The 14th Amendment “Incorporation Cases” Violate the 10th

The 14th Amendment “Incorporation Cases” Violate the 10th and are Unconstitutional

Amendment 14, Section 1, in part:

“[N]or shall any State deprive any person of life, liberty, or property, without due process of law. . . .” (1868)

The 10th Amendment:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

No provision in the Constitution has undergone more torture than the due process clause of the 14th Amendment. In the name of due process, the court in the late 1800s and early 1900s struck down all sorts of state economic regulation. [1] The rationale for all these decisions was that due process had a “substantive element”—that due process protected economic freedoms, such as “liberty of contract”, from legislation infringing upon those substantive freedoms. [2]

Despite the fact that those rulings have mostly been explicitly or implicitly overruled, [3] the modern court itself has continued to commit the same sins of its forbearers. Using the rubric of due process, the modern-age court has superimposed its own substantive content onto due process, among other things holding that due process prevents states: from permitting voluntary prayer in schools, [4] from prohibiting abortions, [5] from criminalizing distribution of pornography, [6] from using incriminating evidence (usually drugs) seized without warrant or probable cause, [7] from using incriminating confessions obtained without having first advised the defendant of a right to a lawyer and a right to remain silent, [8] from criminalizing flag burning; [9] and restricting states from imposing the death penalty, [10] to name some of the more prominent rulings.

One I suppose could agree, as a matter of policy, with the results of at least some of those cases, one ought beware of accepting them as a matter of law, for the “reasoning” in the cases, as I shall attempt to show here, is wholly unsound and has led to all manner of federal intrusion into matters reserved to states and subject only to state constitutional laws.

Neither the earlier, nor the modern approach, withstand scrutiny. As Professor Raoul Berger has noted, “on the eve of the [Constitutional] Convention [of 1787], Alexander Hamilton [described due process as having] ‘a precise technical import, and [is] only applicable to the process and proceedings of courts of justice; . . . never . . . to an act of the legislature.’” [11]

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The Government Follows a 3000-PAGE Constitution


Article IV, Section 4

Guarantee Clause

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
Article IV, Section 4


The Court and Constitutional Interpretation - Supreme Court

Excerpt ...

The Court is the highest tribunal in the Nation for all cases and controversies ... as well as in maintaining a "living Constitution" whose broad provisions are ...

"The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution. This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations."

Supreme court


Living Constitutionalism on the Supreme Court’s Website

by Mike Rappaport

Six years ago, I wrote a post about how the Supreme Court’s website adopted the language of the Living Constitution approach.  (I had been expanding on a post by Eugene Volokh.)  It was curious that Justices Scalia and Thomas, as well as other fellow travellers of originalism, including the Chief Justice, would allow this language to continue.   At the end of the post, I wrote that “it will be interesting to see whether this is changed and if so, how long it will take.”  I just checked back to see whether there had been a change, but none has occurred.  That’s disappointing.

The website adopts many claims that are problematic from an originalist perspective.  Some of these are problematic for their substance.  Others are problematic because their connotations suggest living constitutionalism, even though they might technically be interpreted as accurate.  In both cases, a Supreme Court that was trying to be even handed between originalism and nonoriginalism would have written these claims differently.  Read more


Constitution 101: Living and Breathing is the Same as Dead



In 1775, The Revolutionary War between the Colonies and Britain began. In 1788, the Constitution became the undisputed law of the land after New Hampshire became the ninth and last state required to approve it.
In 1791, the first ten amendments, known as the Bill of Rights, were added to the Constitution in order to define and protect the rights of the American people.
The Constitution was not and is not a blueprint, guideline, or set of suggestions. This one document provides the ultimate law in the U.S. and more importantly mandates limits on the power of the federal government.

Since shortly after its ratification, judges have had to interpret this over 200-year-old document in countless cases. Laws are “struck down” if a particular judge believes the law is unconstitutional. The judicial belief in how to interpret the Constitution has been the center of controversy since the beginning. There are two primary views of how judges and the public interpret the Constitution. While the rest of the column is not riveting, it is vital information to understand as a citizen.
ORIGINALISM – As pointed out below by the Heritage Foundation, those who make, interpret, and enforce the law ought to be guided by the meaning of the Constitution as it was originally written. The vast majority of Originalists begin with the text of the Constitution, the words of a particular sentence or paragraph. Textualism considers the words of the document to be authoritive while keeping in mind the traditional American principles behind the text. (Think of the text of the 1st Amendment and the reasons why our freedom loving Founders wrote it.)

