Publius-Huldah's Blog

Understanding the Constitution

What Criminal Laws are Congress Authorized To Make?

CONGRESS’ POWERS TO MAKE CRIMINAL LAWS

By Publius Huldah

1. The Constitution grants to Congress only limited powers to make criminal laws. These powers fall into five categories: a) those made pursuant to express authorizations for four specific crimes; b) those made under the “necessary and proper” clause; c) those made for the few tiny geographical areas over which Congress has “exclusive Legislation”; d) those governing the military; and e) those made pursuant to two of the Amendments to the Constitution.  Let’s look at each category:

a) Art. I, § 8 grants to Congress authority to define & punish counterfeiting, piracies and felonies committed on the high seas, & offenses against “the Laws of Nations”. [1] Article III, §3 grants to Congress a restricted power to declare the punishment of Treason.

b) Art. I, §8, last clause, grants to Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution …all …Powers vested by this Constitution in the Government of the United States…”.  This necessary and proper clause allows Congress to make criminal laws when necessary to enforce powers vested by the Constitution in the federal government.   This worried people, so Madison & Hamilton explained it:

In Federalist No. 44, Madison said, regarding the peoples’ fears of usurpations by Congress:

what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution and exercise powers not warranted by its true meaning, I answer the same as if they should misconstrue or enlarge any other power vested in them…the success of the usurpation will depend on the executive and judiciary departments, [2] which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers (17th Para).

In Federalist No. 33, Hamilton cited Art. VI, cl.2, as showing that laws which are not pursuant to the Constitution are merely acts of usurpation and deserve to be treated as such (7th Para).  He also said:

If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. (6th Para)

So! Congress has authority under the necessary and proper clause to make criminal laws enforcing the “Taxes, Duties, Imposts and Excises” authorized by Art. I, §8, cl.1; to make criminal laws prohibiting the filing of false statements or claims in Bankruptcy Court (Art. I, §8, cl. 4); and to make criminal laws forbidding the importation of slaves after 1808 (Art. I, §9, cl. 1).  Article II, §4 mentions impeachment of civil officers for, among other things, “bribery”; so by implication, Congress is authorized to pass a criminal statute prohibiting the accepting of bribes by civil officers of the United States.  The main duty of the federal judiciary created by Art. III is to conduct trials [in the limited category of cases which they are permitted to hear], and that means parties & witnesses. Parties & witnesses must be required to tell the Truth.  So, it would be necessary and proper for Congress to make laws declaring perjury and lying under oath in federal court criminal offenses.

These examples are not exclusive – there are doubtless additional criminal laws which would be appropriate exercises of the necessary and proper clause.  But it is important to note that private citizens would rarely, if ever, be in situations where these criminal laws would apply to them!

c) Article I, §8, next to last clause, authorizes Congress to exercise “exclusive legislation in all Cases whatsoever” over small defined geographical areas: the seat of the government of the United States [not to exceed ten squares miles], forts, dock-yards, magazines, arsenals, and the like.  As Madison said in The Federalist No. 43 (4th –6th Paras), it is necessary for the government of the United States to have “complete authority” at the seat of government, and over forts, dock-yards, etc.  This means that over these limited geographical areas, Congress has authority to make the full range of laws criminalizing murder, robbery, extortion, arson, rape, kidnapping, etc.  It is important to note that private citizens would not be affected by these laws unless they are inside the District of Columbia, military bases, dock-yards, and the like. [3]

d) Article I, §8, cl. 14 authorizes Congress “To make Rules for the Government and Regulation of the land and naval Forces.”  Under this grant of authority, Congress has properly enacted The Uniform Code of Military Justice, the criminal code which governs members of our military forces. This covers all the “standard” criminal offenses plus additional crimes uniquely appropriate to those in the military: failure to obey a lawful order, dereliction of duty, absent without leave, desertion, conduct unbecoming an officer, etc.  Again, it is important to note that civilians are not affected by the criminal code which governs our military forces.

e) Some of the Amendments to the Constitution authorize Congress to enact laws to enforce them: The 13th Amendment would authorize Congress to make laws criminally punishing those who keep slaves.  The 16thAmendment presumably authorizes Congress to make criminal laws to enforce the “income” tax.  The 18th Amendment (now repealed) authorized Congress & the States to make laws criminally punishing those who manufactured or trafficked in intoxicating liquors. The 14th, 15th, 19th, 24th, & 26th Amendments restrict only States &/or the federal government. The other Amendments (after the original Ten) address “housekeeping” issues.  So, Congress’ criminal jurisdiction over private citizens under all Amendments is limited to those who keep slaves or don’t pay “income” taxes (whatever “income” meant when the Amendment was adopted).  Estate and gift taxes are not authorized by the Constitution.

