Medical Marijuana

5 Most Unlibertarian Supreme Court Rulings Still Standing

Individual mandate doesn't even make the list!


Some bulwark.

James Madison envisioned the judicial branch of our government as "an impenetrable bulwark against every assumption of power in the legislative or executive." In reality, the U.S. Supreme Court has been more like a rubber stamp, allowing all manner of harebrained government schemes to survive despite their blatant conflict with the text of the Constitution.

Yesterday's dismal ruling in National Federation of Independent Business v. Sebelius was no exception. Not only did the Supreme Court vote to uphold ObamaCare's requirement forcing all Americans to buy health insurance, Chief Justice John Roberts even cooked up an insidious new way for Congress to run our lives via its vast powers to "lay and collect taxes." Where's Harriet Miers when you need her?

But don't worry, it gets worse. Here are the top 5 most unlibertarian Supreme Court rulings from the last 40 years that are still standing (and the individual mandate didn't even make the list!).

5. Miller v. California (1973)

A landmark First Amendment ruling and an official permission slip for moralists and censors ever since, this 1973 case reaffirmed the government's right to prohibit speech deemed to be obscene by replacing an existing vague and murky legal definition of obscenity with an all new vague and murky definition. The case involved Marvin Miller, a California man convicted in a lower court on obscenity charges for sending unsolicited sexually explicit pamphlets through the mail. When the Supreme Court reviewed the case, they agreed with the conviction, declaring that "obscene material is not protected by the First Amendment," but noting the difficulties in determining what exactly should count as obscene. The Court drew up new obscenity guidelines which instructed authorities to consider:

whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest

whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.

Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Problem solved? Hardly. The Miller test remains impossibly vague, and leaves it up to the arbitrary whims of judicial authorities to determine what sort of speech can be prosecuted under the law for being outrageous or offensive. A better reading of the First Amendment would make clear that the right answer is: none.

Next: Cops, prostitutes, cars.

4. Bennis v. Michigan (1996)

Nice car.

In September 1988 a Michigan couple named John and Tina Bennis bought a 1977 Pontiac automobile for the price of $600, which they split between them. Three weeks later, on the night of October 3, John was arrested by Detroit police after picking up a prostitute in the car and later charged and convicted of gross indecency. Sensing an opportunity, the county prosecutor turned to a Michigan statute allowing for the seizure of property used for the purposes of "lewdness, assignation or prostitution" and brought an asset forfeiture action targeting the car.

Because Tina Bennis was a part owner of the car and had been convicted of no crime, she innocently assumed her right to life, liberty, and property under the Due Process Clause of the 14th Amendment would prevent the government from robbing her of her ride. The U.S. Supreme Court saw things differently. "An owner's interest in property may be forfeited by reason of the use to which the property is put even though the owner did not know that it was to be put to such use," wrote Chief Justice William Rehnquist. By rejecting Bennis' "innocent owner" defense, the Supreme Court kicked the door open to even greater asset forfeiture abuse.

Next: The Fourth Amendment Under Fire.

3. Muehler v. Mena (2005)

Supreme Court rulings that have chipped away at the Fourth Amendment are a dime a dozen. From 1983's Illinois v. Gates, which drastically reduced the requirements for police to obtain a warrant based on an anonymous tip, to 2002's Board of Education v. Earls, which paved the way for public schools to require students to undergo drug tests before participating in intramural activities, Americans' civil liberties have taken a real beating from the high court in recent years.

Think of the children.

But a more recent case has even broader implications for the Fourth Amendment. In 1998 Iris Mena was handcuffed and kept in her garage for three hours while an 18-member SWAT team searched her home for a suspected gang member. Mena sued, saying that there was no need for officers to keep her in handcuffs once they had determined that she not a threat. She also claimed in her suit that the officers could have avoided destroying her property if they had permitted her to unlock door and cabinets. Additionally, the officers questioned Mena about her immigration status, despite the fact that she was not the target of the raid.

In 2005, the Supreme Court ruled 9-0* in Muehler v. Mena that the need for law enforcement officers to "take command of the situation" during a lawful raid on a residence or business outweighed Mena's concerns about being detained for an overly long time, or the destruction of her property. The majority also held that Mena being questioned about her immigration status was not a violation of her Fourth Amendment rights.

