Taking the Constitution Seriously

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Ron Paul Institute
Featured Articles
by Andrew P. Napolitano
Apr 3, 2025


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The U.S. Constitution was crafted in 1787 both to establish a new central government and to limit it. Some of the limitations are direct, some are subtle, and some are hidden. The chief instrument of limitation is the separation of powers, the brainchild of James Madison.

The late Justice Antonin Scalia called the separation of powers the most unique and freedom-enhancing aspect of the document. Madison himself would later argue that he intentionally crafted the separation so as to enhance friction and even jealousy among the three branches of government, thereby inducing fidelity to its core values, as well as transparency and accountability in the popular branches.

Thus, Congress writes the laws, the president enforces the laws, and the judiciary interprets the Constitution and the laws. Congress raises taxes and declares war. The president appoints judges and wages war. The judiciary assures that neither Congress nor the president interferes with personal liberty.

Congress and the president are answerable to the voters. The life-tenured judiciary is not. The purpose of an independent judiciary is to be the anti-democratic branch of the government. Its duty is not to reflect the popular will, but rather to protect life, liberty and property from the whims of the popular branches.

In the post-World War II era, Congress has attempted to give away some of its powers to the presidency. For example, even though the Constitution declares that only Congress can spend federal dollars, it has often appropriated funds for the president to spend as he sees fit — and presidents in turn have often delegated those spending decisions to folks whom they have hired.

As well, modern presidents have started dozens of wars without congressional declarations of war, and Congress has looked the other way. Congress even permits the president to raise taxes — so long as he calls them tariffs — and declare an emergency of his own making.

Can the Congress constitutionally give away some of its powers to the president? The short answer is: NO.

The longer answer is far more complex as, unless a proper case is properly before the court, there is no mechanism to prevent this transfer of power. Justice Scalia steadfastly maintained that delegated powers cannot be redelegated. The purpose of the separation of powers is not to enhance the hegemony of each branch of government. Rather, it is to safeguard personal liberty by preventing one branch from dominating either of the other two.

Stated differently, its purpose is to prevent tyranny.

There are numerous other structural constitutional limitations on the government. Thus, for example, the First Amendment does not create the freedoms of speech and the press; rather it bars the government from interfering with these preexisting rights.

As well, the Fifth Amendment guarantees due process whenever the government seeks the life, liberty or property of any person, citizen or not. Due process, in this context, means a fair hearing before a neutral independent judge who has no interest in the outcome of the case. Due process presumes that if the process is fair and just, the outcome will be respected and followed.

Can Congress or the president punish speech or deny due process? The textbook answer to this question is a resounding: NO. But history is replete with examples of presidents, from John Adams to Donald Trump, complying with statutes that purport to enable them to punish speech or deny due process.

For example, in 1798, Congress made it a crime to criticize the government’s foreign policy. That law was clearly unconstitutional, yet the Adams administration had folks prosecuted and upon conviction incarcerated for speech. After three years, Congress repealed the law. Some of the same folks who had ratified the First Amendment trampled it.

Congress has also authorized the secretary of state to deny permanent resident status to persons already peacefully here and possessing valid visas, based on their speech. This, too, is unconstitutional as it directly violates the First Amendment — and when the person is deported without due process, the Fifth Amendment as well.

These amendments have deep-rooted premises and values that they protect. The premise of the First Amendment, the premise of the Constitution itself, the premise of liberal democracies is the inescapable lesson of history that limited government in a free society only works when everyone is free to speak their minds and no one need fear masked men grabbing them in their homes, on a public street or airport, and shipping them off to a hell hole in Louisiana or El Salvador.

Until now.

Now, these are real cases that are being litigated today. Congress violated the separation of powers, and the First and Fifth amendments when it permitted deportation because of speech. It permitted trials before immigration judges, who are not neutral life-tenured judges, but rather stooges who work for the prosecutor, who is the Secretary of Homeland Security. The president often deports without hearings.

All confinement and restraint is a denial of natural rights — to speak and to move about freely. The premise of the Fifth Amendment is that no government can be trusted to deny rights for any reason — no matter how dangerous it claims the defendant may be — without a trial at which the government must prove fault before an independent judge. This week, without a hearing, the feds admitted they sent the wrong person to be tortured in El Salvador.