Admittedly, understanding the Founders’ original intent is not always a simple task. It can take tedious work and sometimes produces vigorous disagreement. However, Originalism is logically, as opposed to emotionally, the best way to interpret the Constitution for five fundamental reasons.
1. It binds and limits any particular generation from ruling according to the passion of the times.
2. It complies with the constitutional purpose of limiting government. It understands the several parts of the massive federal government have no legitimate existence outside of the Constitution.

3. It supports the separation of power between the three branches of government by limiting the power of the judiciary. It prevents the Supreme Court, and other courts, from “creating law” which is a reserved power for the legislative branch
4. It reflects the Founders’ understanding of the self-motivated impulses of human nature. The Constitution inherently works to frustrate those impulses while leaving open channels for changing (amending) the document as needed.

5. Most importantly, Originalism is not result-oriented. If a law is unconstitutional, then so be it. The Originalist is like Chief Justice Roberts’ description of the role of a judge; judges should be like umpires calling “balls and strikes.” “Umpires don’t make the rules, they apply them.” The Originalist believes that it does not matter which party wins or loses.

LIVING DOCUMENT - Originalism has seen a steep decline over the last century with the rise of the theory of the Constitution as a "living document" or “living, breathing document” with no fixed meaning, subject to changing interpretations according to the spirit of the times.
This popular theory turns the Constitution into an unwritten charter to be developed by contemporary values. The problem here is that for some people, it can be tempting to “create rights”, “take away rights”, focus on the desired end result, and inject personal views into a case.

The primary argument supporting a “living document” theory is that we live in changing times. How could the Framers have envisioned computers in the late 1770’s? Well, humans are creative and forward thinking. Jules Verne envisioned technology in the 1800’s that still does not exist today. While the requirements for obtaining a search warrant for a smartphone may not have specifically been contemplated by the Founders, technological advances certainly were.
Additionally, the Constitution already provides for a system to live, breath, and change. The document has been amended 26 times based on mistakes and the needs and desires of our ever-changing American society. The power to amend the Constitution, though necessarily difficult, is the primary reason the document has been able to survive the turbulent changes throughout the past 200 years.

The support and/or application of the “living document” theory creates inconsistent law, regionally based law, is arbitrary, and further politicizes the judiciary.
While Originalism does not remove controversy or disagreement, it does establish the Rule of Law. Without it, our country will eventually become entirely governed by the Rule of Men.


Democracy... while it lasts is more bloody than either aristocracy or monarchy. Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There is never a democracy that did not commit suicide. John Adams
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We the People: A Constitutional Republic, Not a Democracy


"Federal Constitution—which banished direct democracy from our federal mechanisms of governance"

Preserving Republican Governance: An Essential Government Functions Exception to Direct Democratic Measures

James Madison, writing in Federalist No. 10, observed the difference between a republic and a pure democracy. (1) Whereas a republic consists of a scheme of representative governance utilizing a deliberative process to legislate, a pure democracy gives legislative power directly to the public. (2) The Constitution embraces representative governance at the federal level (3) and also guarantees it to the states. (4) Yet with the increased prevalence of direct democratic measures, such as ballot initiatives and referendums, the structural lines between a republican government and a direct democratic government are being blurred, producing both structural and pragmatic consequences for state governments.  Read more


The Birth of Direct Democracy: What Progressivism Did to the States


Government by Judiciary

Raoul Berger

Publication Year: 2012

The Justices, who are virtually unaccountable, irremovable, and irreversible, have taken over from the people control of their own destiny.

— Raoul Berger

It is the thesis of this monumentally argued book that the United States Supreme Court—largely through abuses of the Fourteenth Amendment to the Constitution—has embarked on "a continuing revision of the Constitution, under the guise of interpretation." Consequently, the Court has subverted America's democratic institutions and wreaked havoc upon Americans' social and political lives.

One of the first constitutional scholars to question the rise of judicial activism in modern times . . . show more

Published by: Liberty Fund


Berger & the 14th Amendement


Raoul Berger Law Journal Library


Article V Project to Restore Liberty

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Tell me again why our 50 sovereign states have no say when it comes to illegal immigration, invasion?


The US Constitution Only Delegates the Power Over Immigration or Asylum to the States

by P.A. Madison Federalist Blog

Pima County Attorney Barbara LaWall on behalf of herself and several other county attorneys and sheriffs, recently said a Arizona proposed immigration provision is an unconstitutional intrusion by the state into immigration policies, which are solely the purview of the Federal Government.

This struck me kind of odd because in order to come under the purview of the Federal Government the authority must be found delegated or, incidental to a delegated power granted to Congress under the US Constitution. There is a significant reason why Congress has no delegated power leading to jurisdiction under the US Constitution in matters of immigration or Asylum.