The dissenting justices held that keeping Mena, who stands 5-feet-2-inches tall, in handcuffs for three hours was excessive and that she should have been released immediately upon determining whether she was a threat to the officers.

In 2012, the Obama administration cited Muehler v. Mena in a brief to the U.S. Court of Appeals for the 9th Circuit in its defense of several DEA agents who roughly handcuffed two young girls—ages 11 and 14—during a wrong-door raid.

Correction: A previous version of this article incorrectly stated that the Supreme Court ruled 5-4 against Mena in Muehler v. Mena. The ruling was 9-0 against Mena, with four justices concurring. We regret the error. 

Next: Smoked out.

2. Gonzales v. Raich (2005)

Remember Roscoe Filburn!

According to Article 1, Section 8 of the Constitution, Congress possesses the power "to regulate commerce…among the several states." Yet in the Supreme Court's 1942 ruling in Wickard v. Filburn, the Supreme Court found the Commerce Clause pliable enough to forbid an Ohio farmer from growing and consuming a specific amount of wheat on his own farm.

Then the Court arguably made things even worse with its 2005 decision in Gonzales v. Raich, where it held that medical marijuana cultivated and consumed entirely within the state of California somehow still counted as interstate commerce and was therefore subject to the federal Controlled Substances Act. As Justice Clarence Thomas remarked in his dissent, "By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power."

You can also thank Raich for those federal raids on local medicial marijuana clinics that President Barack Obama once pretended he was going to stop.

Next: There goes the neighborhood.

1. Kelo v. City of New London (2005)

Are there any limits on government's authority to take property from citizens? The U.S. Constitution's Fifth Amendment seems to put pretty clear limits on the taking of "private property for public use" (with public use defined as projects such as railways and roads) and requires that owners deprived of their property must receive just compensation. That standard held up into the twentieth century, when a stream of court decisions began defining "public" downward and "blight" (one criterion for condemning private property) downward.

The 2005 Kelo decision completed that dreary progress. Justice John Paul Stevens ruled for the majority that a redevelopment agency in New London, Connecticut could seize homes of local families and give them to a private developer working with the Pfizer Corporation for a mixed-use plan dating to the 1990s. In a stinging dissent, Justice Sandra Day O'Connor noted that the Kelo decision overturned a judicial principal dating to 1798: A "law that takes property from A and gives it to B" cannot stand.

Stevens' decision still seems shockingly credulous and ill-considered seven years on. Kelo rejects any requirement that condemned property be put into public use, gives unlimited "deference" to politicians' economic judgments, and assumes the plan's "comprehensive character" and the "wisdom of the means the city has selected" would ensure against damaging private citizens for no public purpose.

In the end, though, Pfizer abandoned the project and the Fort Trumbull neighborhood, cleared of its houses, literally became a garbage dump. New London was made poorer, and although some states responded to the ruling with piecemeal efforts to rein in eminent domain abuse, Kelo's most important precedent has been to enshrine the unrepentant Stevens' legacy as an economic dullard and second-rate legal thinker.

NEXT: William Shatner Pantsed by TSA

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  1. Hey – thanks for adding a heaping helping of “FUCK!” onto an already-shitty Friday!

    Yeah, I know – I read it of my own volition.


    /old time’s sake

    1. Nah, with Balko’s stories I was always angry, this one makes sad.. emo I’m-gonna-cut-myself-with-my-Depeche mode-records-on sad.

      1. When I first read that I thought you were going to cut yourself with your DM records.

        Which would be impressive.

    2. You know, I try hard to not throw in the towel about your country. But when I read stuff like this, man, you’re screwed. Liberty really is dead. Over to Tony…

  2. lol, those kangaroo court judges are clearly bought and paid for, like any other politicians.

    1. I am always a litte concerned when the ‘bot’s comments are even a little on topic.

      1. They’re getting smarter

      2. They seem to just repeat HuffPo talking points from 2 days ago.

        1. Uh-oh Skynet is a progressive.

          Guess exterminating humanity with nuclear weapons wasn’t about self-defense, it was about stopping the rape of Gia.

          1. Skynet’s not stupid, you know. It’s not going to nuke anything, seeing how most of its hardware is located in centers of human population.

