Law Review Article

To all my Ratburger friends, I was published in an online law journal. You can find the article here:

https://www.natlawreview.com/article/sanctuary-federalism-affirming-separation-powers-between-states-and-federal

I am going to warn you all now, you probably won’t agree with it, but I still think you will all enjoy it and find something to think about.

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26 thoughts on “Law Review Article”

  1. If one believes in federalism, process matters. We have reached the point where most any brake on federal power is a good thing. I only wish it was politically possible that local governments at all levels would resist the many federal constraints on individual liberties (It is only the fact that the MSM mis-portrays the federal power as benevolent and correct as to most every other exercise, which prevents this from happening). Protecting Second Amendment rights, for example, comes to mind as a fertile field for local protection.

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  2. civil westman:
    If one believes in federalism, process matters. We have reached the point where most any brake on federal power is a good thing. I only wish it was politically possible that local governments at all levels would resist the many federal constraints on individual liberties (It is only the fact that the MSM mis-portrays the federal power as benevolent and correct as to most every other exercise, which prevents this from happening). Protecting Second Amendment rights, for example, comes to mind as a fertile field for local protection.

    I knew their was another lawyer in the group but couldn’t think who. You studied law, right?

    M1919A4 is also a lawyer. I hope he chimes in.

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  3. civil westman:
    If one believes in federalism, process matters. We have reached the point where most any brake on federal power is a good thing. I only wish it was politically possible that local governments at all levels would resist the many federal constraints on individual liberties (It is only the fact that the MSM mis-portrays the federal power as benevolent and correct as to most every other exercise, which prevents this from happening). Protecting Second Amendment rights, for example, comes to mind as a fertile field for local protection.

    It isn’t just the MSM that teaches that. I am going through Con Law II this semester and you better believe that incorporation of the Constitution to apply to the States is taught as though it had always been, it was just not utilized until after the Civil War. That’s how they teach it. They teach any notion of the federal constitution applying only to the general government as “odd.” In fact, in a dissent from Justice Thomas explaining that the words “Congress shall make no law” cannot possibly apply to the states was viewed as though it had been brought down from Mars. Until this type of thinking is changed, you will not see states break free of the federal yoke.

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  4. New York State Law, because of the Democrats (progressives) that write it, too often conflicts with federal law. However, certainly in the area of immigration, this is the jurisdiction of the Federal government. I agree with the sentiment of the article, but the reality here in New York is that states can hijack issues for their own political gain and leave the citizens with confusing laws, and rule of rulers, instead of rule of law, as state constitution had originally intended. The government that governs least governs best; we are far, far from that point in New York State, and need methodologically head back in that direction.

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  5. 10 Cents:

    civil westman:
    If one believes in federalism, process matters. We have reached the point where most any brake on federal power is a good thing. I only wish it was politically possible that local governments at all levels would resist the many federal constraints on individual liberties (It is only the fact that the MSM mis-portrays the federal power as benevolent and correct as to most every other exercise, which prevents this from happening). Protecting Second Amendment rights, for example, comes to mind as a fertile field for local protection.

    I knew their was another lawyer in the group but couldn’t think who. You studied law, right?

    M1919A4 is also a lawyer. I hope he chimes in.

    Yes, I have a J.D. and was formerly admitted to the bar. I really only dabbled in law and continued to practice anesthesiology. I originally thought that having both an M.D. and  J.D. would improve my work life and self-esteem. Twice wrong!More than any other single event, my horror at the state of the law turned me into a libertarian/conservative. I am still recovering from the exercise.

    As an interesting sidelight, I can say that other than the lost opportunity cost of attending law school (I only worked in anesthesia part-time during the three years of school), law school turned out to be a wash economically. You see, a few years after finishing law school – while still admitted to the bar – a medical colleague came to me for legal advice regarding a long-term contract with a large company. I analyzed the facts and figured that it would qualify for a class action lawsuit. I put together the basics of the complaint and referred it to a firm which specialized in class actions. A few years later, the referral fee I received as a result of the successful suit paid just about exactly for my three years of law school tuition.