Prior to the adoption of the current Constitution, which was intended to correct for deficiencies found in the Confederation (hint: “to form a more perfect union”), States decided for themselves who could reside and later become citizens within their limits. This was simply a function of sovereignty each State enjoyed and had no desire to surrender to national government.

During the Constitutional Convention of June 16, 1788, George Mason asked if the new Constitution would secure and guarantee the rights the States then currently enjoyed. Said Mason:

But I wish a clause in the Constitution, with respect to all powers which are not granted, that they are retained by the states. Otherwise, the power of providing for the general welfare may be perverted to its destruction. Many gentlemen, whom I respect, take different sides of this question. We wish this Amendment to be introduced, to remove our apprehensions. There was a clause in the Confederation reserving to the states respectively every power, jurisdiction, and right, not expressly delegated to the United States.

This clause has never been complained of, but approved by all. Why not, then, have a similar clause in this Constitution, in which it is the more indispensably necessary than in the Confederation, because of the great augmentation of power vested in the former? In my humble apprehension, unless there be some such clear and finite expression, this clause now under consideration will go to any thing our rulers may think proper. Unless there be some express declaration that every thing not given is retained, it will be carried to any power Congress may please.

It was this very apprehension that we find the Ninth and Tenth Amendment under the US Constitution today. The Ninth and Tenth Amendments taken together provide for interpreting the Constitution while also defining the sovereignty of the republic.

The Ninth was intended to preserve all rights under existing state laws as of 1791, and those rights, which States might later decide to extend. The Tenth guaranteed to the States their ability to exercise their powers based on the sovereignty of the people to self-government. The Ninth Amendment looks to the past, the rights retained, or that will be retained by the States. The Tenth Amendment acts to prevent encroachment by the national government upon the States via the exercise of a non-delegated power.

Thomas Jefferson forcibly tells us what the States retained under the US Constitution in regards to immigration:

[A]lien friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citizens; and it being true, as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited to the states, are reserved, to the states, respectively, or to the people,” the act of the Congress of the United States, passed the 22d day of June, 1798, entitled “An Act concerning Aliens,” which assumes power over alien friends not delegated by the Constitution, is not law, but is altogether void and of no force.

Because the States decided they would retain their own laws, customs, independence and sovereignty with the exception of what was surrendered, the Federal Government was left with no powers to meddle within the States. The Vermont Constitution of 1793 recognized citizens right to emigrate from state to state, provided the laws of the state accepted them. James Madison explained the entire compact this way:

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 the internal order, improvement, and prosperity of the State.

Chief Justice of the United States, John Marshall, said, in delivering the unanimous opinion of his brethren of the court in McCulloch v. Maryland, decided in 1819:

No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into into one common mass. Of consequence, when they act, they act in their States. … In America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other.

Sovereignty over individual State immigration was never an object committed to national government.

Unlike the Federal Government, State governments claim broad general powers, and therefore, the question is never whether a power is granted for a State to exercise, but whether the power has been explicitly withheld from the State. The Federal Government was given specific national sovereignty over such things as war, peace, treaties (within the sphere of powers delegated), print money, define and punish piracies and felonies on the high Seas, make uniform rules of naturalization for foreigners who migrated to some State per State law, etc.

Because the States retained just about everything they had before joining the union, and the fact this is clearly enumerated in the Constitution, gives Congress no more authority to authorize entry of immigrants or asylum seekers within the individual States any more than it has the authority to direct another country to accept them.

It was always up to each State to monitor their own borders or protect its citizens from the wild Indians internally, and if things got out of hand, they could make application for federal troops to enter to combat any internal domestic violence. If one closely reads the U.S. Constitution, they will discover domestic concerns of the States were carefully shielded from federal interference.

The same Congress that had passed reconstruction acts after the civil war, including the 14th amendment, required rebel State Constitutions to conform to the US Constitution before being re-admitted into the Union. Texas, like other States, had elected to form its own immigration bureau for managing immigration within State limits. Article XI of the pre-approved Texas Constitution of 1869 read:

SECTION I. There shall be a Bureau, known as the “Bureau of Immigration,” which shall have supervision and control of all matters connected with immigration. The head of this Bureau shall be styled the “Superintendent of Immigration.” He shall be appointed by the Governor, by and with the advice and consent of the Senate. He shall hold his office for four years, and until otherwise fixed by law, shall receive an annual compensation of two thousand dollars. He shall have such further powers and duties, connected with immigration, as may be given by law.

