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Thomas & Gorsuch Don't Believe In a Right to Privacy


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#1 LFC

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Posted 15 May 2018 - 12:47 PM

Interesting take. I would have thought Alito would have been on this train as well. If they get their way then welcome to the police state where the normal items in a modern life like cell phones, cars, computers, internet access, etc. may be wide open for searches to any level of law enforcement. What could go wrong?

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This week, in the case of Byrd v. United States, the Supreme Court ruled unanimously that a person driving a rental car has the right to privacy—that is, not to have the car searched without probable cause—even if he’s not listed on the rental contract. It’s an interesting case, especially for law students, but not earth-shattering.

But the short concurring opinion by Justice Thomas, which Justice Gorsuch joined, is a terrifying warning to anyone who cares about privacy in the age of digital surveillance.

“I have serious doubts about the ‘reasonable expectation of privacy’ test,” Justice Thomas began. At which point my eyes popped out of my head.

For more than half a century, the “reasonable expectation of privacy” has been a bedrock of Fourth Amendment law in the United States. It is what keeps us safe from arbitrary government searches in our cars, in schools, and everywhere else outside the home. It is the doctrine whose boundaries are continually tested in the world of Big Data. And it is apparently a principle doubted by two justices of the Supreme Court.

To be sure, the words “reasonable expectation of privacy” do not appear in the Constitution, which is what irks “originalists” like Gorsuch and Thomas. Rather, the Fourth Amendment states 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.”

That phrase covered the field in 1791. At the time, there were far fewer ways in which governmental searches might otherwise take place, particularly if you were the kind of propertied white male the text had in mind. And the Framers were clearly reacting against British army’s use of the “general warrant” to search people’s homes without any specific cause.

Well, times have changed. A crucial case this term, for example, is Carpenter v. United States. There, the question is whether the government needs a warrant to obtain a person’s location data from cellphone-tower records. It’s a close case, and it could go either way. But however it turns out, the “reasonable expectation of privacy” will be the standard the court uses—not some imaginary world in which the Founders knew about cellphones.

" 'Individual conscience' means that women only get contraceptives if their employers, their physicians, their pharmacists, their husbands and/or fathers, pastors, and possibly their mayors, Governors, State Secretaries of Health, Congressmen, Senators, and President all agree that in that particular case they're justifiable." --D.C. Sessions

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#2 DCoronata

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Posted 15 May 2018 - 12:51 PM

Ah yes, our authoritarian "patriots" of the right strike again.
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#3 Practical Girl

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Posted 15 May 2018 - 03:13 PM

No fan of Thomas. I can see the 4th and the right to be secure in their persons. I don't see a person who has no business driving a vehicle (no contract) having a good argument that the vehicle is in any way their house (residence) nor their "effects", within. Otherwise, what- everybody who steals a car is also protected by the 4th? Don't see it, but will listen to reason.
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--- On September 17, 1787, as Benjamin Franklin was leaving the deliberations of the Constitutional Convention, at Independence Hall, in Philadelphia, a woman called out to him, saying, “Well, Doctor, what have we got, a republic or a monarchy?”
“A republic,” Franklin said, “if you can keep it.”


--- LFC, on Gorsuch ruling: "Awesome. A Christianist who swore an oath to uphold the laws of the nation and bore false witness when he did it"

#4 LFC

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Posted 15 May 2018 - 03:48 PM

View PostPractical Girl, on 15 May 2018 - 03:13 PM, said:

No fan of Thomas. I can see the 4th and the right to be secure in their persons. I don't see a person who has no business driving a vehicle (no contract) having a good argument that the vehicle is in any way their house (residence) nor their "effects", within. Otherwise, what- everybody who steals a car is also protected by the 4th? Don't see it, but will listen to reason.

I'm reading two parts to what you're saying, one comparing a vehicle to a house and the other the issue of a stolen vehicle. I'll reply separately but let's look at the 4th's language first.

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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.

I think "persons, houses, papers, and effects" is deliberately very broad. In this case a person legally in their car or in their house has the same right against any search without cause. The word "effects" are things you own and not limited to things in your house. I see it as it not mattering whether it's a car, a house, a trailer, a boat, a storage shed, or a toolbox. They are all are covered by the 4th. If that isn't the case then the only things that the police can't search capriciously once you leave your home are anything you can hide on your person or perhaps in a purse or briefcase. That duality makes no sense to me at all.