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  6. An MD and a JD! You do know that most of us here are just schlubs, right? Are you sure you want to hang out here?

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  7. Larry Koler:
    An MD and a JD! You do know that most of us here are just schlubs, right? Are you sure you want to hang out here?

    With the right amount of anesthesia painful things can be endured.

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  8. Larry Koler:
    An MD and a JD! You do know that most of us here are just schlubs, right? Are you sure you want to hang out here?

    Truth be told, Larry, credentials are overrated. In our technocratic and rigorously “non-judgmental” culture, singularly dedicated to “diversity” (of everything except thought), diplomas have become chits one turns in or displays so as to receive one’s entitled job or position or to claim authority over others (provided one’s skin color, gender, national origin, sexual orientation doesn’t run into some “non-existent” – though nonetheless disqualifying – quota).

    I have written in other essays that the real reason I pursued outward and visible accomplishments (I also have a commercial pilot’s license) was in a vain attempt to cause others tell me that I am a valuable and maybe even lovable human being, despite what I knew about myself. My inner belief was (and to a lesser degree remains to this day): “if you really knew me, if you saw who really inhabits my skin – you wouldn’t want to have anything to do with me.” Even after the accomplishments , I thought I had fooled everybody. So, being told by others that I was OK never had the power to change how I felt about myself anyway. In short, I am at home here as a schlub’s schlub.

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  9. Robert A. McReynolds:

    civil westman:
    If one believes in federalism, process matters. We have reached the point where most any brake on federal power is a good thing. I only wish it was politically possible that local governments at all levels would resist the many federal constraints on individual liberties (It is only the fact that the MSM mis-portrays the federal power as benevolent and correct as to most every other exercise, which prevents this from happening). Protecting Second Amendment rights, for example, comes to mind as a fertile field for local protection.

    It isn’t just the MSM that teaches that. I am going through Con Law II this semester and you better believe that incorporation of the Constitution to apply to the States is taught as though it had always been, it was just not utilized until after the Civil War. That’s how they teach it. They teach any notion of the federal constitution applying only to the general government as “odd.” In fact, in a dissent from Justice Thomas explaining that the words “Congress shall make no law” cannot possibly apply to the states was viewed as though it had been brought down from Mars. Until this type of thinking is changed, you will not see states break free of the federal yoke.

    I agree completely. My reference to the MSM related merely to the (mis-)perception they create as to the political climate on any given issue. Given their portrayal of the federal power generally as God-like, they create the self-reinforcing illusion that it ought only be resisted for those causes the received wisdom of leftists requires.

    For example, we are likely on the cusp of federal/state conflict over the right to keep and bear arms. Massachusetts recently outlawed possession of almost every semi-automatic weapon – including those most widely held. The federal district court just upheld the law, averring that weapons like the AR-15 are NOT protected by the Second Amendment because they are weapons useful to the military. Say the feds ban “assault weapons” (set aside for the moment the fact that what the district court (primed to make this false statement of fact by years of MSM propaganda) calls “assault weapons” are no such thing in reality as they lack full-auto function; an army using them would be annihilated). Many state constitutions recite protection of the right to keep and bear arms and some will undoubtedly say these same weapons are protected by the state’s constitution. I doubt the MSM will find the federalism principle you correctly propound in your article – which redounds to the benefit of non-citizens who are present in the country illegally – applicable when it comes to to the rights of citizens when it comes to their ability to legally possess guns.

    A regular curiosity of MSM opinion as to many issues is implication that illegally-present non-citizens somehow have superior and more absolute rights than do (what used to be considered) ordinary law-abiding and tax-paying citizens. Political sloganeering might say: “undocumented immigrants have the right to enter and stay here, while natural born citizens have the right to pay for their entitlements and they better like it, too (or at least keep their mouths shut, lest the MSM brand them racists, nativists, xenophobes, etc.).”

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  10. civil westman:
    I can say that other than the lost opportunity cost of attending law school (I only worked in anesthesia part-time during the three years of school), law school turned out to be a wash economically.

