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Pres. asks Cong. for power not authorized by We, the People!

 
 
Reply Sat 28 May, 2005 12:58 pm
Early Version of New Patriot Act Gives Administration Everything It Asks for, GOP Aides Say


“WASHINGTON (AP) - The chairman of the Senate Intelligence Committee is working on a bill that would renew the Patriot Act and expand government powers in the name of fighting terrorism, letting the FBI subpoena records without permission from a judge or grand jury.”


Hmmmmm, didn’t know the Senate Intelligence Committee has authority to give the FBI or any other agency of the federal government “power” to seize records without a court order.

I always thought the power-granting-authority in our system of government resided with the People via the amendment process. Didn’t know it was lodged in the hands of the people’s employees sent to Washington, D.C.


“The administration has sought this power for two years, but so far been rebuffed by lawmakers. It is far from certain that Congress will give the administration everything it wants this year.”


The administration "has sought this power"? That’s strange, I don’t recall “the administration” asking the people for such power by promoting an amendment to the constitution granting such power. Could it be that “the administration”, with Congress’ help, is attempting to fool the people into believing Congress has the power to grant the powers in question?

Na, folks in government wouldn't do that, would they?

JWK
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Debra Law
 
  1  
Reply Sat 28 May, 2005 02:22 pm
See THE USA PATRIOT ACT, FOREIGN INTELLIGENCE SURVEILLANCE and CYBERSPACE PRIVACY

Quote:
USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism, USAPA), H.R. 3162, was passed on October 26, 2001. The bill is 342 pages long and amends over 15 different statutes. The legislation was written extremely quickly - only five weeks passed between the introduction of the first ‘draft’ of the act and its final passage into law. As a result of the haste with which the act was passed, the vast majority of the provisions in the act contain sunset provisions under which they will become inactive on December 31, 2005. Despite the sunset provisions, the act has far reaching impact on the privacy rights of U.S. citizens. Many organizations interested in protecting civil liberties are concerned that the act inappropriately encroaches on the privacy rights of American citizens – and justly so.


JWK:

According to the Constitution, Congress has the power to provide for the common defense and general welfare of the United States. Congress has the power to make all laws which shall be necessary and proper to executing its Section 8 powers and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof.

The Fourth Amendment provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. Accordingly, only "unreasonable" searches and seizures are prohibited. The idea that any search or seizure conducted without a warrant is unreasonable has been rejected. There are many exceptions to the warrant requirement. There are also many originalists and strict constructionists who argue that "we the people" do not have a "right to privacy" protected by the Constitution.

Do we have a right to privacy in our banking or financial records, in our library records, in our DNA, or in our email or other activities in cyberspace? How do you establish whether we have a constitutionally protected right to privacy in these things?

Congress enacted the Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1797, 50 U.S.C. Sec. Sec. 1801-1811. The Patriot Act broadens the scope of FISA intelligence authority. Before you can suggest that "we the people" must amend the Constitution to allow these laws, you must first establish that the government has violated the Constitution by enacting these laws.
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Merry Andrew
 
  1  
Reply Sat 28 May, 2005 02:38 pm
Ever since the reign of Ronald Reagan (I use the word advisedly), the Executive branch of our government has managed to usurp more and more powers which the Constitution was never meant to grant it. For example, we have been involved in half a dozen military actions although the last time we were in an actual "war" was WW II. The US has not declared war even once since Dec. 7, 1941. That's because Congress has seen fit to surrender its Constitutionaly-mandated power to be the sole entity which can declare war by giving the President special "executive powers" in times of "emergency." The FBI and other Federal agencies are begining to resemble the KGB more and more. I've said this before and I'll say it again -- we are witnessing the decline and fall of the US Republic and the inception of the US Empire. The Constitution has become a quaint old document, to be revered as a symbol rather than as a living charter. Anyone who believes they can rely on the protection of the first 10 amendments to the Constitution is living in a fool's paradise.

edited once for an egregious typo
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Debra Law
 
  1  
Reply Sat 28 May, 2005 03:37 pm
The overriding issue is whether the Constitution was intended to endure for all time (as a "living charter") for each generation of citizens (the progeny) or whether it is an antiquated document.