On the second point of course you have no right to privacy when in a stolen car. The 4th makes it clear, however, that probable cause is required before stopping you. If that wasn't the case then regular stopping of luxury cars with black drivers is perfectly fine since no probable cause, or indeed any cause, is needed.
" 'Individual conscience' means that women only get contraceptives if their employers, their physicians, their pharmacists, their husbands and/or fathers, pastors, and possibly their mayors, Governors, State Secretaries of Health, Congressmen, Senators, and President all agree that in that particular case they're justifiable." --D.C. Sessions

"That's the problem with being implacable foes - no one has any incentive to treat you as anything more than an obstacle to be overcome."

"The 'Road to Serfdom' is really all right turns." --Progressive Whisperer

""The GOP ... where every accusation is also a confession." --Progressive Whisperer

#5 JackD

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Posted 15 May 2018 - 04:24 PM

And if there is no probable cause to stop the driver of the stolen car, there's no right to search just because the car is later found to be stolen. Fruit of the poisonous tree and all that.

#6 baw1064

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Posted 15 May 2018 - 06:23 PM

I'm waiting for some crackpot to claim that the Federal government has no right to regulate aviation or the radio spectrum.
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#7 D. C. Sessions

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Posted 15 May 2018 - 07:21 PM

View Postbaw1064, on 15 May 2018 - 06:23 PM, said:

I'm waiting for some crackpot to claim that the Federal government has no right to regulate aviation or the radio spectrum.

Just remember that with the possible exception of Thomas, nobody actually believes in originalism. It's just a convenient pretext for the outcomes you can't find any other to support.
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#8 Practical Girl

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Posted 16 May 2018 - 11:06 AM

View PostLFC, on 15 May 2018 - 03:48 PM, said:

I'm reading two parts to what you're saying, one comparing a vehicle to a house and the other the issue of a stolen vehicle. I'll reply separately but let's look at the 4th's language first.



I think "persons, houses, papers, and effects" is deliberately very broad. In this case a person legally in their car or in their house has the same right against any search without cause. The word "effects" are things you own and not limited to things in your house. I see it as it not mattering whether it's a car, a house, a trailer, a boat, a storage shed, or a toolbox. They are all are covered by the 4th. If that isn't the case then the only things that the police can't search capriciously once you leave your home are anything you can hide on your person or perhaps in a purse or briefcase. That duality makes no sense to me at all.

On the second point of course you have no right to privacy when in a stolen car. The 4th makes it clear, however, that probable cause is required before stopping you. If that wasn't the case then regular stopping of luxury cars with black drivers is perfectly fine since no probable cause, or indeed any cause, is needed.

I appreciate this, but still stand firm. This person wasn't listed on the rental contract. The petitioner wasn't, in fact, legally nor contractually allowed to drive it. Unauthorized drivers policies are spelled out in all car rental agreements. It isn't their car, but belongs to another entity. He had no "right" to expect much there. No driver's license. No place on the agreement.




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On September 17, 2014, petitioner’s girlfriend rented a Ford Fusion from an Avis Budget (Avis) car rental office in New Jersey. Pet. App. 10a. According to Avis’s policy, additional drivers may drive a rental car if they are (1) the renter’s spouse, (2) the renter’s co-employee, or (3) another person who appears in per- son at the time of the rental and signs an authorized driver form. C.A. App. 73. The rental agreement expressly provides that “permitting an unauthorized driver to operate the vehicle is a violation of the rental agreement.” Ibid. (capitalization omitted). Petitioner’s girlfriend paid for the rental car and was the only person to sign the rental agreement.


So- Petitioner had no legal right to be driving somebody else's car. Perhaps we can't call it stolen, but does the 4th Amendment, now, protect criminals from their crimes, when they have no legal right to any of the property they are in? Squatters are squatters, and I don't care what color. Is there a reasonable expectation of privacy, when you are in a place that you have no right to be?

​I'm not sure about "traffic stop". Eh- there are a hundred ways for police who are surveilling a known buy location to pull over. Is it reasonable stop? I don't know. But this was obviously a drop/buy point. I'm certain, completely surveilled. Sorry- this wasn't an innocent kid, out trying to cop a few milligrams for him and his girlfriend to make them well. This was a guy who had 49 bricks of heroin in his trunk, that he'd just bought-under surveillance. Street value is between $10 million and $30 million.

​Was it an unreasonable search? I doubt it, given the cameras.

I believe strongly in vigorous defense for accused. This ruling, though, goes too far.
Every woman needs a blowtorch.
---Julia Child


--- On September 17, 1787, as Benjamin Franklin was leaving the deliberations of the Constitutional Convention, at Independence Hall, in Philadelphia, a woman called out to him, saying, “Well, Doctor, what have we got, a republic or a monarchy?”
“A republic,” Franklin said, “if you can keep it.”