The president claims he has a mandate to rid the country of immigrants whose speech he and his benefactors hate and fear, and he complains that the Constitution is an impediment. The government has no business evaluating the content of speech. And the Constitution is an intentional impediment to tyranny. No mandate, no matter how one-sided — even all persons in the country but one — can justify trampling even one person’s natural rights.

Do Congress and the president take the Constitution seriously? The answer is obvious.


 
I really believe the judge is wrong on this, and have said why in the other thread, although there is much more which could be said.

Free Speech and the Fifth do not extend to anyone but U.S. citizens. And by the way, the residency requirement for citizenship at the time of the Alien and Sedition Acts (1798 reference of his) was elevated from an already 5 years to 14 years. But he misses the point. It was already 5 years.
I believe his argument would fail a legal challenge in Scotus. I realize his concerns are valid, however.

 
Ron Paul Institute
Featured Articles
by Andrew P. Napolitano
Apr 3, 2025


madison-quote-free-speech.jpg




The U.S. Constitution was crafted in 1787 both to establish a new central government and to limit it. Some of the limitations are direct, some are subtle, and some are hidden. The chief instrument of limitation is the separation of powers, the brainchild of James Madison.

The late Justice Antonin Scalia called the separation of powers the most unique and freedom-enhancing aspect of the document. Madison himself would later argue that he intentionally crafted the separation so as to enhance friction and even jealousy among the three branches of government, thereby inducing fidelity to its core values, as well as transparency and accountability in the popular branches.

Thus, Congress writes the laws, the president enforces the laws, and the judiciary interprets the Constitution and the laws. Congress raises taxes and declares war. The president appoints judges and wages war. The judiciary assures that neither Congress nor the president interferes with personal liberty.

Congress and the president are answerable to the voters. The life-tenured judiciary is not. The purpose of an independent judiciary is to be the anti-democratic branch of the government. Its duty is not to reflect the popular will, but rather to protect life, liberty and property from the whims of the popular branches.

In the post-World War II era, Congress has attempted to give away some of its powers to the presidency. For example, even though the Constitution declares that only Congress can spend federal dollars, it has often appropriated funds for the president to spend as he sees fit — and presidents in turn have often delegated those spending decisions to folks whom they have hired.

As well, modern presidents have started dozens of wars without congressional declarations of war, and Congress has looked the other way. Congress even permits the president to raise taxes — so long as he calls them tariffs — and declare an emergency of his own making.

Can the Congress constitutionally give away some of its powers to the president? The short answer is: NO.

The longer answer is far more complex as, unless a proper case is properly before the court, there is no mechanism to prevent this transfer of power. Justice Scalia steadfastly maintained that delegated powers cannot be redelegated. The purpose of the separation of powers is not to enhance the hegemony of each branch of government. Rather, it is to safeguard personal liberty by preventing one branch from dominating either of the other two.

Stated differently, its purpose is to prevent tyranny.

There are numerous other structural constitutional limitations on the government. Thus, for example, the First Amendment does not create the freedoms of speech and the press; rather it bars the government from interfering with these preexisting rights.

As well, the Fifth Amendment guarantees due process whenever the government seeks the life, liberty or property of any person, citizen or not. Due process, in this context, means a fair hearing before a neutral independent judge who has no interest in the outcome of the case. Due process presumes that if the process is fair and just, the outcome will be respected and followed.

Can Congress or the president punish speech or deny due process? The textbook answer to this question is a resounding: NO. But history is replete with examples of presidents, from John Adams to Donald Trump, complying with statutes that purport to enable them to punish speech or deny due process.

For example, in 1798, Congress made it a crime to criticize the government’s foreign policy. That law was clearly unconstitutional, yet the Adams administration had folks prosecuted and upon conviction incarcerated for speech. After three years, Congress repealed the law. Some of the same folks who had ratified the First Amendment trampled it.

Congress has also authorized the secretary of state to deny permanent resident status to persons already peacefully here and possessing valid visas, based on their speech. This, too, is unconstitutional as it directly violates the First Amendment — and when the person is deported without due process, the Fifth Amendment as well.