    Aside from your revulsion at the state of the law, you probably learned some interesting, possibly even useful, things. Might not that have made the opportunity cost of law school worthwhile?

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  11. civil westman:

    Robert A. McReynolds:

    civil westman:
    If one believes in federalism, process matters. We have reached the point where most any brake on federal power is a good thing. I only wish it was politically possible that local governments at all levels would resist the many federal constraints on individual liberties (It is only the fact that the MSM mis-portrays the federal power as benevolent and correct as to most every other exercise, which prevents this from happening). Protecting Second Amendment rights, for example, comes to mind as a fertile field for local protection.

    It isn’t just the MSM that teaches that. I am going through Con Law II this semester and you better believe that incorporation of the Constitution to apply to the States is taught as though it had always been, it was just not utilized until after the Civil War. That’s how they teach it. They teach any notion of the federal constitution applying only to the general government as “odd.” In fact, in a dissent from Justice Thomas explaining that the words “Congress shall make no law” cannot possibly apply to the states was viewed as though it had been brought down from Mars. Until this type of thinking is changed, you will not see states break free of the federal yoke.

    I agree completely. My reference to the MSM related merely to the (mis-)perception they create as to the political climate on any given issue. Given their portrayal of the federal power generally as God-like, they create the self-reinforcing illusion that it ought only be resisted for those causes the received wisdom of leftists requires.

    For example, we are likely on the cusp of federal/state conflict over the right to keep and bear arms. Massachusetts recently outlawed possession of almost every semi-automatic weapon – including those most widely held. The federal district court just upheld the law, averring that weapons like the AR-15 are NOT protected by the Second Amendment because they are weapons useful to the military. Say the feds ban “assault weapons” (set aside for the moment the fact that what the district court (primed to make this false statement of fact by years of MSM propaganda) calls “assault weapons” are no such thing in reality as they lack full-auto function; an army using them would be annihilated). Many state constitutions recite protection of the right to keep and bear arms and some will undoubtedly say these same weapons are protected by the state’s constitution. I doubt the MSM will find the federalism principle you correctly propound in your article – which redounds to the benefit of non-citizens who are present in the country illegally – applicable when it comes to to the rights of citizens when it comes to their ability to legally possess guns.

     

    This section is exactly correct, and believe me, I am not nearly so naive to think that this sudden burst of “States’ Rights” coming from the Left is going to stay when and if a Democrat takes the White House again. This is purely a fit of pettiness on their part. However, it is important at this moment not only to chronicle it, but to encourage more of this type of assertion by the States because then they will completely naked before the voters when the Right does it in the future.

    Aside from the political angle of this, I think it is important too for Conservatives to see the doctrine of federalism put into practice with an issue that they disagree because the important thing is not that illegals in California or Connecticut get to dodge immigration enforcers, but that in order to truly embrace liberty and our system as it was ratified, we must come to the conclusion that other states where we don’t live might do things different from what we would want.

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  12. Robert A. McReynolds:
    I am going to warn you all now, you probably won’t agree with it, but I still think you will all enjoy it and find something to think about.

    I find much to agree with in the article; federalism is worthy of vigorous defense and the central government often oversteps its authority. It is clearly overreach to command local officials to devote resources to federal ends. Nevertheless, I have three objections:

