12 school is like reforming an abortion center.)
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To: Gaffer; ml/nj; ExTexasRedhead; Red Steel; David; GreatOne; theothercheek; AJFavish; Spaulding; ...
The only way that one can 'conquer' the Supreme Court is to have at least 3/4 of the states ratify an an amendment to the Constitution.

No. Amending the Constitution is, by its original design, very difficult. That's why Roosevelt, rather than proposing a Constitutional Amendment, sought to solve his "problem" by having Congress pass ordinary legislation permitting a Supreme Court of up to fifteen justices. The number of justices on the Supreme Court is not fixed (currently at nine) by the Constitution, but rather is specified by statute. In fact, the SCOTUS began with only five justices, later increased to seven, and then to nine - all by legislation.

The point is that Obama could legally urge Congress to increase the size of the SCOTUS without the need for a Constitutional amendment. However, with the Congress as it currently is, such a proposal would, thankfully, face certain defeat. So chances are slim that he would repeat Roosevelt's mistake.

26 posted on 04/08/2012 10:49:45 AM PDT by justiceseeker93
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To: justiceseeker93

You are telling me that is DOES NOT require at least 3/4 of the states to ratify an amendment?


27 posted on 04/08/2012 10:53:21 AM PDT by Gaffer
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To: Clintonfatigued
A more important point is that whoever is elected President in 2012 will be making Supreme Court appointments. Four of the justices will be over 70 y/o and two of them will be from the conservative, Constitutionalist faction.

And that's why I'll be voting for whoever the Republican nominee turns out to be. ABO!!!

28 posted on 04/08/2012 10:53:35 AM PDT by SuziQ
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To: null and void

More relevant precedent: “[The Supreme Court] has made [its] decision; now let [it] enforce it!” - President Andrew Jackson


29 posted on 04/08/2012 11:20:38 AM PDT by ctdonath2 ($1 meals: http://abuckaplate.blogspot.com/)
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To: onceone
216,000 employees amounts to about 400 rounds per year, per employee. I would hope they would use up more than that on the practice range. I do.

The 400 rounds per employee might sound reasonable at first but then when you consider that many if not most DHS employees are in support roles such as secretaries, janitors, mailroom clerks, and who knows how many other categores, the number per armed employee goes up drastically.

Secondly, is it necessary to fire hollow points at the practice range? What are the targets made of? Kevlar? What's wrong with good old cardboard?

30 posted on 04/08/2012 11:54:36 AM PDT by Texas Eagle (If it wasn't for double-standards, Liberals would have no standards at all -- Texas Eagle)
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To: Kaslin

There is no question about it. If he wins a second term he will negate the Supreme Court, the Constitution, the Bill of Rights and the freedoms of all (free at this time) Americans.

Up to now, the GOP has ALLOWED all to happen due to their timid and politically correct ways.

The “glue” that will seal the papers on our country’s demise will be the selection for Romney to represent the Republicans and will ensure the safety of Obama’s reelection.

If, by sheer accident, Romney wins, we will have Obama “light” and the Democrats will rule with impunity for the next 4 years.

It’s a lose-lose situation for the American patriots and conservatives, all being staunch supporters of our Constitution and the Bill of Rights.


31 posted on 04/08/2012 11:56:57 AM PDT by DH (Once the tainted finger of government touches anything the rot begins)
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To: justiceseeker93

Article Five:

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.


32 posted on 04/08/2012 12:24:02 PM PDT by Travis McGee (www.EnemiesForeignAndDomestic.com)
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To: justiceseeker93
Thank you.

It is important to know and understand what the Constitution does and does not say. Not nearly enough people do.

I'm glad you include me in your posts.

33 posted on 04/08/2012 12:30:11 PM PDT by Aevery_Freeman (Typed using <FONT STYLE=SARCASM> unless otherwise noted)
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To: wintertime
The 2008 Florida recount did it for me.

2008 recount? Did you mean the 2000 recount (Bush v. Gore)? I don't recall any recount of importance in 2008 in Florida, certainly none that was national news.

34 posted on 04/08/2012 1:18:04 PM PDT by Verginius Rufus
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To: Verginius Rufus

Yep! A typo. I did mean 2000.


35 posted on 04/08/2012 1:27:32 PM PDT by wintertime (Reforming a government K-12 school is like reforming an abortion center.)
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To: Gaffer; Aevery_Freeman; Travis McGee; All
You are telling me that it does not require at least 3/4 of the states to ratify an amendment.

You are absolutely correct when you say that it requires 3/4 of the state legislatures to ratify an amendment.

But what I was saying is that, legally, Congress could expand the size of the Supreme Court to more than the current nine justices by ordinary legislation (simple majorities of both houses). Thus, theoretically, Obama could wrest effective control of the SCOTUS without any need for the Constitutional amendment process. But fortunately, there is just about zero chance of that happening with the current Congress. Thus, by the amazing prescience of the Founding Fathers and their structure of checks and balances, Obama is spinning his wheels in the quicksand on this one.

36 posted on 04/08/2012 2:13:15 PM PDT by justiceseeker93
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To: Clintonfatigued
Obama would not have done this if he thought Obamacare was going to be upheld.