2. So! Much of the federal criminal code of today consists of “laws” which are mere usurpations and deserve to be treated as such.  They are not “laws”, because they are outside the legislative powers granted to Congress by the Constitution.  Excepting members of the military, and outside the tiny geographical areas (the District of Columbia, military bases, dock-yards, etc., and any Territories) where Congress has “exclusive legislation”; Congress has no general authority to pass criminal laws.  Thus, laws which purport to be of general application throughout the several States criminalizing acts respecting firearms, ammunition, hate crimes, environmental crimes, economic crimes, banking crimes, computer crimes, murder, kidnapping, narcotics, arson, extortion, etc. etc., etc., etc., etc., are all unconstitutional usurpations.

Lest you think this is astonishing, remember that before the 18th Amendment was ratified in 1919, everybody knew that Congress didn’t have the power to make laws criminalizing the manufacture or distribution of intoxicating beverages!   Congress needed an Amendment to the Constitution to authorize them to make the laws giving effect to prohibition!   But today, Congress is lawless & filled with usurpers; and the federal prisons are filled with inmates convicted under unconstitutional laws.

Do we have a remedy for these usurpations by Congress?  YES! As Madison, quoted above, said,

the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts.

Thus, when Congress makes a criminal law for which it lacks constitutional authority, the Executive Branch (in the person of the U.S. Attorney) has the power & duty to refuse to prosecute the violation.  If that check fails, the Judicial Branch has the power to declare the statute unconstitutional. [4] If the U.S. attorneys and federal judges both fail in their obligations to enforce the  Constitution, Madison said, as quoted above,

…in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers…

Hamilton said, as quoted above,

If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.

Did you get that? Hamilton said that when our ”creature”, i.e., the federal government, usurps power, WE are to judge the conduct by the standard of the Constitution, and WE are to take appropriate action to “redress the injury done to the Constitution”!  This includes demands for impeachment, recall petitions, defeating faithless representatives in the next election, nullification by states, jury nullification, non-violent civil disobedience, ignoring unconstitutional “laws” because an unconstitutional  “law” is  a “mere usurpation and deserves to be treated as such” ; and the like.

Alexander Hamilton considered the people to be “the natural guardians of the Constitution”; and contemplated “a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.” (The Federalist, No. 16, 10th Para). [5] One expects Hamilton would be disappointed in “the People” of today. [6] It is OUR responsibility to learn the Constitution, to educate the people in our spheres of influence, and to take this country back from the faithless usurpers who have betrayed us.

3. Did the Framers of the Constitution advocate anarchy?  No way!  The legislatures of the States have whatever authority granted to them by their State Constitutions to enact criminal codes applicable to those within the borders of their States.  Madison said it all in Federalist No. 45 (9th Para):

The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and internal order, improvement, and prosperity of the State.

It is up to the States to enact the criminal codes which apply to the people within their borders.

Publius/Huldah  July 4,  2009


[1]Webster’s American Dictionary (1828) defines “laws of nations” as, “the rules that regulate the mutual intercourse of nations or states.  These rules depend on natural law, or the principles of justice which spring from the social state; or they are founded on customs, compacts, treaties, leagues and agreements between independent communities.”

Here is one example of a “law of nations” based on custom: From antiquity to modern times, envoys between warring armies have been entitled to safe conduct while on their missions.  In the [excellent!] movie, “300”, it was a shocking thing when the Spartan King, Leonidas, killed the envoys of the Persian King Xerxes.  Our concept of “diplomatic immunity” is thus an ancient one.

[2] Madison here illustrates checks which the Executive & Judicial Branches have over Congress. We all know that Courts may declare an act of Congress unconstitutional; but most don’t know that the President should refuse to enforce an Act of Congress which the President, in the exercise of his thoughtful & independent judgment, deems unconstitutional.  The President’s Oath is to “…preserve, protect and defend the Constitution…” (Art II, § 1, last cl.).  It is not to “go along with” Congress – it is not to “obey” the Courts. The President must make his own independent determinations.  He may not properly abdicate this duty in favor of another Branch! The Executive Branch is to function as a check on the other two!  The check on the President is impeachment & removal from office.

[3] Article IV, §3, cl. 2 also granted to Congress authority to dispose of and make all needful Rules and Regulations respecting the Territories belonging to the United States [such as the Western Territories before they became States - Federalist No. 43, 11th Para].  This gave Congress authority to make the full range of criminal laws to govern those Territories until such time as they became States.  When they became States, jurisdiction to enact criminal laws would be transferred TO the new State.