    1. A limited central government with sovereign states is not the world we live in. Of all the areas where the central government should have absolute authority, immigration policy is among the most important. Like it or not, we have come to accept federal intrusion in a multiplicity of areas, most of which are not even constitutionally part of federal responsibility. And by we I include the judiciary. It’s not just de facto, it’s also de jure acceptance. If you’re going to call for a pull-back of federal authority in any area, immigration is among the last to target. The Left is conveniently on board with assertion of federalism because it suits them but they’ll drop it like hot coals. Get a consensus on federalism in a broader context, reversing federal incursions in other areas first. Otherwise, the Left will just use you for a one-night stand and not respect you in the morning.
    2. Regardless of judicial precedent, I don’t see any problem with H.R. 3003.* If states don’t want to follow federal rules, they can refuse federal money. When we accept a government contract, we’re required to sign on to all kinds of stuff that’s mostly irrelevant to the work being done. I believe in the golden rule in such cases: he who has the gold makes the rules. It’s at the basis of capitalism and we’re allegedly a capitalist country. If states are really seeking a sovereign, arms-length relationship with the federal government, they must also accept the transactional nature of federal funds.
    3. You quote a Supreme Court decision (South Dakota) concerning “…induc[ing] the States to engage in activities that would themselves be unconstitutional.” Yet by declaring themselves sanctuaries, states and localities are doing the opposite: engaging in activities that subvert federal law. Specifically, they are harboring individuals who are (or may be) in violation of constitutional federal statutes. Surely, harboring criminals is illegal. Even if some of these individuals have not been convicted of anything, a detainer requires probable cause. Are there other areas where law enforcement officers do not cooperate on this level?

    *Bills that originate in the US House are designated H.R. xxx. Your article refers to the bill as HB 3003 in the text, though it’s correct in the footnotes. A quick search shows that HB is only used by certain state legislatures to designate bills. I’m surprised the editor didn’t catch this. If you can, you might wish to correct the text.

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  13. Robert A. McReynolds:
    This section is exactly correct, and believe me, I am not nearly so naive to think that this sudden burst of “States’ Rights” coming from the Left is going to stay when and if a Democrat takes the White House again. This is purely a fit of pettiness on their part. However, it is important at this moment not only to chronicle it, but to encourage more of this type of assertion by the States because then they will completely naked before the voters when the Right does it in the future.

    Can’t agree with this part. The Left acknowledges no past; every day is new. Most voters don’t care either; they have the memory of fruit flies.

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  14. drlorentz:

    Robert A. McReynolds:
    This section is exactly correct, and believe me, I am not nearly so naive to think that this sudden burst of “States’ Rights” coming from the Left is going to stay when and if a Democrat takes the White House again. This is purely a fit of pettiness on their part. However, it is important at this moment not only to chronicle it, but to encourage more of this type of assertion by the States because then they will completely naked before the voters when the Right does it in the future.

    Can’t agree with this part. The Left acknowledges no past; every day is new. Most voters don’t care either; they have the memory of fruit flies.

    Sadly that is mostly true. Although I think the people are politically stupid, they can surprise every now and then.

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  15. drlorentz:

    Robert A. McReynolds:
    This section is exactly correct, and believe me, I am not nearly so naive to think that this sudden burst of “States’ Rights” coming from the Left is going to stay when and if a Democrat takes the White House again. This is purely a fit of pettiness on their part. However, it is important at this moment not only to chronicle it, but to encourage more of this type of assertion by the States because then they will completely naked before the voters when the Right does it in the future.

    Can’t agree with this part. The Left acknowledges no past; every day is new. Most voters don’t care either; they have the memory of fruit flies.

    Good point. We already have so many things in which the left can see things our way on their issues but never for us. They always tell us that: “Well, yes, that’s true but in your case there is this exception….”

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  16. @civilwestman, schlub or not, I have learned much from reading your posts/comments, respect you and your contributions, and I hope you continue to share your perspective/thoughts.

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  17. Dr Lorentz:
    … they have the memory of fruit flies.

    I am loving this; intend to use it as frequently as possible over the next few weeks just for the chuckle it gives me.

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  18. drlorentz:

    Robert A. McReynolds:
    I am going to warn you all now, you probably won’t agree with it, but I still think you will all enjoy it and find something to think about.