These amendments have deep-rooted premises and values that they protect. The premise of the First Amendment, the premise of the Constitution itself, the premise of liberal democracies is the inescapable lesson of history that limited government in a free society only works when everyone is free to speak their minds and no one need fear masked men grabbing them in their homes, on a public street or airport, and shipping them off to a hell hole in Louisiana or El Salvador.

Until now.

Now, these are real cases that are being litigated today. Congress violated the separation of powers, and the First and Fifth amendments when it permitted deportation because of speech. It permitted trials before immigration judges, who are not neutral life-tenured judges, but rather stooges who work for the prosecutor, who is the Secretary of Homeland Security. The president often deports without hearings.

All confinement and restraint is a denial of natural rights — to speak and to move about freely. The premise of the Fifth Amendment is that no government can be trusted to deny rights for any reason — no matter how dangerous it claims the defendant may be — without a trial at which the government must prove fault before an independent judge. This week, without a hearing, the feds admitted they sent the wrong person to be tortured in El Salvador.

The president claims he has a mandate to rid the country of immigrants whose speech he and his benefactors hate and fear, and he complains that the Constitution is an impediment. The government has no business evaluating the content of speech. And the Constitution is an intentional impediment to tyranny. No mandate, no matter how one-sided — even all persons in the country but one — can justify trampling even one person’s natural rights.

Do Congress and the president take the Constitution seriously? The answer is obvious.


It's hard to take Napolitano seriously about "taking the Constitution seriously" when he advocates for the incorporation doctrine. You know, that legal concept that the Founders soundly rejected.
 
A few comments on the OP.

Jefferson and Madison denied that the SCOTUS was authorized by the Constitution to interpret the Constitution but that it usurped that power on its own. So that was not in the original design of separation of powers, at least according to some who had standing to have an opinion. They said, instead, that the States were the final arbiters of the Constitutionality of Federal actions through nullification.

I would also argue that the limiting of the Federal government to enumerated powers was the most important brake on power. But they blew through that pretty quickly, proving the Anti-federalists right (and Madison wrong) that a Bill of rights was needed. And the separation of powers was doomed from the outset. A small group of people who can only gain power by working together will find a way to work together.

I would also point out that what is going on with a handful of non-citizens allowed in-country by discretion (or illegally) is rather mild compared to numerous historical atrocities visited upon Americans, such as what happened during and after the unconstitutional Civil War, and the internment of more than 100,000 American citizens of Japanese decent in prison camps during WWII. So this really isn't some kind of unprecedented outburst of tyranny. Worse things have been done to actual citizens.

And as far as the students' rights to free speech, I can say that if I was allowed provisionally to enter another country, to enjoy the benefits of that country, one of the last things I would do is loudly assert my political opinion or criticize the government that generously allowed me to be its guest. And if I were so stupid, arrogant, and ungrateful to do so, I would fully expect to have my ass immediately tossed out the nearest exit. And besides, the argument that a free country can only survive if the people can speak freely applies to citizens of the country, not to foreigners just passing through. Why should I care what foreigners think about American government? I don't even care what most Americans think about American government.

So, not really wetting my sleeves with tears for them.
 
A few comments on the OP.

Jefferson and Madison denied that the SCOTUS was authorized by the Constitution to interpret the Constitution but that it usurped that power on its own. So that was not in the original design of separation of powers, at least according to some who had standing to have an opinion. They said, instead, that the States were the final arbiters of the Constitutionality of Federal actions through nullification.

I would also argue that the limiting of the Federal government to enumerated powers was the most important brake on power. But they blew through that pretty quickly, proving the Anti-federalists right (and Madison wrong) that a Bill of rights was needed. And the separation of powers was doomed from the outset. A small group of people who can only gain power by working together will find a way to work together.

I would also point out that what is going on with a handful of non-citizens allowed in-country by discretion (or illegally) is rather mild compared to numerous historical atrocities visited upon Americans, such as what happened during and after the unconstitutional Civil War, and the internment of more than 100,000 American citizens of Japanese decent in prison camps during WWII. So this really isn't some kind of unprecedented outburst of tyranny. Worse things have been done to actual citizens.