--- LFC, on Gorsuch ruling: "Awesome. A Christianist who swore an oath to uphold the laws of the nation and bore false witness when he did it"

#9 DCoronata

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Posted 16 May 2018 - 11:32 AM

View PostPractical Girl, on 16 May 2018 - 11:06 AM, said:


So- Petitioner had no legal right to be driving somebody else's car. Perhaps we can't call it stolen, but does the 4th Amendment, now, protect criminals from their crimes, when they have no legal right to any of the property they are in?

Sorry- this wasn't an innocent kid, out trying to cop a few milligrams for him and his girlfriend to make them well. This was a guy who had 49 bricks of heroin in his trunk, that he'd just bought-under surveillance. Street value is between $10 million and $30 million.

Okay, so this kid is transacting a deal worth conservatively 8 figures (not including the decimal point) and he's borrowing his girlfriend's rental car to do it?

Lock him up, throw away the key. Anybody stupid enough to be involved in such a potentially lucrative deal and not take every single conceivable precaution is too stupid to survive on the outside. His take on the deal must have been substantial- to go cheap when there's so much money at stake?
Ambassador Spock: "There's an old Vulcan proverb, that only Nixon could go to China, and only Trump could screw up North Korea."

“Well, Doctor, what have we got—a Republic or a Monarchy?”
“Do you believe we can trust you rabble with a Republic?"

#10 LFC

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Posted 16 May 2018 - 12:01 PM

View PostPractical Girl, on 16 May 2018 - 11:06 AM, said:

I appreciate this, but still stand firm. This person wasn't listed on the rental contract. The petitioner wasn't, in fact, legally nor contractually allowed to drive it. Unauthorized drivers policies are spelled out in all car rental agreements. It isn't their car, but belongs to another entity. He had no "right" to expect much there. No driver's license. No place on the agreement.

Let me follow up with this question. Imagine you're visiting a friend. Your friend has stepped out and you are in the house alone. The police show up for some reason and you can't prove you are a resident. Does that give them the right to come inside and search the house? Isn't this pretty much happened to Prof. Henry Louis Gates when police had no real cause to suspect him (except him being black and in a nice home)?

A different and more specific follow-up question concerns what law covers driving a rental car when you are not on the agreement. Is that a criminal act or is it a civil breach of contract? If the latter does that mean that a perceived breach of contract constitutes "probable cause" for a search?

My guess is that if they had contacted the rental car company who was allowed to drive the car they may have had more leeway. It seems like the name didn't match so they searched the whole vehicle. That seems to be the issue here.


View PostPractical Girl, on 16 May 2018 - 11:06 AM, said:

Sorry- this wasn't an innocent kid, out trying to cop a few milligrams for him and his girlfriend to make them well. This was a guy who had 49 bricks of heroin in his trunk, that he'd just bought-under surveillance. Street value is between $10 million and $30 million.

Let's be careful here. If you want to justify the legality of police methods by the results or the suspect not being "an innocent kid" then you're stepping into some serious Rudy Giuliani territory. "Hey, we got him. Nothing else matters." I say no thank you to that.
" 'Individual conscience' means that women only get contraceptives if their employers, their physicians, their pharmacists, their husbands and/or fathers, pastors, and possibly their mayors, Governors, State Secretaries of Health, Congressmen, Senators, and President all agree that in that particular case they're justifiable." --D.C. Sessions

"That's the problem with being implacable foes - no one has any incentive to treat you as anything more than an obstacle to be overcome."

"The 'Road to Serfdom' is really all right turns." --Progressive Whisperer

""The GOP ... where every accusation is also a confession." --Progressive Whisperer

#11 Practical Girl

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Posted 16 May 2018 - 12:54 PM

View PostDCoronata, on 16 May 2018 - 11:32 AM, said:

Okay, so this kid is transacting a deal worth conservatively 8 figures (not including the decimal point) and he's borrowing his girlfriend's rental car to do it?

Lock him up, throw away the key. Anybody stupid enough to be involved in such a potentially lucrative deal and not take every single conceivable precaution is too stupid to survive on the outside. His take on the deal must have been substantial- to go cheap when there's so much money at stake?

Not quite sure of your snark and sarcasm. What do you mean about "go cheap"? Dude didn't have either a car or a driver's license. What's a scammer to do? Hook in a woman...?
Every woman needs a blowtorch.
---Julia Child


--- On September 17, 1787, as Benjamin Franklin was leaving the deliberations of the Constitutional Convention, at Independence Hall, in Philadelphia, a woman called out to him, saying, “Well, Doctor, what have we got, a republic or a monarchy?”
“A republic,” Franklin said, “if you can keep it.”