In previous threads, JWK, has argued that we are bound by the INTENT of the FRAMERS.

The Fourteenth Amendment provides:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."


According to JWK, the Fourteenth Amendment is LIMITED to protecting former slaves as follows:


JWK wrote:
The historical truth is, the 14th Amendment was adopted with the legislative intent to prohibit state adopted legislation based upon race color or previous condition of slavery, and, to preclude the power of the state to be used in such a fashion as to impose unequal burdens or treatment based upon race color or previous condition of slavery.

The legislative intent of the 14th Amendment was never intended to apply to state laws which make distinctions based upon criterion other than race, color or previous condition of slavery.



Source

Therefore, according to JWK, persons (other than former slaves) who are injured by state laws based upon gender, sexual orientation, etc., are NOT protected by the Fourteenth Amendment despite modern Supreme Court interpretations that they are protected. The Supreme Court essentially followed JWK's restrictive view of the Fourteenth Amendment for 90 years. However, the Supreme Court's modern interpretations do not limit Fourteenth Amendment jurisprudence solely to laws that oppress former slaves. If the FRAMERS had intended former slaves to be the sole beneficiaries of the Fourteenth Amendment, then why use the expansive language of "citizens of the United States" and "any person?"

JWK argues:

JWK wrote:
The notion that the constitution means what the Supreme Court says it means is far from being “provocative”. It’s just plain stupid, at least to a freedom loving people who intended to bind the hands of government by the chains of a written constitution! The truth is, the Constitution means what its framers and ratifiers intended it to mean!


Source

And now, JWK starts a thread entitled, "Pres. asks Cong. for power not authorized by We, the People!" He claims: "Hmmmmm, didn’t know the Senate Intelligence Committee has authority to give the FBI or any other agency of the federal government “power” to seize records without a court order." [Linked to the Fourth Amendment--FindLaw--with annotations to Supreme Court decisions interpreting the Fourth Amendment.]

I am demanding JWK provide proof, via the "framers and ratifiers" INTENT, that the Fourth Amendment prohibits the federal government from issuing subpoenas to obtain privately held records concerning citizens or persons as a means to fight the modern "war on terrorism." The Fourth Amendment only prohibits UNREASONABLE searches and seizures. Who determines what is reasonable or unreasonable in modern times and what guidelines do we use to make that determination?

Inasmuch as JWK has rejected the Supreme Court's authority to interpret and apply the Constitution, he needs to come forward and specifically set forth the FRAMERS' and RATIFIERS' intent upon which he bases his determination that the Patriot Act violates the Fourth Amendment.
0 Replies
 
john w k
 
  1  
Reply Sat 28 May, 2005 05:08 pm
Debra_Law wrote:

According to the Constitution, Congress has the power to provide for the common defense and general welfare of the United States.


But Debra dear, according to those who framed and ratified the Constitution, the power to provide for the common defense and general welfare of the United States is intentionally limited by the specific specifications beneath those words.

Madison, in No. 41 Federalist, explaining the meaning of the general welfare clause which you refer to Debra states the following:


"It has been urged and echoed, that the power "to lay and collect taxes...to pay the debts, and provide for the common defence and the general welfare of the United States amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor [the anti federalists] for objections, than their stooping to such a misconstruction...But what color can this objection have, when a specification of the object alluded to by these general terms immediately follows, and is not ever separated by a longer pause than a semicolon?...For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power...But the idea of an enumeration of particulars which neither explain nor qualify the general meaning...is an absurdity."