[4] It is the responsibility of defense counsel to raise the issue of the unconstitutionality of the statute under which defendant is charged.  But lawyers, like everybody else in our modern culture, have been indoctrinated into statism; and like everybody else, are often unaware that Congress must be authorized by the Constitution to enact a criminal law before the law is valid.  The judge has an independent responsibility to raise the unconstitutionality of the statute; but like defense counsel and everybody else, they often don’t know that Congress must have constitutional authority for their Acts.

[5] Hamilton also knew that “an illegal usurpation of authority”, to be successful, “would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people.” Federalist No. 16, 10th Para.  [emphasis added].   Thus, the people, as the natural guardians of the Constitution, have a duty to protest when the authorities act lawlessly!  If they don’t, they will suffer the consequences, as in Europe during the last century &, as we may soon see, in our own once blessed country.

Warning! The following contains explicit religious content which may be highly offensive to some:  This obligation to protest lawlessness reflects the covenantal nature of civil government as established in the Bible (See David’s covenant at 1 Chron 11:1-3 & 2 Sam 5:1-4; Joash’s (via the priest Jehoiada) covenant at 2 Kings 11:17 & 2 Chron 23:16; and Josiah’s covenant at 2 Kings 23:1-3). Out of this covenantal relationship arises the peoples’ obligation to protest lawlessness.  If they don’t protest, God punishes the people because of the misdeeds of their “kings”.  See, e.g., 2 Sam 21, which tells of God’s sending a 3 year famine because Saul put the Gibeonites to death; 1 Chron 21 & 2 Sam 24, which tell of the pestilence which killed 70,000 Israelites because David took the census; 1 Kings 16:29-33, 17:1, 18:1, 18:17-19 which tell of the reign of Ahab & Jezebel and the famine God (via Elijah) sent because Ahab & his house had forsaken the commandments of the Lord; 2 Chron 21:1-14, which tell of King Joram and the heavy blow God struck at Joram’s people because of Joram’s wickedness; and 2 Kings 21:10-17 & Jer 15:3-4 which tell of the four dooms God visited upon Jerusalem & the S. Kingdom because of the sins of Manasseh.  If the Germans had protested Hitler in a timely fashion, millions of lives would have been spared.  Will we make the same mistake?

[6] Hamilton contemplated “…the most vigilant and careful attention of the people…” (Federalist No. 23, next to last Para).  In speaking of power disputes between the federal and state governments, Hamilton said that if the rights of the people “…are invaded by either, they can make use of the other as the instrument of redress.” (Federalist No. 28 7th Para).

June 29, 2009; revised April 16, 2011

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June 29, 2009 - Posted by | Criminal Code (US), Enumerated Powers of Congress, Necessary and Proper clause

30 Comments »

  1. […] Constitution authorizes Congress to make criminal laws respecting counterfeiting, treason, accepting bribes, and piracy & other felonies committed on […]

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  2. […] Constitution authorizes Congress to make criminal laws respecting counterfeiting, treason, accepting bribes, and piracy & other felonies committed on […]

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  3. […] What Criminal Laws are Congress Authorized To Make? […]

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  4. […] What Criminal Laws are Congress Authorized To Make? […]

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  5. “Estate and gift taxes are not authorized by the Constitution.”

    Of course they are. Both taxes are excises, which are specifically authorized by Article I, Section 8, Clause 1 of the Constitution. The estate tax is an excise on the transmission of property at death, and the gift tax is an excise on the inter vivos transfer of property. The first federal legacy tax was enacted by Congress in 1797.

    Comment by Mertensv16 | March 6, 2013 | Reply

    • Mertensv16:

      1. Go to the Federalist Papers and find out: What was the original understanding of an “excise” tax? What did our Framers & those who ratified The Constitution understand it to mean? Here is on online edition with a searchable text: http://www.foundingfathers.info/federalistpapers/

      You will find that our Framers and those who ratified the Constitution understood an excise to be a tax on articles of consumption.

      2. You have been misled about the Tax Act of 1797. When I was looking for the actual act, I too saw sites claiming it was a tax on estates. But that is not true. B/c of the constant lying to which we are subjected, you must always go to the original source documents and see what they actually say.

      Here is the link to the original Stamp Act of 1797: The tax was on vellum, parchment, and paper – all articles of consumption: http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=650

      On Dec. 15, 1797, Congress passed another act postponing the effective date of the above: http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=659

      And they amended it again in 1798.