Most all the States had their own “immigration commissioners” in a number of European countries before and after the adoption of the Fourteenth Amendment, seeking to encourage those persons who possessed certain needed skills to immigrate to their State. When immigration of any kind became unwise the State had the full power to act on the subject (unlike today).  Continue reading at



John Bingham Fourteenth Amendment Quotes

by P.A. Madison

I want to mark John A. Bingham’s belated January 21 birthday with some of his most significant quotes from 1866 thru 1875 I have come across over the years from such sources as Congressional Globe, House Reports, public speeches and letters. Some will be an eye opener since they are so contrary to what scholars and courts improperly attribute to him in terms of constitutional changes in late 20th century.

  • “The words ‘citizens of the United States,’ and ‘citizens of the States,’ as employed in the fourteenth amendment, did not change or modify the relations of citizens of the State and nation as they existed under the original Constitution.”

“This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”

“That all citizens shall be forever equal, subject to like penalties for like crimes and no other.”

“I ask that South Carolina, and that Ohio as well, shall be bound to respect the rights of the humblest citizen of the remotest State of the Republic when he may hereafter come within her jurisdiction.”

“It is to secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution.”

“The clause of the fourteenth amendment, ‘no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,’ does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two.”

“It had been judicially determined that the first eight articles of amendment of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article.”

“That provision, gentlemen will remember, was a limitation imposed upon the State of Missouri in the very words of the Constitution itself, to wit: that its constitution never should be so construed, and never should be so enforced as to deprive any citizen of the United States of the rights and privileges of a citizen of the United States within the limits of that State. The fourteenth article of the amendments of the Constitution secures this power to the Congress of the United States.”

“The Magna Charta ‘gave the protection of the laws only to freemen’ while the Fifth Amendment used ‘more comprehensive words, no person shall be deprived of life, liberty or property without due process of law,’ and thus, ‘the people by their Constitution declared the equality of all men, and by the express limitation forbade the Government of the United States from making any discrimination.'”

“Surely the gentleman (Farnsworth) then supposed the words ‘equal protection of the laws’ were more than a glittering generality; that they were to be enforced to the extent of securing all guarantees of life, liberty, and property as provided by the supreme law of the land, the Constitution of the United States.”

“Some gentleman still ask what due process of law is, unaware of the centuries old meaning of protection against arbitrary abuse in the taking of life, confinement and confiscation.”

“As gentlemen well know, we are limited to matters of migration of aliens to territories belonging only to the United States as the States never surrendered their sovereign power over alien migration within their own limits. These States are free to exercise this reserved power to the fullest extent without any question or limits placed on this reserved power from the central government.”

“I know of no power lodged in the central government to interfere in the domestic affairs of these States or their laws in absence of some positive organic act of a State that places one class of persons at an disadvantageous over another in the protection of life, liberty or property before their courts of justice for an offence made a crime. The fourteenth of amendments most certainly does not confer this power.”

“Nothing is more vital to the people’s liberty and freedom than that immortal amendment that reads ‘powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’ I shall declare again the recent (14th and 15th) amendments made no change in this respect.”



"Asylum for Mankind": America, 1607-1800

It might depend on what part of the Constitution you read?

Pretty simple, eliminate Federal benefits and service magnets driving illegal immigration, invasion.

A educational read, imo ....

Justice Antonin Scalia Opinion

Arizona v. United States,
567 U.S. 387 (2012)

Excerpt ...

"A Federal Government that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?

A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?"


DHS/DOJ report: Thousands of avoidable crimes committed by foreign nationals in Texas alone
Daniel Horowitz · June 8, 2018

State Constitutions and the Protection of Individual Rights
William J. Brennan, Jr.
Harvard Law Review
Vol. 90, No. 3 (Jan., 1977), pp. 489-504
Published by: The Harvard Law Review Association
DOI: 10.2307/1340334
Stable URL:
Page Count: 16

During the 1960's, as the Supreme Court expanded the measure of federal protection for individual rights, there was little need for litigants to rest their claims, or judges their decisions, on state constitutional grounds. In this Article, Mr. Justice Brennan argues that the trend of recent Supreme Court civil liberties decisions should prompt a reappraisal of that strategy. He particularly notes the numerous state courts which have already extended to their citizens, via state constitutions, greater protections than the Supreme Court has held are applicable under the federal Bill of Rights. Finally, he discusses, and applauds, the implications of this new state court activism for the structure of American federalism.



First Things First: Rediscovering the States' Bills of Rights
Hans A. Linde Willamette
University College of Law

The first annual Judge Irving A. Levine Memorial program was held on May 16, 1979, in College Park, Maryland. The topic of the program was "States' Bills of Rights."