    I find much to agree with in the article; federalism is worthy of vigorous defense and the central government often oversteps its authority. It is clearly overreach to command local officials to devote resources to federal ends. Nevertheless, I have three objections:

    1. A limited central government with sovereign states is not the world we live in. Of all the areas where the central government should have absolute authority, immigration policy is among the most important. Like it or not, we have come to accept federal intrusion in a multiplicity of areas, most of which are not even constitutionally part of federal responsibility. And by we I include the judiciary. It’s not just de facto, it’s also de jure acceptance. If you’re going to call for a pull-back of federal authority in any area, immigration is among the last to target. The Left is conveniently on board with assertion of federalism because it suits them but they’ll drop it like hot coals. Get a consensus on federalism in a broader context, reversing federal incursions in other areas first. Otherwise, the Left will just use you for a one-night stand and not respect you in the morning.
    2. Regardless of judicial precedent, I don’t see any problem with H.R. 3003.* If states don’t want to follow federal rules, they can refuse federal money. When we accept a government contract, we’re required to sign on to all kinds of stuff that’s mostly irrelevant to the work being done. I believe in the golden rule in such cases: he who has the gold makes the rules. It’s at the basis of capitalism and we’re allegedly a capitalist country. If states are really seeking a sovereign, arms-length relationship with the federal government, they must also accept the transactional nature of federal funds.
    3. You quote a Supreme Court decision (South Dakota) concerning “…induc[ing] the States to engage in activities that would themselves be unconstitutional.” Yet by declaring themselves sanctuaries, states and localities are doing the opposite: engaging in activities that subvert federal law. Specifically, they are harboring individuals who are (or may be) in violation of constitutional federal statutes. Surely, harboring criminals is illegal. Even if some of these individuals have not been convicted of anything, a detainer requires probable cause. Are there other areas where law enforcement officers do not cooperate on this level?

    *Bills that originate in the US House are designated H.R. xxx. Your article refers to the bill as HB 3003 in the text, though it’s correct in the footnotes. A quick search shows that HB is only used by certain state legislatures to designate bills. I’m surprised the editor didn’t catch this. If you can, you might wish to correct the text.

    Edit: I see what the issue is, thanks for pointing it out.

    1. I realize that we are no longer living in the republic as it was founded. We haven’t lived in that republic since 1865 when the compact theory was ruthlessly attacked by a Republican Party that was tired of being thwarted by the constitution. However, that is no reason for us to just throw up our hands and say, “well, we gotta deal with what we have and make no effort to steer the ship in the right direction.” That kind of thinking is what landed Conservatives with the choice of extreme Leftist policies or just slightly to the Left policies (think McCain vs Obama or Romney vs Obama). In the end, you are still moving in a direction that you don’t want to go. Like have said before, we need to encourage the States to take similar stances on various issues across the board. California and Connecticut are not the only States engaged in nullification or asserting their sovereign duties to their citizens. Wyoming did it visa vie the gun grab by Obama in 2012. Colorado and Oregon did it regarding marijuana (again another example that Conservatives don’t like). Or the many States that have done it regarding the right to try experimental drugs that could save people’s lives yet sit on the FDA unapproved list. The point is that what I have hit on in my law journal piece actually has a pretty wide following, the people just may not understand that it is an original principal type of activity.

    2. I think you have a good point here, and I for one would love to see the States tell the feds to keep its damned money. But my piece doesn’t really shut the door on the general government when it comes to withholding federal funds from States. It merely says that the funds cannot necessarily be used to coerce the States to enforce federal laws. Your statement about controlling the money means you are in control is a recipe for tyranny in my opinion. We are not dealing with contracts. We are dealing with the general government telling the States that they must expend resources that they either don’t have or don’t want to use in the manner dictated by Washington. Are you saying that Washington should be making determinations when it so desires as to how a State legislature uses its people’s tax revenue? I’m not so sure I would call that a “Conservative” principle.

    3. They are doing no such thing. There is absolutely nothing in the State laws that I cited that says the States can or are subverting the enforcement of federal immigration laws. In fact, in the case of the Connecticut law, it is explicit about when to alert federal immigration authorities about a suspected illegal. Here I think you are actually arguing against the superficial issue (sanctuary cities) and not so much the overarching principal behind it (States’ Rights vs federal power). You don’t like sanctuary cities. Frankly I don’t like them either. But where you and I differ is that you are willing to overthrow the important issue (the Compact Theory) for the short term issue (immigration). This is the same line of argument used to justify the Lincoln administration’s usurpation of Constitutional authority in the 1860s. Yes slavery was bad and was a very damaging aspect of our society in that time, but was forcing the South to get rid of it worth losing the Constitutional republic as it was ratified? For me, the answer is no. For others they say to hell with our Constitution, change those societies to fit my desired cultural structure. Again, sounds more like Leftist thinking than anything else.