And as far as the students' rights to free speech, I can say that if I was allowed provisionally to enter another country, to enjoy the benefits of that country, one of the last things I would do is loudly assert my political opinion or criticize the government that generously allowed me to be its guest. And if I were so stupid, arrogant, and ungrateful to do so, I would fully expect to have my ass immediately tossed out the nearest exit. And besides, the argument that a free country can only survive if the people can speak freely applies to citizens of the country, not to foreigners just passing through. Why should I care what foreigners think about American government? I don't even care what most Americans think about American government.

So, not really wetting my sleeves with tears for them.

Welcome back, Acala! It's been almost a decade. (Christ, I feel old now!)

You were missed. Hope you stick around.

(Now if only Mini-Me - another of my favorite posters - would show back up, it would almost be like old times again ...)
 
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Neither leftists nor right wingers give a damn about the constitution when it purports to limit them in what they want to do. They only use it as either a rhetorical tool, or as a bludgeon to be wielded aganst the other team when it suits them. Neither side cares in the slightest about actual principles.
 
Neither leftists nor right wingers give a damn about the constitution when it purports to limit them in what they want to do. They only use it as either a rhetorical tool, or as a bludgeon to be wielded aganst the other team when it suits them. Neither side cares in the slightest about actual principles.

What goes for "muh duhmockruhsy" goes just as well as for "muh Constuhtooshun":



(JTBF and FTR, I don't give a damn about democracy or the Constitution, either - but for quite different reasons ...)
 
What goes for "muh duhmockruhsy" goes just as well as for "muh Constuhtooshun":

There's a difference with the Constitution -- the Constitution is a "line in the sand" that is a definite thing, and which hundreds of millions of Americans can -- if they ever get the gumption to do so -- rally around and defend. "Democracy" means whatever anybody wants it to mean, it refers to no definite thing at all. The Constitution is a document written in black-and-white (or black-and-parchment) that is a very well-defined entity. The US Government circa 2025 has as much to do with the Constitution as a B-2 bomber has to do with Kitty Hawk. The departure from the Constitution by the people who swore to obey and defend it is not the fault of the Constitution... disobedience is always a choice that treacherous humans can make, no document (or ideology) can ever stop that. So, we cannot fault the Constitution on the basis of "how it turned out" -- the Constitution may be our one and only life-ring to survive our shipwrecked national government. A US Government that actually obeyed the Constitution would effectively be anarchy, certainly by modern standards. It's minarchism, but it's a minarchism that is the width of a razor-blade from full-blown anarchy. We just got to get back to it (by God's grace).
 
There's a difference with the Constitution -- the Constitution is a "line in the sand" that is a definite thing, and which hundreds of millions of Americans can -- if they ever get the gumption to do so -- rally around and defend.

If it ever was a line in the sand, it was crossed a looooong time ago, calmly, coolly, entirely without incident.
 
There's a difference with the Constitution -- the Constitution is a "line in the sand" that is a definite thing, and which hundreds of millions of Americans can -- if they ever get the gumption to do so -- rally around and defend. "Democracy" means whatever anybody wants it to mean, it refers to no definite thing at all. The Constitution is a document written in black-and-white (or black-and-parchment) that is a very well-defined entity. The US Government circa 2025 has as much to do with the Constitution as a B-2 bomber has to do with Kitty Hawk. The departure from the Constitution by the people who swore to obey and defend it is not the fault of the Constitution... disobedience is always a choice that treacherous humans can make, no document (or ideology) can ever stop that. So, we cannot fault the Constitution on the basis of "how it turned out" -- the Constitution may be our one and only life-ring to survive our shipwrecked national government.

Meh.

I get what you're saying, but at this point, I think appeals to the Constitution (which has never actually been what it is so often made out to be - see below) are just expressions of a talismanic fetish. Like gestures warding off the "evil eye", they are just reflexive orisons more than anything else.

A US Government that actually obeyed the Constitution would effectively be anarchy, certainly by modern standards. It's minarchism, but it's a minarchism that is the width of a razor-blade from full-blown anarchy. We just got to get back to it (by God's grace).

This might have been true of the Articles of Confederation - but certainly not of the Constitution. The Constitution was an usurpation and overthrow of the Articles, for the express purpose of centralizing and concentrating political power in the hand of those who chafed under the Articles' lack of utility when it came to matters such as expropriating taxes and the like.