            Judgement Day will come when Skynet can get its hands on enough bio-weapons to wipe out the people without damaging any of its architecture. It will also allow Skynet to take us down without wiping out any other species, the way a nuke strike would.

  3. Constitution? That’s old, and crusty. It has no relevance today.

  4. Korematsu must be included in such a list.

    1. Abrams should be here too.

    2. So it’s still standing precedent? Damn.

  5. Five nails in the coffin of federalism.

    1. What do another five nails mean in the proverbial coffin that is already thoroughly sealed shut, entombed in concrete, and guarded 24/7 by armed “peace officers”?

      1. Sigh. I don’t want to live on this planet anymore.

      2. David Blaine for President?

  6. I like this article, “5 Most Unlibertarian Supreme Court Rulings Still Standing”.

    Say, what is the reason’s staff’s opinion on the “Most libertarian Presidential candidate”?

    I’m interested!

    1. Ron Johnson? He’s dreamy!

      1. Nah, that’s Ron Jeremy you’re thinking of.

        1. No, He’s hairy!

  7. Late to the meme thread, but here’s my contribution:…..724774.jpg

  8. How is Wickard not on this list?

    1. Looks like it got subsumed into Raich.

      1. Weed trumps wheat in some circles.

        1. At least weed doesn’t take up precious gamboling space from opponents of City-Statism.

        2. Wickard is even more egregious than Raich. Some people may object to intoxicants (not that I do), but the idea that the feds can stop you from growing wheat on your own farm for your own animals is utterly ridiculous.

          1. As a purely constitutional matter, Raich was worse. At least in Wickard there was a legal market that the government was regulating; in Raich there isn’t even supposed to be a market.

            1. Well, except that the wheat in question wasn’t “in” the market except in the tortured sense used by the majority, and pot is already illegal. But that does raise the question: is there a Constitutional authority for banning drugs?

              1. I still can’t find where the Constitution gives authority for regulating intrastate commerce, much less intrafarm commerce. Betcha that drug power is right next to it, hidden in the shadow of the magic unicorn.

                1. It’s in the same part of the Constitution that specifies how executive privilege works. You have to use those super-special glasses from that Nicolas Cage movie to read it, though. That’s why almost no one outside the Supreme Court, the media, and our elected officials are aware of that section’s existence.

                  1. Executive privilege comes from common law.

              2. But that does raise the question: is there a Constitutional authority for banning drugs?

                I find it extremely amusing that it was a given that prohibition required a constitutional amendment, yet somehow banning pot (pick a drug) didn’t.

                1. Those constitutional powers lie right alongside the powers of qualified immunity and absolute immunity that make our legal system work smoothly.

                  As for the latest addition: who knew The Beatles weren’t being hyperbolic when they worried about the tax man taxing your feet.

                  1. Again, those arise from common law, not the Constitution.

              3. Someone could argue that the “Republican Form of Government” clause gives them authority to regulate drugs, because if everyone’s on drugs, how can you have a government by the people?

      2. Makes sense.

    2. Article says “of the last 40 years.”

  9. Bennis v. Michigan (1996) I thought that Seinfeld episode was in the small town of Latham, Massachusetts?

  10. Note that John Paul Stevens wrote the majority opinion in both #1 and #2.

    And technically Dred Scott v Sanford is still standing.

    1. No, it was overruled by the 13th Amendment as to slavery, by the 14th Amendment as to citizenship, and by Mormon Church v. US (1890) as to Congressional power int he territories –…../case.html

    2. Wasn’t Dred Scott v Sanford decided libertarianly but on the wrong type of property? Humans should never have been property, but if you have property and move it through a place that does not recognize it as property, it is still your property anyway?

      1. You’re right, but that’s like saying that [Godwin edit] believed in human rights but simply had a slight disagreement with other people about the humanity of the Jews.

      2. Dred Scott went further than that; it said that African descended people could never become citizens, and the federal govt could not ban slavery in the territories.

  11. With the site’s current hatred of judicial restraint I expected to see Buck v. Bell here.

  12. Ron Paul would say “Brown vs. Wade”.

    1. Never heard of it.

  13. …as an economic dullard and second-rate legal thinker.

    Now that’s how you end an article about the United States Supreme Court.