--- LFC, on Gorsuch ruling: "Awesome. A Christianist who swore an oath to uphold the laws of the nation and bore false witness when he did it"

#12 LFC

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Posted 16 May 2018 - 01:05 PM

View PostPractical Girl, on 16 May 2018 - 12:54 PM, said:

Hook in a woman...?

Am I going to hell for this picture?

Posted Image
" 'Individual conscience' means that women only get contraceptives if their employers, their physicians, their pharmacists, their husbands and/or fathers, pastors, and possibly their mayors, Governors, State Secretaries of Health, Congressmen, Senators, and President all agree that in that particular case they're justifiable." --D.C. Sessions

"That's the problem with being implacable foes - no one has any incentive to treat you as anything more than an obstacle to be overcome."

"The 'Road to Serfdom' is really all right turns." --Progressive Whisperer

""The GOP ... where every accusation is also a confession." --Progressive Whisperer

#13 DCoronata

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Posted 16 May 2018 - 01:22 PM

View PostPractical Girl, on 16 May 2018 - 12:54 PM, said:

Not quite sure of your snark and sarcasm. What do you mean about "go cheap"? Dude didn't have either a car or a driver's license. What's a scammer to do? Hook in a woman...?
I was being sarcastic but still... We can assume this isn't his first time dealing and he knows there's got to be a nice payoff on this. If he's getting just one tenth of a percent street value, that's 10K for one job absolute minimum. And if the people who set this up are being frugal by hiring him, they lost millions of dollars of merchandise.

No wonder "crime doesn't pay", these guys are amateurs!
Ambassador Spock: "There's an old Vulcan proverb, that only Nixon could go to China, and only Trump could screw up North Korea."

“Well, Doctor, what have we got—a Republic or a Monarchy?”
“Do you believe we can trust you rabble with a Republic?"

#14 Practical Girl

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Posted 16 May 2018 - 01:23 PM

How could it, possibly, be true- Hell?
Every woman needs a blowtorch.
---Julia Child


--- On September 17, 1787, as Benjamin Franklin was leaving the deliberations of the Constitutional Convention, at Independence Hall, in Philadelphia, a woman called out to him, saying, “Well, Doctor, what have we got, a republic or a monarchy?”
“A republic,” Franklin said, “if you can keep it.”


--- LFC, on Gorsuch ruling: "Awesome. A Christianist who swore an oath to uphold the laws of the nation and bore false witness when he did it"

#15 LFC

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Posted 16 May 2018 - 03:03 PM

View PostPractical Girl, on 16 May 2018 - 01:23 PM, said:

How could it, possibly, be true- Hell?

Posted Image
" 'Individual conscience' means that women only get contraceptives if their employers, their physicians, their pharmacists, their husbands and/or fathers, pastors, and possibly their mayors, Governors, State Secretaries of Health, Congressmen, Senators, and President all agree that in that particular case they're justifiable." --D.C. Sessions

"That's the problem with being implacable foes - no one has any incentive to treat you as anything more than an obstacle to be overcome."

"The 'Road to Serfdom' is really all right turns." --Progressive Whisperer

""The GOP ... where every accusation is also a confession." --Progressive Whisperer

#16 Practical Girl

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Posted 17 May 2018 - 11:03 AM

View PostLFC, on 16 May 2018 - 12:01 PM, said:

Let me follow up with this question. Imagine you're visiting a friend. Your friend has stepped out and you are in the house alone. The police show up for some reason and you can't prove you are a resident. Does that give them the right to come inside and search the house? Isn't this pretty much happened to Prof. Henry Louis Gates when police had no real cause to suspect him (except him being black and in a nice home)?

Food for thought. But I think this is a lot clearer to 4th amendment than this decision. There are clear rights in ownership and leases, within guests.

Quote

A different and more specific follow-up question concerns what law covers driving a rental car when you are not on the agreement. Is that a criminal act or is it a civil breach of contract? If the latter does that mean that a perceived breach of contract constitutes "probable cause" for a search?

My guess is that if they had contacted the rental car company who was allowed to drive the car they may have had more leeway. It seems like the name didn't match so they searched the whole vehicle. That seems to be the issue here.

ME: Guessing isn't a strong suit here.What do you, possibly think, a rental car company would have said? "No. Not an authorized driver".