Likewise, in the Virginia ratification Convention Madison explains the general welfare phrase in the following manner so as to gain ratification of the constitution:

"the powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction."[3 Elliots 95] [also see Nicholas, 3 Elliot 443 regarding the general welfare clause, which he pointed out "was united, not to the general power of legislation, but to the particular power of laying and collecting taxes...."]

Even Hamilton, who changed his tune after the constitution was ratified, says in Federalist 83, in reference to the general welfare clause, that "...the power of Congress...shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended..."

Hamilton’s words in Federalist No. 83 are also in harmony with that of Jefferson:

"Our tenet ever was, and, indeed, it is almost the only landmark that divides the Federalists from the Republicans, that Congress has not unlimited powers to provide for the general welfare, but were restrained to those specifically enumerated; and that, as it was never meant they should provided for that welfare but by the exercise of the enumerated powers, so it could not have been meant they should raise money for purposes which the enumeration did not place under their action; consequently that the specification of power is a limitation of the purposes for which they may raise money." (letter from Jefferson to Gallatin, June 16th, 1817)

And finally my dear, George Mason, in the Virginia ratification Convention informs the convention "The Congress should have power to provide for the general welfare of the Union, I grant. But I wish a clause in the Constitution, with respect to all powers which are not granted, that they are retained by the states. Otherwise the power of providing for the general welfare may be perverted to its destruction.".[3 Elliots 442]

For this very reason the Tenth Amendment was quickly ratified, to intentionally put to rest any question whatsoever regarding the general welfare clause and the supposed powers which enemies of our Republic now claim is with its meaning.




As Justice Story correctly declares [see1084 of his com.] "If the Constitution was ratified under the belief, sedulously propagated on all sides, that such protection was afforded, would it not now be a fraud upon the whole people to give a different construction to its powers?"


Debra_Law wrote:

Congress has the power to make all laws which shall be necessary and proper to executing its Section 8 powers and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof.


But Debra dear, you have changed the wording of the provision you cite. The correct wording is:

“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

In any event, what is your point?



Debra_Law wrote:

The Fourth Amendment provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. Accordingly, only "unreasonable" searches and seizures are prohibited.


My goodness, you have eliminated important wording from the amendment:


“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Did you read what it says about “Warrants” Debra? Did you also read what the administration is asking for? Now, provide the documentation in which the framers and ratfiers intended to allow their federal employees to engage in arbitrary warrantless searches.


Debra_Law wrote:

Congress enacted the Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1797, 50 U.S.C. Sec. Sec. 1801-1811. The Patriot Act broadens the scope of FISA intelligence authority. Before you can suggest that "we the people" must amend the Constitution to allow these laws, you must first establish that the government has violated the Constitution by enacting these laws.



“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”


JWK
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Debra Law
 
  1  
Reply Sat 28 May, 2005 06:10 pm
In addition to mischaractering what I said, you ignored the entire point of the post.

AGAIN, the Fourth Amendment only prohibits UNREASONABLE searches and seizures. You have not set forth any arguments to substantiate your conclusion that the Patriot Act authorizes "unreasonable" or "arbitrary" warrantless searches. Specifically, what provision of the Patriot Act do you find to allow "arbitrary" warrantless searches? How do you define "unreasonable" or "arbitary?"

The Fourth Amendment does not require a warrant for all searches and seizures. There are many exceptions. Therefore, your reference to the warrant clause doesn't help your argument.

AGAIN, please provide evidence of the FRAMERS' and RATIFIERS' INTENT that the Patriot Act is an unconstitutional violation of the Fourth Amendment.

Should we construe the words of the Fourth Amendment strictly in accordance with the precise words used by the Framers or do we construe the words broadly to effect an interest in liberty? Do we interpret the Fourth Amendment in accordance with the majority opinion in KATZ v. UNITED STATES, 389 U.S. 347 (1967) or do we interpret it in accordance with the dissenting opinion written by Justice Black?
0 Replies
 
john w k
 
  1  
Reply Sat 28 May, 2005 07:25 pm
Debra_Law wrote:

The overriding issue is whether the Constitution was intended to endure for all time (as a "living charter") for each generation of citizens (the progeny) or whether it is an antiquated document.