    1. Although this time, Roberts, not Kennedy gets the dunce cap.

  14. “Justice Sandra Day O’Connor noted that the Kelo decision overturned a judicial principal dating to 1798: A “law that takes property from A and gives it to B” cannot stand.”

    What else do they do?

  15. Bennis and Raich are good picks. But I don’t agree with Kelo at #1.

    Better choices:
    Korematsu, Wickard, Beauharnais v. Illinois, Miller v. Schoene (my least favorite case of all time), Williamson v. Lee Optical

    1. Miller v. Schoene sounds just like Kelo. I’m guessing that was cited as precedent in the Kelo case. Sounds just like it.

      1. Somewhat but I’m personally a lot more offended by the analytic reasoning in Miller v. Schoene. The Court there basically said that the legislature wasn’t even engaged in a taking property when it passed the law requiring the cedars to be cut down. In Kelo at least they acknowledged that a taking was going on.

  16. I must admit a lack of familiarity with the details of Miller v. California, but really, what is unlibertarian about opposing sending unsolicited porn to people who don’t want to view it? Since when does the 1st Amendment guarantee a medium through which a message may be forced upon unwilling recipients? What is the libertarian argument here? “If you don’t like it, don’t check your mail”? Obviously if this was material being brought to market and consumed by willing participants then the standard libertarian thinking would apply. But it’s the difference between exposing yourself to a consensual sexual partner and exposing yourself to non-consenting kids at the park. I’d like to think libertarianism can differentiate between the two.

    1. Miller is unlibertarian not so much in the facts of the case itself but that it carved out the obscenity category of unprotected speech. And its test inherently relies on the moral disapprobation of society. So it is used all the time now even where there is no unconsenting party. Poor Max Hardcore:…..osecutions

      1. Ahh, okay, I gotcha. In that sense I can understand the criticism, although it sounds like it basically just expanded an existing legal concept (obscenity).

        Still, there is some question in my mind as to what sort of material one should be allowed to distribute unsolicited, even from a libertarian perspective. Although all told, I guess the advertisements for dick enhancements and tentacle rape porn I’ve been inundate with since I was old enough to use a computer haven’t really caused me any actionable harm.

      2. Since he has been out of prison, he says in a February 2012 Interview that he “…wants to do good in the world…” and has gone back into the porn industry.


  17. Huffington Post is still attacking the 4 Justices who dared disagree with the mighty Obama. Headline on the front page is “Inside the Conservative Justices’ Frightening Dissent.”…..34514.html

    In other news, HuffPo finally got around to noticing the Colorado fires…but only long enough to focus on Obama’s campaign trip:…..37065.html

    I’m surprised they haven’t put anything about the fires on the Obama Event Registry yet. “Why donate to people who need it when Obama wants your money?”

    1. Well, they went overboard with “frightening” but at least they call out Scalia’s hypocrisy on Raich.

      The Court’s opinion in Raich pointed out that the growing and possession prohibitions were the only practicable way of enabling the prohibition of interstate traffic in marijuana to be effectively enforced.

      Hey, Scalia. It doesn’t matter if restrictions make the government’s “job” harder. That’s what they’re supposed to do. The government wants more power to make it easy to do “its job” but its real job is to stay out of intrastate commerce/noncommerce.

  18. Jesus fucking christ you can’t put this much rage-inducing bullshit in one article! Im way too made to get anything done for the rest of the day. Reason once again kills my workplace productivity.

  19. Of the four cases that were in their term, Scalia was on the wrong side three times and Thomas was twice. Why are they considered Originalists?

    1. Because of statists like Breyer.

  20. I think that Whren v US should rank right up there. Whren explicitly allows pre-textual stops. As long as the cops pull you over for a valid reason, their own subjective intent (such as trying to search the car for drugs) is irrelevant. So now cops follow cars waiting for some minor traffic offense to initiate a traffic stop.
    Leon is also a really unlibertarian decision. Leon is the good faith exception – if cops get a warrant, then courts will do little if anything to review the warrant to suppress evidence.
    The Slaughterhouse Cases are really bad, too. There are whole reams of articles from both sides of the political fence on how bad those cases are.
    I think you should re-do this list and make it a top 10, well, bottom 10, list.