...or if he wasn't sure and thought he could intimidate the fence sitters.

As it stands now, the guess here is that the individual mandate will go down 5-4, barring any last-minute shifts.

37 posted on 04/08/2012 2:23:47 PM PDT by justiceseeker93
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To: DH
"There is no question about it. If he wins a second term he will negate the Supreme Court, the Constitution, the Bill of Rights and the freedoms of all (free at this time) Americans."

"Up to now, the GOP has ALLOWED all to happen due to their timid and politically correct ways."

True that there is no question about it DH, but the Constitution has been circumvented since Justice Roberts administered the oath of office. The GOP wasn't timid, they were complicit. The Obama/McCaskill bill, S.2678, to make McCain eligible, the ‘‘Children of Military Families Natural Born Citizen Act’’ in February 2008 didn't pass, and wouldn't have survived judicial review if it had. The successor act by Democrats, Senate Resolution 511, April 2008, provided talking points for legislators and the media, but has no legal force. The principle at the core of SR511 was stated by former Judge Michael Chertoff, and agreed to by every US Senator.

“My assumption and my understanding is that if you are born of American parents, you are naturally a natural-born American citizen,” Chertoff replied. “That is mine, too,” said Leahy.”

The law, avoided by every pundit, every legislator, and ever judge remains on paper in our archives, at least for the moment, having citations to it scrubbed from Google and Justia by Obama operatives. It is unarguable, which is why there are many surreptitious Obama operatives who continue to lament forged “COLB”s, patently fictitious social security numbers and selective service documents. Obama can simply deny having authorized those documents. He can't, and has not, claim to satisfy Article II Section 1. He has honestly told us he is a naturalized citizen, but the media and ignorance protect him. He said “I am a native-born citizen of the US.” A “native-born” citizen is a citizen naturalized by having been born on our sovereign soil. Every anchor baby, born to illegal immigrants, is a “native-born citizen of the US.” Here is the Supreme Court clarification of the common-law definition of Article II natural born citizenship. Remember, definitions used in the Constitution were all based upon the common-law and common language of our framers.

“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”

Minor v. Happersett, 88 US 163 (1875), as quoted above is precedent. There can only be one case defining “held” precedent. We are not honoring the Constitution while Obama is in the White House. Both parties had their reasons. Had the Republicans not accepted the quid-pro-quo, never performing their obligation to vet Obama, Hillary would be running for her second term in 2012. McCain was vetted and never found eligible; the Senate in SR511 said, in effect, “We think our framers would have amended the Constitution had they known McCain would be running, and Washington would not have rescinded the 1790 Nationality Act, which was the last action to attempt to expand the definition of natural born citizenship.”

This definition does not change. The media hope you, like changing the channel, will tire of the truth, since this law isn't being honored, respected, or protected. They are probably correct. When the the dictatorship of the proletariat decides that the 1st Amendment is also inconvenient, they may be sorry. There need only be one network, one organization reciting the edicts of government.

38 posted on 04/08/2012 3:17:03 PM PDT by Spaulding
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To: Texas Eagle
I consider the number of desk jockeys significant, but you have to know I did not include any of the 100,000+ contractors they also have working for them.

As for why hollow points, why not train with your duty ammo when you can get someone else to foot the bill? Have you ever heard of a government entity spending other people's money wisely?

Many of the CCW classes around here require a 200 round qualification. 1,000 practice rounds a year per person would be easy to attain, especially if they were free.

39 posted on 04/08/2012 5:40:59 PM PDT by onceone
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To: Spaulding
The natural born provision was included to exclude from the presidency foreign princes such as Prince Henry, the very able and liberal brother of King Frederick of Prussia, and the children of immigrants who had some meaningful connection with “the old country.”

Alexander Hamilton, who was grandfathered, shared something with our President. He was eighteen when he immigrated to New York to attend Kings College (Columbia). He established himself in his new abode by marrying the daughter of a local magnate. His plan for the constitution which he submitted to the Convention, sank like a stone, because he had no feelings for the differences between the former colonies and new states. He supported the Constitution simply out of expedience. He always remained a stranger to the mainland, a bit like Napoleon, another islander who used unsettling time to make his fortune. Were it not for John Adams,Hamilton would have gone to war with France, and made us the allies of the British.

Obama has no deeper roots in this country.Like Hamilton and Napoleon, he is an adventurer, and therefore dangerous.

40 posted on 04/08/2012 6:02:20 PM PDT by RobbyS (Christus rex.)
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To: Kaslin

It’s not his to conquer.

The three braches of government are idependent of one another. Guess he doesn’t know that.


41 posted on 04/08/2012 6:09:58 PM PDT by Salvation ("With God all things are possible." Matthew 19:26)
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To: AmericanInTokyo
It has happened many times in our hemisphere by tinhorn dictators, why not at least once in the 250 years of the United States?