Justice Linde's speech, set forth below, addressed the failure of state courts and lawyers to decide questions of constitutional rights under their own state constitutions when state law protects the interest at stake. Justice Linde suggests that a state court confronted with a constitutional question should always examine its state constitution before looking to the Federal Constitution.

Page 382 Excerpt:

It is the fourteenth amendment that has bound the states to observe the guarantees of the Federal Bill of Rights. I do not underestimate that crucial role of the fourteenth amendment. But the effect has gone beyond assuring that state officials respect the rights guaranteed by federal law. It has led many state courts and the lawyers who practice before them to ignore the state's law, enforcing only those personal rights guaranteed by federal law, or to assume that the state's own guarantees must reflect whatever the United States Supreme Court finds in their federal analogues. We tend to forget how recently the application of the Federal Bill of Rights to the states developed. Throughout the nineteenth century and the first quarter of the twentieth, state courts decided questions of constitutional rights under their own state constitutions. In 1925, it was only a hypothesis that the states were bound by the first amendment.' That was really settled only after 1937.6  Fifth amendment guarantees against compulsory self-incrimination and double jeopardy did not bind the states until 1964 and 1969, respectively. 7  I shall not go through the catalogue; most of the decisions binding the states to observe the procedures of the fourth, fifth, and sixth amendments date from the same period.' Of course, the states had all these guarantees in their own laws long before the Federal Bill of Rights was applied to the states. State courts had been administering these laws, sometimes generously, more often not, for a century or more without awaiting an interpretation from the United States Supreme Court. Historically, the states' commitment to individual rights came first.




State constitution

A state constitution is the governing document of a U.S. state, comparable to the United States Constitution which is the governing document of the United States. Some states have had multiple constitutions and since each state drafts its own, there is great diversity between them, though all have some basic concepts in common.[1]

The average length of a state constitution is 26,000 words (compared to about 4,500 words for the U.S. constitution). The longest state governing document is that of Alabama, which has over 172,000 words. That document is also the most amended state constitution in the Union, with over 770 amendments. The average state constitution has been amended about 115 times. The oldest state constitution still in effect is that of Massachusetts, which took effect in 1780. The newest is the Rhode Island Constitution, which was ratified by voters in 1986 after a constitutional convention was held which proposed deleting superseded language and reorganizing the state's 1843 Constitution. The Georgia Constitution is the next youngest and was ratified in 1983.

Read and view the list of state constitutions at BALLOTPEDIA




Amending state constitutions

Each American state has its own rules and procedures that govern how its constitution can be amended.

The ways a state constitution can be amended or revised are:

State constitutions can also be changed through judicial action. This can happen when a federal court declares that part of a state's constitution is unconstitutional under the U.S. Constitution and must be removed or treated as null. It can also happen when a state court declares that an amendment to the state's constitution is unacceptable.  Read more at

Tocqueville warns how administrative despotism might come to a democracy like America (1840)

Alexis de Tocqueville (1805-1859) predicted that above the “crowd of similar and equal men” in a democracy will emerge “an immense and tutelary power” which will create a new kind of despotism:

After having thus taken each individual one by one into its powerful hands, and having molded him as it pleases, the sovereign power extends its arms over the entire society; it covers the surface of society with a network of small, complicated, minute, and uniform rules, which the most original minds and the most vigorous souls cannot break through to go beyond the crowd; it does not break wills, but it softens them, bends them and directs them; it rarely forces action, but it constantly opposes your acting; it does not destroy, it prevents birth; it does not tyrannize, it hinders, it represses, it enervates, it extinguishes, it stupifies, and finally it reduces each nation to being nothing more than a flock of timid and industrious animals, of which the government is the shepherd.

About this Quotation:

In the second last chapter of his book on Democracy in America (1840) Tocqueville gathers his thoughts in order to make some predictions about how “despotism” might come to a democratic nation like America. In the first volume (1835) there is much discussion of the relationship between “those who govern” and “the governed”, the dangers of “the despotism (or the tyranny) of the majority,” and the different problems posed by “governmental centralization” and “administrative centralization”, but he always counters with arguments about how the particular circumstances and the character of Americans might overcome these challenges. Five years later he seems not to be so sure that this will be possible in the long run. He confesses that he has struggled to find a name for this new kind of despotism he thinks democracies are prone to - “The despotism that I fear for the generations to come has no precedent in the world and lacks a name. I will call it administrative despotism for lack of anything better.” He predicts that this newer, gentler form of servitude will emerge from within the democratic legislature itself and will envelop the entire country. Nevertheless, he concludes that “the true friends of liberty” still have an obligation to “constantly, stand up and be ready to prevent the social power from sacrificing lightly the particular rights of some individuals to the general execution of its designs.”


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