The Constitution is mostly just adminstrivia, anyway - requiring senators to be 35 years old, specifying a process by which Secretaries of Whatever are to be appointed, and so on. Not exactly inspiring stuff. The Bill of Rights is what most people seem to be thinking of when they invoke the supposed wonderfulness of the Constitution.

But the BoR was just an afterthought, a sop to the anti-Federalists, who rightly feared and opposed what the Constitution was and what it would end up doing - what it actually did end up doing after it's original intent was finally bought to fuller fruition by Abraham Lincoln. (Without the Constitution or something like it, we would have ended up with neither "federal supremacy" nor a "federal reserve" - to name just two of the most obvious and inevitable consequences that followed from the coup of 1787-1788.)
 
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If we're going to fetishize a centuries-old document, let it be the Declaration of Independence - not the United States Constitution.

The former says things like "all men are created equal [and] they are endowed by their Creator with certain unalienable Rights, [among which] are Life, Liberty and the pursuit of Happiness" - whereas the latter speaks in terms of euphemistic, mealy-mouthed weasel words such as "Person[s] held to Service or Labour" (read: "human chattel slaves").

IOW: The former embodies and expresses the real principles of genuine liberty. The latter does not (and even explicitly does the exact opposite - refer, for example, to the aforesaid "Person[s]").
 
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As a completely off-topic side-track, one thing that came to mind from the recent Glenn Greenwald salacious video releases, one has to wonder about what videos are being held over the heads of various pundits and politicians?

What do they have on Lindsey Graham? Adam Schiff?

We know there was a noticeable change in Judge Nap after he said something to the effect "you would be amazed at what they have".
 
Meh.

I get what you're saying, but at this point, I think appeals to the Constitution (which has never actually been what it is so often made out to be - see below) are just expressions of a talismanic fetish. Like gestures warding off the "evil eye", they are just reflexive orisons more than anything else.

This might have been true of the Articles of Confederation - but certainly not of the Constitution. The Constitution was an usurpation and overthrow of the Articles, for the express purpose of centralizing and concentrating political power in the hand of those who chafed under the Articles' lack of utility when it came to matters such as expropriating taxes and the like.

The Constitution is mostly just adminstrivia, anyway - requiring senators to be 35 years old, specifying a process by which Secretaries of Whatever are to be appointed, and so on. Not exactly inspiring stuff. The Bill of Rights is what most people seem to be thinking of when they invoke the supposed wonderfulness of the Constitution.

But the BoR was just an afterthought, a sop to the anti-Federalists, who rightly feared and opposed what the Constitution was and what it would end up doing - what it actually did end up doing after it's original intent was finally bought to fuller fruition by Abraham Lincoln. (Without the Constitution or something like it, we would have ended up with neither "federal supremacy" nor a "federal reserve" - to name just two of the most obvious and inevitable consequences that followed from the coup of 1787-1788.)

Well, I can't actually disagree with anything you said here. I guess this is in the same category as my tenuous support of DJT from roughly 2018 until the Patel/Bongino interview finally drove the final nail in that coffIn: a hail-Mary being hurled out to the Cosmos not because I believe it's actually going to work but because I can't prove that it's impossible that it could work. And I can't think of any better ideas... all I've got after that is the Second Coming. Which is why you see me write so much on this forum about that and related topics...
 
[T]he United States Constitution is the primary genetic constituent of the abomination that is "the Federal government".

It should be excised from any future body politic as the metastatic tumor that it has always been (and was always intended to be).
If we're going to fetishize a centuries-old document, let it be the Declaration of Independence - not the United States Constitution.

https://x.com/TenthAmendment/status/1955857436616876420
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https://x.com/MZygodactyl01/status/1956015311083249926
[link: https://www.lewrockwell.com/2006/05...rtarians-socialists-and-the-whiskeyrebellion/]
upload.png


https://x.com/MZygodactyl01/status/1956030510095822951
upload.png
 
[SPLIT FROM: Invasion USA]

Sounds like Auron and "amuse" need to brush up on the 1st Amendment. Unless they are flakes/provocateurs.

1st amendment is overrated anyway.

If globalists are gonna openly brag about their globalist agenda, like this muslim dude, I reserve the right to forcibly separate myself from them or them from us, which ever is easier.
 