A man is picked up on a traffic stop. We can talk about the validity of that stop, but it isn't the issue at hand. The facts:

--- Petitioner was stopped
--- Petitioner was asked for identification and he rental agreement. He wasn't on it.
--- Police checked his interim DL. It was bogus- not his identity.His real identity revealed a history of guns/drug related charges
--- Police came back to talk with him about that, as well as asking for permission to search the car
--- Petitioner consented, although told that they didn't need his consent, since his name was nowhere on the contract.
--- Petitioner then began to cop to "small ball"- a blunt in the car, his recent cocaine use. Still consents
--- Officers search the car, find 49 bricks of heroin in the trunk
--- Petitioner attempts to flee on foot, to no avail.

I find this procedure to be fairly standard, in drug stops. This was a big one. I have suspicions that he turned State's evidence, as his charges- for that kind of weight- were fairly mild.

Quote

Let's be careful here. If you want to justify the legality of police methods by the results or the suspect not being "an innocent kid" then you're stepping into some serious Rudy Giuliani territory. "Hey, we got him. Nothing else matters." I say no thank you to that.

Dear LFC- please see above.

I think not you or I have one idea what really was going on here. He appears to be a mule, and seems to have acted as one. He could have been under watch, as could have been his partners on the other side. Eh? I don't know.

It is important not to conflate things. This case is not, in fact, about good stop/bad stop. We can talk abut that, but this isn't what we're talking about.

It's about whether or not a person has a right to privacy when pulled over in a car where he/she can claim no ownership/lease.

It seems very wrong, to just let somebody go when they have no right to the property. I think vehicles are a real pressure point. Good for this ruling. It tells all the mules, middlemen, dealers exactly how to get it and suppress the evidence.

Can't wait for the first bomber who figures this one out..

Love, Rudy
Every woman needs a blowtorch.
---Julia Child


--- On September 17, 1787, as Benjamin Franklin was leaving the deliberations of the Constitutional Convention, at Independence Hall, in Philadelphia, a woman called out to him, saying, “Well, Doctor, what have we got, a republic or a monarchy?”
“A republic,” Franklin said, “if you can keep it.”


--- LFC, on Gorsuch ruling: "Awesome. A Christianist who swore an oath to uphold the laws of the nation and bore false witness when he did it"

#17 LFC

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Posted 17 May 2018 - 02:43 PM

View PostPractical Girl, on 17 May 2018 - 11:03 AM, said:


All of these may be facts but the question is whether any allows automatic search of property (vehicle) when somebody is pulled over so it's doing nothing but mucking up the discussion of the actual law in the case unless you're pointing to one or more that explicitly allows police to perform a vehicle search. If none of the above matters one bit, as the majority of SCOTUS ruled, then it was a bad search (which is not the same things as a bad stop).


Quote

It is important not to conflate things. This case is not, in fact, about good stop/bad stop. We can talk abut that, but this isn't what we're talking about.

Agreed. If the stop was bad then the ruling would be on a different part of the law..


Quote

It's about whether or not a person has a right to privacy when pulled over in a car where he/she can claim no ownership/lease.

It seems very wrong, to just let somebody go when they have no right to the property. I think vehicles are a real pressure point. Good for this ruling. It tells all the mules, middlemen, dealers exactly how to get it and suppress the evidence.

"Seems wrong" has zero to do with the law and how it is written. You keep saying "no right to the property" but if this is merely a contract violation and no criminal law was broken then this is THE issue. That's what we're addressing here which is why I did not bring up whether or not the reason for the stop was good or anything else outside of when do the police have the right to search your vehicle in this case per the 4th Amendment. The majority of SCOTUS seems to have ruled this way.

Your position seems to be extensible into saying that anybody pulled over without proper documentation must automatically submit to a full search of their vehicle if police decide they want to do one. I don't get how a license or registration violation provides open season on the contents of the car which, following your position, would include wallets, purses, briefcases, phones, boxes, bags, backpacks, suitcases, and everything else in the vehicle. I find this to be a very dangerous thing to approve of especially when coupled with something like civil forfeiture. It's practically an invitation for abuse.


Now to get back to the REAL meat of the original post, Thomas wrote (and Gorsuch concurred) “I have serious doubts about the ‘reasonable expectation of privacy’ test.” This is a blanket statement that if implemented would open up police state surveillance way beyond where it's already gone. That should scare the shit out of you.
" 'Individual conscience' means that women only get contraceptives if their employers, their physicians, their pharmacists, their husbands and/or fathers, pastors, and possibly their mayors, Governors, State Secretaries of Health, Congressmen, Senators, and President all agree that in that particular case they're justifiable." --D.C. Sessions

"That's the problem with being implacable foes - no one has any incentive to treat you as anything more than an obstacle to be overcome."

"The 'Road to Serfdom' is really all right turns." --Progressive Whisperer

""The GOP ... where every accusation is also a confession." --Progressive Whisperer





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