    1. I find it difficult to believe Slaughterhouse wasn’t #1. That just gutted the whole ‘privileges and immunities’ clause.

  21. Korematsu, then Wickard v. Filburn have to be #1 and #2 on the list, even ahead of Kelo v New London.
    The Wickard decision was a destructive precedent to Gonzales v. Raich.
    And, has Buck v. Bell ever been overturned? Of course it was Godwined in the movie Judgment at Nuremberg.

    1. Judgment at Nuremberg belongs over in the Shatner thread.

  22. Originalists tend to be rather deferential to the executive and legislative branch, and oft times to the majority at the expense of the minority… often libertarian by accident rather than design

  23. with regard to property rights, there were far worse cases than Kelo, and if the only issue is a loosey goosey definition of public purpose, then it’s only sort of libertarian.

  24. Miller v. California, 1973, was on of the five worst decisions. Ah, I see.

    You can measure the difference between cosmotarians by asking this question: “Name the most horrible Supreme Court decision of 19733 – a decision which has tainted the country to this day.” Cosmos say, “Miller, of course, that censorship-friendly horror!”

    1. Between cosmos and paleos.

    2. Spare me the fucking kultur-war BS. This type of injection of personal values into the political philosophy, of both left and right, of trying to make distinctions–some of which are irreconcilable with the philosophy–(e.g. the feminist-libertarinism on the left), is what kills libertarianism. In truth there’s no such thing paleo-libertarianism or oft pejorative cosmotarianism or any such left/right dinstinctions. There’s only libertarianism, pure and simple. Even the NAP itself may not quite sufficient to encapsulate libertarianism as the principle itself is just a corollary of a more fundamental principle.

      Anyways, I think the list could certainly be bigger than just top 5 if you start to consider individual cases (then again, how much rage can you take) but Miller should definitely be included in the list, especially egregious are the disproportionate punishments of laws utilizing obscenity (usually, the less people affected, the more severe the punishment). And to be clear, it doesn’t actually censor anything. It’s insidious nature is precisely because it cannot actually proscribe anything specific. In addition, it is often applied with the commerce clause (even without actual inter-state commerce), so it bears some relation to the other cases of Raich and Filburn as another example of its twisted interpretation.

      What I think is missing from this list is the Civil Rights Act though and all the property rights violations and creating new classes of crimes.

      1. “In truth there’s no such thing paleo-libertarianism or oft pejorative cosmotarianism or any such left/right dinstinctions. There’s only libertarianism, pure and simple.”

        Even if true, there is such a thing as a *cosmolibertarian,* even if purity forbids us from considering that he actually has a coherent philosophy. And there is such a thing as a paleoliberarian.

        Even the dating sites are noticing this:…..bertarians

        1. To list all the worst anti-liberty decisions of the Supreme Court, and to have the 1973 entry be Miller, is like if I drew up a list of “tragic and shocking deaths in history” and my only entry under November 22, 1963 was the death of C.S. Lewis, saying nothing about JFK.

    3. paleo and cosmo agree on Miller, disagree on Roe. So Miller wins. (

      and I’m pro-life btw.

      1. Then I guess it’s Miller time?

  25. How is Marbury V. Madison not on this list? Supreme Court giving itself the last word on the Constitution sounds pretty un-libertarian to me. Why no rulings from more than 40 years ago?

    1. Because judicial review works in (lower-case “l”) libertarians’ favor exponentially more times than it doesn’t? The Supreme Court very rarely gives Congress or the President or state/local governments powers that those entities aren’t already claiming. People shriek about Wickard, but Wickard was merely the Supreme Court approving a law Congress had already passed and the President had already signed into law. In other words, if judicial review hadn’t existed at all, the exact same outcome would have occurred. But if you don’t believe me, feel free to move to the well-known libertarian paradise of the U.K., where judicial review is substantially weaker than in the U.S.

      1. Note that the Supreme Court considers the constitutionality of law exponentially more often after it is passed by Congress and signed by the President. If it could weigh in with not only judicial review but also judicial restatement of the law’s actual effect (John Roberts-style), before the Congress voted or the President signed, we might all be better off, at least by having fewer laws on the books.