      You are a lawyer, so you won’t have any trouble reading these original source documents and understanding what they actually say.

      I do not accuse you of lying – but I suggest that you have repeated what you have been told w/o checking it out for yourself.

      Comment by Publius Huldah | March 6, 2013 | Reply

  6. [...] a naturalized citizen and the procedures fornaturalization (Art I, Sec 8, cl. 4). The Constitutionauthorizes Congress to make criminal laws respecting counterfeiting, treason, accepting bribes, and piracy & other felonies committed on [...]

    Pingback by What Now? You Ask, Political Insurgency! « A NATION BEGUILED | November 15, 2012 | Reply

  7. [...] Constitution authorizes Congress to make criminal laws respecting counterfeiting, treason, accepting bribes, and piracy & other felonies committed on [...]

    Pingback by God-given Rights, Man-made Anti-rights, and why “Safety Nets” are Immoral « Publius-Huldah's Blog | August 29, 2012 | Reply

  8. [...] Constitution authorizes Congress to make criminal laws respecting counterfeiting, treason, accepting bribes, and piracy & other felonies committed on [...]

    Pingback by God-given Rights, Man-made Anti-rights, and why “Safety Nets” are Immoral | American Conservative News Politics & Opinion - The Land of the Free | August 29, 2012 | Reply

  9. [...] citizen and the procedures for naturalization (Art I, Sec 8, cl. 4). The Constitution authorizes Congress to make criminal laws respecting counterfeiting, treason, accepting bribes, and piracy & other felonies committed on [...]

    Pingback by GOD-GIVEN RIGHTS, MAN-MADE ANTI-RIGHTS | Grumpy Opinions | August 28, 2012 | Reply

  10. [...] Constitution authorizes Congress to make criminal laws respecting counterfeiting, treason, accepting bribes, and piracy & other felonies committed on [...]

    Pingback by God-Given Rights, Man-Made Anti-Rights, and Why ‘Safety Nets’ are Immoral « Veteran Patriot | August 28, 2012 | Reply

  11. [...] Constitution authorizes Congress to make criminal laws respecting counterfeiting, treason, accepting bribes, and piracy & other felonies committed on [...]

    Pingback by God-Given Rights, Man-Made Anti-Rights, and Why ‘Safety Nets’ are Immoral | The Constitution Sentinel | August 27, 2012 | Reply

  12. [...] Constitution authorizes Congress to make criminal laws respecting counterfeiting, treason, accepting bribes, and piracy & other felonies committed on [...]

    Pingback by God-Given Rights, Man-Made Anti-Rights, and Why ‘Safety Nets’ are Immoral | Christian Patriots USA | August 27, 2012 | Reply

  13. [...] Constitution authorizes Congress to make criminal laws respecting counterfeiting, treason, accepting bribes, and piracy & other felonies committed on [...]

    Pingback by God-Given Rights, Man-Made Anti-Rights, and Why ‘Safety Nets’ are Immoral | Illinois Conservative Beacon | August 27, 2012 | Reply

  14. [...] Constitution authorizes Congress to make criminal laws respecting counterfeiting, treason, accepting bribes, and piracy & other felonies committed on [...]

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  15. [...] Constitution authorizes Congress to make criminal laws respecting counterfeiting, treason, accepting bribes, and piracy & other felonies committed on [...]

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  16. [...] “Offenses against the United States”: I explain here the criminal laws Our Constitution permits Congress to make. It’s a short list. Take note, you [...]

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  17. [...] Re “Offenses against the United States”: I explain here the criminal laws Our Constitution permits Congress to make.  It’s a short list.  Take note, [...]

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  18. [...] Re “Offenses against the United States”: I explain here the criminal laws Our Constitution permits Congress to make. It’s a short list. Take note, you [...]

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  19. [...] Re “Offenses against the United States”: I explain here the criminal laws Our Constitution permits Congress to make. It’s a short list. Take note, [...]

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  20. PH, whose job is it to nullify a unconstitutional law enacted by a state legislature? When state legislatures enact laws that usurp a power from the Federal government? I read “Why States Must Nullify Unconstitutional Acts of Congress: Instructions from Hamilton, Madison, & Jefferson.” But I’m not certain how one would go about it. It would seem to be a federal question, so I guess a federal court would be involved, but who would “charge” the state with a wrongdoing? Does the U.S. attorney general carry that duty?