But Debra dear, have you already forgotten what I taught you?
I did inform you that the wise framers and ratifiers provided a method for change to accommodate future generations and changing times. That method my dear does not provide and allowance for the executive, legislative or judicial branch of our federal government to make the constitution mean whatever they may want it to mean . . . the method provided for change by the framers and ratifiers is the amendment process in which the people, and not their employees in Washington, D.C., may alter their constitution by their own reason and choice and requires the consent of the governed! Do you have a problem with that method? Do you prefer judges to act as a sitting constitutional convention and change the constitution to meet their own personal whims and fancies as was the case when we suffer under the House of Lords? What are you promoting, Debra?


Debra_Law wrote:


In previous threads, JWK, has argued that we are bound by the INTENT of the FRAMERS.


Debra,

It is quite disingenuous to mischaracterize what I have stated. I have repeatedly referred to the framers and ratifiers, and also noted that “the most fundamental principle regarding constitutional law is to carry out the intent of the constitution as contemplated by those who framed it and the people who ratified it. To do otherwise is to view the constitution as nothing more than a list of suggestions subject to the whims and fancies of those in political power. Fact is, the “intent” is what is to be followed, and not that which may be “squeezed” out of the text as Jefferson has informed us…”

I also provided you with numerous citations after writing the above.


I also suggested that you consult Am Jur vol. 16, Constitutional Law, “Rules of Construction” starting with “Uniformity“ which begins:


Quote:


Constitutions do not change with the varying tides of public opinion and desire. The will of the people therein recorded is the same inflexible law until changed by their own deliberative actions. Thus, a cardinal rule in dealing with constitutions is that they should receive a consistent and uniform interpretation, so that they shall not be taken to mean one thing at one time and another thing at another time, even though the circumstances may have so changed as to make a different rule seem desirable. In accordance with this principle, a court should not allow the facts of the particular case to influence its decision on a question of constitutional law, nor should a statute be construed as constitutional in some cases and unconstitutional in others involving like circumstances and conditions. Moreover, the courts should never allow a change in public sentiment to influence them in giving a construction to a written constitution not warranted by the intention of its founders. [multiple citations omitted].


So, in fact Debra, I do not “argue” the point, but rather, merely provide materials and citations which establish this rule as a fundamental principle of constitutional law . . . a principle of law which has over three hundred years of history.


JWK
0 Replies
 
john w k
 
  1  
Reply Sat 28 May, 2005 07:48 pm
Debra_Law wrote:
In addition to mischaractering what I said, you ignored the entire point of the post.


Please quote my words in which I have mischaracterized what you wrote.
0 Replies
 
john w k
 
  1  
Reply Sat 28 May, 2005 08:28 pm
Debra_Law wrote:


AGAIN, the Fourth Amendment only prohibits UNREASONABLE searches and seizures. You have not set forth any arguments to substantiate your conclusion that the Patriot Act authorizes "unreasonable" or "arbitrary" warrantless searches. Specifically, what provision of the Patriot Act do you find to allow "arbitrary" warrantless searches? How do you define "unreasonable" or "arbitary?"

The Fourth Amendment does not require a warrant for all searches and seizures. There are many exceptions. Therefore, your reference to the warrant clause doesn't help your argument.

AGAIN, please provide evidence of the FRAMERS' and RATIFIERS' INTENT that the Patriot Act is an unconstitutional violation of the Fourth Amendment.



Thank you for your opinions. Tell me, do you know the historical meaning of a "writ of assistance" ? Seems to me the Patriot Act is an attempt by folks in government to reclaim an authority to issue “writs of assistance” and then engage in the same invasions of privacy as experienced by our founding fathers. Perhaps you should study the History and Scope of the Amendment and especially study that part which refers to “writs of assistance”.