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  19. Great discussion. Thanks for this.

    I think I side with @drlorentz slightly more than with you Robert. But, you make some excellent points and you are pointing in the direction that anyone who takes an oath to defend the Constitution needs to be going.

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  20. Robert, thank you for addressing my comment in such detail. Also, I acknowledge my amateur status in this discussion so I hope you’ll indulge me as I respond to your reply.

    1. This put me in mind of a recent Law Talk podcast, in which Epstein, a fairly strict textualist, acknowledged that custom and long-standing usage have made irreversible changes in the application of the Constitution. He was specifically referring to war powers but in previous instances he’s acknowledged that the Commerce Clause has been abused beyond all recognition and its original meaning is not coming back. One has to be realistic about politics. You can stick to purist principles and remain forever on the fringes or engage with the system as it is. Nullification is not a principle; it’s a flag of convenience to get whatever people (mostly Leftists, btw) want: more weed, more illegals. They do not respect any principle; they just use it like a Kleenex and throw it out when finished. Supporting it in these selected cases will do nothing to advance it in others. I’ve already made this point and you seemed to agree in part. I also refer you to my previous remark about voters and fruit flies.

    2. I don’t agree with the characterization of withholding money as “a recipe for tyranny.” By that reasoning, capitalism is a recipe for tyranny: you aren’t doing what I want so I refuse to pay you. I’m arguing that federal grants to states and municipalities are transactional: the feds give the money to encourage or produce behavior just as I pay a mechanic to fix my car. If he refuses to fix it because of my political beliefs or any other reason, then I refuse to pay. I agree that it is the place of the Congress to make that call, not the president unilaterally. He who pays the piper calls the tune. The saying is even older than capitalism. I endorse it unreservedly.

    3. Perhaps I don’t understand the controversy correctly. It was my understanding that states and localities were refusing to honor detainers, which are issued on probable cause. This is the subversion of federal immigration law as it obstructs its enforcement. California is also threatening to penalize employers who cooperate with federal immigration authorities. Federal law is supreme in this area, as well it should be. States and cities cannot have their own foreign policy.

    Finally, I strenuously object to this characterization:

    Robert A. McReynolds:
    the important issue (the Compact Theory) for the short term issue (immigration)

    Immigration is not merely some trivial short-term issue. It is of fundamental importance for the future of this country – far more important than any single constitutional principle, especially one that is essentially a dead letter. It’s not for nothing that Derb* calls immigration the National Question. I also call your attention what Steve Sailer calls the World’s Most Important Graph.

    In a republic, the composition of the electorate is the most significant fact. The Constitution can be shredded by the electorate: indirectly via the courts, directly via the ballot box, or by public apathy. No matter which way it happens, the people make the call. See point #1.

    *John Derbyshire and I are both immigrants to the US and naturalized US citizens. Unlike Derb, my baby is American made.

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  21. Doc,

    You must understand that you and I are both seeking the same thing: a restoration–even if slightly–of our republic. I have no doubt about that given what I have seen you write on that other sight and here. If we could achieve our goal, we wouldn’t have to worry all that much about the demographic change caused by illegal immigration. Let the States decide how this demographic change effects them. I doubt we will ever see eye to eye on this, but if we could encourage our State legislatures and governors to stand up to the general government, I am more than certain the tides will shift in our favor.

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  22. Robert A. McReynolds:
    You must understand that you and I are both seeking the same thing: a restoration–even if slightly–of our republic.

    Yes, of course. Ideally, it would go your way. It just seems too much to ask.

    Robert A. McReynolds:
    I am more than certain the tides will shift in our favor.

    I so hope you are right. I remain worried. Maybe demography is not destiny but look at what’s happening in Europe. They are very screwed.

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