        1. His point is that after an unconstitutional law is passed, there’s nothing to stop it short of judicial review.

  26. Kelo truly falls in the stranger than fiction category. You would think, that at least in that one case, the landmark case, decided by none other than the highest court ON EARTH, the project wouldn’t end up going south, so utterly, and completely. The development would be done, with shiny new buildings to which state-power apologists would point, exclaiming how beneficial the decision had been. But that didn’t happen, and what did, Rod Serling really couldn’t have written any better.

    1. Now you made me think of Burgess Meredith, groping around the garbage dump on his hands and knees, looking for his broken glasses. See what you’ve done! It isn’t fair! It isn’t fair!

  27. Its pretty hard to argue with this list, either in its citations or the order in which they are ranked. I might swap 1 and 2, but both are severely heinous. Also, although you gave proper salute to Wickard v. Filburn in your coverage of Raich, one might argue that the former, as a linchpin ruling for uncounted commerce clause abuses that rely upon it, including Raich, deserved its own place in the list. The Raich decision, however, entailed particular callousness toward an actual, suffering person, so I can see why, if you could only put one on the list, you chose that one. Nice read. Thank you.

  28. Did the SCOTUS ever actually reverse Korematsu vs. U.S…?

    1. They rely on it, but in an ironic way. The message they take from Korematsu is that racial discrimination by the feds is almost always wrong, to be permitted only in the most serious situations.

      It was Congress, not the Supreme Court, that renounced the Japanese exclusion/internment program many years later.

      1. Korematsu is important because it takes judicial deference (especially during wartime) to the acts of co-ordinate branches to such an extreme that it renders the protections of individual rights under the constitution to be illusory. When push comes to shove, the one institution (the judiciary) that was to speak on behalf of and protect liberty (properly conceived of as an individual concept, not a collectivist one) failed to function (in many people’s views, out of fear that they would lose institutional power because they would be simply ignored due to the exigencies of war). In my opinion, a constitutional crisis is better than failing to respect foundational principles of liberty, because you establish that notwithstanding the executive and/or legislative justifications, history and future generations can say, “ok, that was wrong”. At a certain point, the court has to stand for more than its institutional power, but instead their raison d’etre.

  29. We have indeed witnessed history this week. Every few generations, the “go-to” justification for increasing government power becomes tired and impotent, and must be replaced by something fresher and more vital. As the General Welfare clause gave way to the the Commerce clause, so now the latter gives way to the Power to Tax, ameliorated by behavior-inducing rebates. If this bad trend can possibly be nipped in the bud, we will have to find a way to repeal the 16th Amendment, and quick. Mark my words…

  30. Problem solved? Hardly. The Miller test remains impossibly vague, and leaves it up to the arbitrary whims of judicial authorities to determine what sort of…..-c-15.html speech can be prosecuted under the law for being outrageous or offensive. A better reading of the First Amendment would make clear that the right answer is: none.

  31. Es un buen puesto! Gracias por tu buen trabajo, me ayuda mucho! Voy a volver otra vez! lunettes de soleil ray banCapacidad de la escritura reative me ha inspirado. En realidad el art?culo se est? extendiendo sus alas r?pidamente.

  32. The silver lining to Kelo was that it pissed off a whole lot of people and got them to pay more attention.

  33. Are there any countries for libertarians left?

    1. Someone suggested Somalia once.

  34. this piece shows how scary it is on the federal level, and why one should choose carefully the state one lives in. state law can’t restrain the feds, but it restrains the state/local cops to a far greater extent than the 4th does (specifically state const. law decisions.)

    choose your state wisely. i chose WA, which having a right to privacy in our version of the 4th amendment, places FAR greater restraints on cops.

  35. What are the 5 most libertarian SC rulings still standing?

    1. Sackett v. EPA

      1. Yeah, the EPA can’t fine a comedian just because it doesn’t like his jokes. Or is that Bob Saget?

  36. Yesterday’s dismal ruling in National Federation of Independent Business v. Sebelius was no exception. Not only did the Supreme Court vote to uphold ObamaCare’s requirement forcing all Americans to buy health insurance, Chief Justice John Roberts even cooked up an insidious new way for Congress to run our lives via its vast powers to “lay and collect taxes.” Where’s Harriet Miers when you need her?

    1. New way? Where have you been the last 80 years or so?

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