Obama drips with Caesarism, which is reduced in American usage to a throwaway reference to Spengler, but Spengler meant a lot by it, and anyone who's read Roman history knows exactly what he is talking about. The elements of the Roman Revolution are identifiable already in ours, even if they aren't as stinkingly developed. A legislature, for instance, peopled by millionaires, and controlled by them and by corrupt-and-corrupting special interests with a vested interest in controlling outcomes in an ossified legislative process in which unconstitutional procedures (continuing resolutions, "reconciliation") are increasingly used. That, for one.

Obama brings the element of the adventurous, ambitious scofflaw, constantly inventing and directing new pressures against existing groups and institutions to work not his singular will, but a collective factional will, in this case the neo-Stalinists' who are working with Obama as his kitchen cabinet and executive reports.

42 posted on 04/08/2012 7:34:15 PM PDT by lentulusgracchus
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To: loveliberty2
(Lewis in your cited source, quoting Madison)
"Altho' the old idea of a compact between the Govt. & the people be justly exploded, the idea of a compact among those who are parties to a Govt. is a fundamental principle of free Govt.

Notice that in the "New Deal" and "Great Society", both Franklin Roosevelt and Lyndon Johnson promoted precisely the idea of "a compact between the Govt. & the people" -- thereby promoting FDR and LBJ to the status of equals of the People, and counterparties to a "compact", rather than servants of the People.

There's a con man on every street corner, and in politics they mob you, all spraying your face and offering to squeegee it dry for you -- with their hands in your pocket, or on your wife's honor.

43 posted on 04/08/2012 7:47:39 PM PDT by lentulusgracchus
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To: RobbyS
RobbyS, it is likely that there is much more significance to the requirement for natural born citizens than a concern for ‘foreign princes,” though your point is well taken. Titles were abolished, but the inheritance of allegiance is impossible to completely remove. Even immigrants and exiles from the USSR and Cuba have left a part of themselves to come here. In the eighteenth century we were all, at one time, subjects of the Crown. After we had won our independence on the battlefield there was no certain way to ascertain that a child of an alien didn't hold a secret allegiance to the nation of his parent. That is the reason for the structure of the ‘grandfather clause.” In 1787 citizen who had resided in America for fourteen years was here three years before the Declaration of Independence.

Hamilton fought nobly in the revolution, and was Washington's most important officer, Secretary of the Treasury, when Washington accepted the presidency. Hamilton was very familiar with the common-law upon which our republic was based, and shared his judgments with Washington in voluminous letters. In one such letter, from 1790, Hamilton commented: “But Vatel, perhaps the most accurate and approved of the writers on the laws of nations, preserves a mean between these different opinions.” Hamilton, unlike Obama, depended upon “nature's law and Law of Nations” to support most of his decisions. In that respect alone, Hamilton is the antithesis of Obama. Open disagreement comes with the territory. In a republic, different opinions are expected. The Constitution established the ground rules, a doctrine of constraints on government, the opposite of Obama. And Hamilton, in an early draft, required a ‘citizen’ president, made no objection to John Jay and Washington's further constraint, probably taken, as noted by founder John Marshall, directly from Vattel.

From what I've read about Hamilton, the abandonment of his possibly Jewish mother in St. Croix by the black sheep of a titled Scottish family, and the terrible treatment of slaves , and of most not from Britain's privileged classes generated little or no allegiance for the British Colony, again, recalling that most everyone in pre-revolutionary America was a British colonial. Obama, on the other hand, if we believe Bill Ayers' biography of Barrack, ideolized his absent father, whose allegiance was to some flavor of Islamic Marxism. Hamilton and Obama are on opposite ends of spectrum from freedom of the individual to a central oligarchy built around socialism. (I would appreciate a reference to a better biography than the Ron Chernow Volume, which seems preocupied with Hamiltion’s possible bisexual activities, and reads like a potential montion picture script, causing our family put it down about half way through. A briographer familiar with legal history would help.)

44 posted on 04/08/2012 10:32:29 PM PDT by Spaulding
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To: Kaslin

“Worse still, it seems that very few Americans recognize the President’s behaviour is problematic.”

Mr. Maher, on his TV show, said it best; something to the effect that it should be done in this country the way it’s done in China.

His attitude reflects the opinions and “feelings” of many in the electorate who think Mr. Obama loves and cares for them.

They’re willing to forego the Constitution in order for him to take care of them.

(President Obama in 2013, 55 percent to 45 percent.)

IMHO


45 posted on 04/09/2012 5:22:20 AM PDT by ripley
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To: Kaslin

“Worse still, it seems that very few Americans recognize the President’s behaviour is problematic.”

Mr. Maher, on his TV show, said it best; something to the effect that it should be done in this country the way it’s done in China.

His attitude reflects the opinions and “feelings” of many in the electorate who think Mr. Obama loves and cares for them.

They’re willing to forego the Constitution in order for him to take care of them.

(President Obama in 2013, 55 percent to 45 percent.)

IMHO


46 posted on 04/09/2012 5:25:42 AM PDT by ripley
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To: Clintonfatigued; justiceseeker93; AdmSmith; AnonymousConservative; Berosus; bigheadfred; ...

Thanks Clintonfatigued and justiceseeker93.


47 posted on 04/09/2012 8:38:12 PM PDT by SunkenCiv (FReepathon 2Q time -- https://secure.freerepublic.com/donate/)
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