Tell me Debra, what was the evil which the founding fathers were attempting to preclude by the adoption of the Fourth Amendment?



JWK
0 Replies
 
Debra Law
 
  1  
Reply Mon 30 May, 2005 12:55 pm
JWK:

I can't take your diatribes seriously. You don't answer my queries about your hypocrisy. I have pointed out your glaring inconsistent stance on the interpretation and application of constitutional provisions.

With respect to the Fourth Amendment, you choose to be guided by the spirit of the constitutional provision and give it a broad construction -- a construction not necessarily intended by the "framers" as set forth in the actual language they used and the evil they sought to limit as amply discussed by Justice Black in his dissent in Katz. And yet, you insist the only way to interpret the Constitution is to ascertain the framers' intent.

Therefore, I ask again the question that you keep avoiding. What interpretation of the Fourth Amendment do you embrace? Do you approve of the interpretation and application of the amendment set forth by the majority in Katz? or do you approve of the "framers' intent" interpretation set forth by Justice Black in his dissent in Katz?

With respect to the Fourteenth Amendment, you insist on giving it an extremely narrow construction that would only protect former slaves and no one else despite the amendment framers' use of language that broadly includes all citizens and all persons within the jurisdiction of a state.

I have made it clear that I am an advocate of liberty and equality. I believe the framers and ratifiers of our Constitution intended a broad construction of the language that they chose and approved in order to secure the blessings of liberty for ALL.

Depending on your agenda (and the result you desire), you are either an advocate of originalism (as evidenced by your narrow interpretation of the Fourteenth Amendment) or you are an advocate of the living Constitution (as evidenced by your expansive interpretation of the Fourth Amendment). It's your inconsistent stance on constitutional interpretation and your resulting hypocrisy that I abhor.
0 Replies
 
john w k
 
  1  
Reply Mon 30 May, 2005 06:29 pm
Debra_Law wrote:
I can't take your diatribes seriously.

Presenting facts and historical citations are a diatribe? Seems to me when people make assertions the rules of this board ask for specific references to back up one’s claims

Quote:
Rules of the forum:

* Verify your claims...differentiate facts and opinions
Claims you want to argue in your posts ought to be clearly stated, but specific and not unhelpfully generalized. Try to find examples. If your claim isn't something you are able to verify, note that it is your opinion only. Where you can verify, show the sources so others can check. Provide links wherever they are aidful.


Debra_Law wrote:

You don't answer my queries about your hypocrisy.

Another unsubstantiated accusation?

Debra_Law wrote:

I have pointed out your glaring inconsistent stance on the interpretation and application of constitutional provisions.


Quote:
rules of the forum:

* Be specific
Few things are more intellectually irritating (not to mention worthless) than reading some uncautious and poorly thought out claim…


My stance? What I have repeatedly referred to is the most fundamental rule of constitutional construction.

Debra_Law wrote:

With respect to the Fourth Amendment, you choose to be guided by the spirit of the constitutional provision and give it a broad construction -- a construction not necessarily intended by the "framers" as set forth in the actual language they used and the evil they sought to limit as amply discussed by Justice Black in his dissent in Katz. And yet, you insist the only way to interpret the Constitution is to ascertain the framers' intent.


Quote:
rules of the forum:

* Be specific
Few things are more intellectually irritating (not to mention worthless) than reading some uncautious and poorly thought out claim…

Perhaps you ought to quote my words to which you refer before making such comments. Then I might be able to respond.

Debra_Law wrote:

Therefore, I ask again the question that you keep avoiding. What interpretation of the Fourth Amendment do you embrace? Do you approve of the interpretation and application of the amendment set forth by the majority in Katz? or do you approve of the "framers' intent" interpretation set forth by Justice Black in his dissent in Katz?

I support whatever the intent was of the framers and ratifiers of the Fourth Amendment as ascertained by a review of the historical record giving birth to the amendment, and basing that intent upon a preponderance of the evidence.