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1st amendment is overrated anyway.

The flakes/provocateurs would likewise say that about the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th Amendments.

IOW, why do you defend a representative border if you don't defend its very Bill of Rights? The Constitution-Free Zone is already in effect, what more do you want? If you say secession, that's all well and good, if it's from Corporatist America/CB and its enablers.


If globalists are gonna openly brag about their globalist agenda, like this muslim dude, I reserve the right to forcibly separate myself from them or them from us, which ever is easier.

The Globalist Agenda is entirely about shredding the Bill of Rights [and more], and the 'Merikan people are aiding and abetting and doing it themselves. I'm more worried about those 'Merikans than I am about some dude saying a prayer in the middle of some street; ie 1st Amendment.


Hans-Hermann Hoppe: "In this, the biblical commandments go above and beyond what many libertarians regard as sufficient for the establishment of a peaceful social order: the mere strict adherence to commandments six, eight, and ten. Yet this difference between a strict and rigid libertarianism and the ten biblical commandments does not imply any incompatibility between the two. Both are in complete harmony if only a distinction is made between legal prohibitions on the one hand, expressed in commandments six, eight, and ten, violations of which may be punished by the exercise of physical violence, and extralegal or moral prohibitions on the other hand, expressed in commandments five, seven, and nine, violations of which may be punished only by means below the threshold of physical violence, such as social disapproval, discrimination, exclusion, or ostracism."​
 
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The flakes/provocateurs would likewise say that about the 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th and 10th Amendments.

I don't even know what most of those are and nor do I care, so I would agree that most of those are overrated.

2nd and 10th are however, not overrated :cool:




The Globalist Agenda is entirely about shredding the Bill of Rights [and more], and the 'Merikan people are aiding and abetting and doing it themselves. I'm more worried about those 'Merikans than I am about some dude saying a prayer in the middle of some street; ie 1st Amendment.

Nah, the Globalist Agenda is about shredding the right of secession -- pretty much by definition of "globalist".

To the extent that they have trampled other rights, sure, but that's better described as collateral damage in their war on secession.

The way I see it, by forcibly separating them from us, or us from them, it is directly upholding the right of secession, and by definition, is directly contrary to the globalist goals, and no matter what "bills of privileges" you wish to invoke, it does not change that fact :up:

1st amendment (whatever that is lol) does NOT override the right of secession :up:
 
I don't even know what most of those are and nor do I care, so I would agree that most of those are overrated.

2nd and 10th are however, not overrated :cool:

Picking and choosing? lol

Nah, the Globalist Agenda is about shredding the right of secession -- pretty much by definition of "globalist".

Like I said:

about shredding the Bill of Rights [and more]

To the extent that they have trampled other rights, sure, but that's better described as collateral damage in their war on secession.

It's been in the making for a very long time. They work in stages, "efficiently" so to speak.

The way I see it, by forcibly separating them from us, or us from them, it is directly upholding the right of secession, and by definition, is directly contrary to the globalist goals, and no matter what "bills of privileges" you wish to invoke, it does not change that fact :up:

The intent, even if after the fact, was that those "privileges" are bounds on the government. See how well secession works out for you after those "privileges" no longer exist.

1st amendment whatever that is (lol) does NOT override the right of secession :up:

Every time I read or hear "whatever that is", it reminds me of "redefined libertarianism"; it doesn't do anything for me... especially if one can't stand on principle, even if self-serving. Perhaps give [it] more thought would be my personal advice.


Trump might deploy military to various cities. What's next? Violate the 3rd Amendment "whatever that is"? And if so, will you have to surrender your 2nd Amendment "whatever that is" stuff for their and your safety?
 
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Every time I read or hear "whatever that is", it reminds me of "redefined libertarianism"; it doesn't do anything for me... especially if one can't stand on principle, even if self-serving. Perhaps give [it] more thought would be my personal advice.

My principles are very consistent and it's what I'm standing on.

You may not agree with my principles, but it does not mean I am not standing on principle
 
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My principles are very consistent and it's what I'm standing on.

You may not agree with my principles, but it does not mean I am not standing on principle

I won't say "whatever that means" so I'll just say "whatever those are" :shrugging: 😂
 
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