    I apologize for my ignorance, but I am learning a great deal, much of it because of your writings. The Federalist Papers is quickly becoming my best friend. Thank you

    Comment by Dave | May 19, 2011 | Reply

    • It’s an excellent question, Dave. Say a State Legislature makes a law which contradicts a provision of the U.S. Constitution – e.g., by granting Titles of Nobility in violation of Article I, Sec. 10, clause 1. Who can nullify it? The State Governor or other State Executive officers may & should nullify it by refusing to execute it. The State Courts may & should nullify it by declaring it unconstitutional (after someone files a lawsuit). The federal attorney general may file a lawsuit in the US supreme Court [the supreme Court would have “original” [trial] jurisdiction since a State is a party] , asking for a declaration that the State Law is unconstitutional as in violation of Art. I, Sec. 10, clause 1. It is important to note that the Governor, other Executive State officials, and the State Courts do NOT need approval or permission from the federal government to nullify the unconstitutional State law.

      Say a State Legislature, in violation of Art. I, Sec. 10, clause 1, makes an ex post facto Law. An ex post facto law is a “law” which purports to criminalize acts retroactively. Say you barbecue outside every Sunday afternoon. Then your State legislature makes a law which retroactively makes it a criminal offense to barbecue outside. That is an illustration of an ex post facto law. So! Say you are criminally charged with barbecuing outside. Neither your defense lawyer, nor the prosecutor, not the judge have read the U.S. Constitution, so they don’t know about Art. I, Sec. 10, clause 1’s prohibition against ex post facto laws. I am sitting on the jury. Fortunately for you, I know about Art. I, Sec. 10, clause 1, U.S. Constitution. So I nullify that unconstitutional State law by finding you Not Guilty. Naturally, I enlighten my fellow jurors and get them to all find you Not Guilty. See? WE THE PEOPLE have just nullified an unconstitutional State law. We don’t need permission from anyone to do this. It is our Right and Duty to nullify that pretended law by finding you Not Guilty.

      We have all been brainwashed (and the lawyers as well) into believing that federal judges get to decide everything – but it is a big Lie!

      You can ask me questions on this site any time! And yes, I do love The Federalist Papers. PH

      Comment by Publius/Huldah | May 21, 2011 | Reply

  21. Thank you for that Beautiful Blog! :)

    Comment by katieshope | February 2, 2011 | Reply

    • You are so welcome, my dear. And thank you!

      Comment by Publius/Huldah | February 2, 2011 | Reply

  22. [...] What Criminal Laws are Congress Authorized To Make? [...]

    Pingback by The U.S. Census: Rule of Law or Rule of Men? « Publius-Huldah's Blog | March 9, 2010 | Reply

  23. Thanks very much for your help and continued insight!

    Comment by Tony | November 17, 2009 | Reply

  24. OK, the states are not saying “NO!”. They are perpetuating the problem, as they are cut from the same cloth. Finding and electing “faithful representatives” (is that an oxymoron?) in sufficient numbers to create a majority in both houses for an extened period of time seems a bit of a stretch in today’s political climate.

    Are you able to paraphrase the “very last resort” for me?

    Thanks for your help!

    Comment by Tony | November 16, 2009 | Reply

    • Read Federalist No. 46:

      Our job is to wake up the American People. Teach them the Constitution & the moral superiority of free enterprise. Get them to renounce their dream of living at other peoples’ expense. It would help if we could get the pastors to participate in the moral revival we need.

      Judging from the last elections & the polls, the tide IS turning. Keep talking to everyone within your spheres of influence! Post on websites. Challenge the ignorant & try to educate them. Join Facebook and engage people on the other side in discussions. Call talk shows. Look for & support good candidates. There is much that you can do! PH

      Comment by Publius/Huldah | November 16, 2009 | Reply

  25. The People and The States need to learn how to say something which they have forgotten: “NO! You don’t have authority to do that!” This means, among other things, State nullification, jury nullification, interposition by State Governors and State Legislatures, County sheriffs refusing to permit lawless activities of federal agents in their counties, States refusing to remit monies to the federal government, etc. Also, The People need to elect faithful representatives. Finally, but only as a very last resort, is the remedy described by James Madison, Father of the U.S. Constitution and former President of these United States, in the Federalist Papers No. 46, 7th para to the end. PH

    Comment by Publius/Huldah | November 16, 2009 | Reply

  26. Publius,

    Stalemate! “If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify”. We are here! And, it seems, something must be done soon or we will be surged past the point of no return because all references to the “unconstitutionality” of their actions are met with arogance or just ingnored.

    “…in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers…” When all the elected are of the same doctrine, this does not seem like a viable option. What is another a practical way “to take this country back from the faithless usurpers who have betrayed us”?

    Tony

    Comment by Tony | November 16, 2009 | Reply


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