Debra_Law wrote:

With respect to the Fourteenth Amendment, you insist on giving it an extremely narrow construction that would only protect former slaves and no one else despite the amendment framers' use of language that broadly includes all citizens and all persons within the jurisdiction of a state.


Post my words in which I insist as you have claimed. Fact is, I merely agree with the most fundamental rule of constitutional construction…which is to carry out the intent of the constitution as contemplated by those who framed it and the people who adopted it.

I even went so far as to provided you with numerous citations concerning this most fundamental rule, and even suggested that you consult Am Jur vol. 16, Constitutional Law, “Rules of Construction” starting with “Uniformity“ which begins:
Quote:

Constitutions do not change with the varying tides of public opinion and desire. The will of the people therein recorded is the same inflexible law until changed by their own deliberative actions. Thus, a cardinal rule in dealing with constitutions is that they should receive a consistent and uniform interpretation, so that they shall not be taken to mean one thing at one time and another thing at another time, even though the circumstances may have so changed as to make a different rule seem desirable. In accordance with this principle, a court should not allow the facts of the particular case to influence its decision on a question of constitutional law, nor should a statute be construed as constitutional in some cases and unconstitutional in others involving like circumstances and conditions. Moreover, the courts should never allow a change in public sentiment to influence them in giving a construction to a written constitution not warranted by the intention of its founders. [multiple citations omitted].


Unfortunately, instead of doing your homework, and learning the fundamentals of our constitutional system, and then engaged in an intelligent discussion, you prefer to misdirect the subject matter from a discussion concerning these rules, misdirecting it to your beliefs concerning how the constitution ought to be interpreted.


Debra_Law wrote:

I have made it clear that I am an advocate of liberty and equality. I believe the framers and ratifiers of our Constitution intended a broad construction of the language that they chose and approved in order to secure the blessings of liberty for ALL.

What you believe may very well not be what the framers and ratifiers intended.

Do you understand how the terms “liberty” and “equality” fit into our constitutional system? The term liberty, in general, refers to the unalienable rights of mankind which preceded the creation of government and are those freedoms which mankind may exercise in his natural state of being. Freedom of movement, freedom of association, freedom to acquire, own, utilize and dispose of property, and freedom to contract are some of the freedoms which together constitute “liberty” as mentioned in our constitutions, state and federal. However, there are intended restrictions on the meaning of “liberty” as used in our constitutions and those restrictions in general are to prohibit one individual in the exercise of their liberty from abridging the inalienable rights of another. For example, although people have an inalienable right to contract with each other, every individual has an inalienable right to refuse to contract with whomever they please, and so, contracting must be by mutual agreement. In addition, although two or more parties have an inalienable right to contract, they may not, under our constitutional system, contract in such a manner as would abridge the unalienable rights of another individual..

Indeed, our government was created to protect the unalienable rights of mankind and I would hope those who say they are an advocate of liberty would not waiver in protecting such rights within their intended constitutional meaning.


As to being an advocate of “equality”, perhaps you meant to say you believe in the equal application of the law, assuming that “the law” does not violate constitutional protections. In addition, and within the framework of our constitutional system, laws vary from state to state and although the people in one state may rightfully choose different law than another state, the people have agreed to such an allowance so long as state law does not violate a proscription contained in our federal constitution.

In any event, your statement concerning “equality” is far too broad for me to understand the context in which you intended to use the word.


Debra_Law wrote:

Depending on your agenda (and the result you desire), you are either an advocate of originalism (as evidenced by your narrow interpretation of the Fourteenth Amendment) or you are an advocate of the living Constitution (as evidenced by your expansive interpretation of the Fourth Amendment). It's your inconsistent stance on constitutional interpretation and your resulting hypocrisy that I abhor.


Now, how about being specific and quote my words from which you have gleaned the charge of hypocrisy.



JWK
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