Religious Test


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Al Norris
October 15, 2005, 12:47 AM
There are reasons that I oppose the current nominee for Justice of the Supreme Court, Harriet Miers.

What are the qualifications of this nominee? Findlaw (http://pview.findlaw.com/view/2172806_1?channel=LP) has her litigation record. The Washington Post has her profile here (http://www.washingtonpost.com/wp-dyn/content/article/2005/10/03/AR2005100300305.html).

Certainly, nothing in those two sources stands out and gets my attention that this nominee has ever even thought of Constitutional issues. However, looking at past Justices records, she is at least as qualified as Souter and Thomas. While I would dearly like another Thomas on the Court, I also don't want another Souter sitting there.

Bush is once again stacking the deck with people who are loyal to him and believe in his personal goals of power (Think war on terror and executive power, folks). Do we want someone who would turn the Court even more towards Big Business and Big Government? I would hope to be proven wrong in this with Roberts.. but I fail to see him in any other light ( See Roberts dissent in USA v. Jackson (http://pacer.cadc.uscourts.gov/docs/common/opinions/200507/04-3021a.pdf) which starts on page 23 of the PDF).

The problem with Miers is not that she has no paper trail, but that she was picked based upon Bush's feelings of loyalty. In this case, loyalty means that she will more often than not side with the executives authority (even after Bush is a memory), and possibly the authority of the Congress. Anytime a judge looks at the Constitution through the "lens" of the law, there is a problem.

Note that the Constitution is the "Lens" through which all laws should be viewed. A Supreme Court Judge should not put Stare Decisis ahead of what the Constitution actually says and what was meant by it at the time of the ratification. Anyone who wants the Constitution to say anything else, needs to push for an amendment, not some new interpretation.

But now, it appears that "loyalty" was not the sole criteria upon which her selection was made. We have now been made aware that her religion played a role in that selection.

"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Article VI cl. 3, U.S. Constitution.

President Bush just recently has taken a gamble, to keep part of his base, by suggesting that some part of the criteria by which she was selected, was her religion.

To many, this approximates a violation of the Religious Test clause of the Constitution. Afterall, the President may select for appointment, anyone he wants. He may use whatever criteria he wants. But if he publically states that said nominating criteria was a religious factor, has he violated the letter of the law? Article II sec. 2 cl. 2 states, "...he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... Judges of the supreme Court..." There is no statement of how he may select for this public office.

Has the Court addressed this issue?

"[T]he Religion Clauses -- the Free Exercise Clause, the Establishment Clause, the Religious Test Clause, Art. VI, cl. 3, and the Equal Protection Clause as applied to religion -- all speak with one voice on this point: Absent the most unusual circumstances, one's religion ought not affect one's legal rights or duties or benefits. As I have previously noted, the Establishment Clause is infringed when the government makes adherence to religion relevant to a person's standing in the political community." Bd. of Educ. v. Grumet, 512 U.S. 687, 715 (O'Connor, J., concurring in part and concurring in the judgment) (citation and internal quotation marks omitted).

"Direct government action endorsing religion or a particular religious practice is invalid under this approach because it sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community." Lynch v. Donnelly, 465 U.S. 668, 687-689 (1984) (O'Connor, J., concurring). See also Abington School District v. Schempp, 374 U.S. 203 (1963). "[the] objective is to prevent, as far as possible, the intrusion of either [Church or State] into the precincts of the other." Larkin v. Grendel's Den, 459 U.S. 116 (1982).

It can therefore be viewed as Bush having used Miers religious affiliation as a criteria by which she was selected, and therefore in violation of the Constitution.

It can also be argued that Bush merely mentioned her religion in answer to the question, who she is. (It being inescapable that a persons religion is indeed part of who they are.) Such a mere admittance is therefore not violative and is nonjusticiable.

In this case, I think Bush is making a shrewd political ploy designed to placate the religious right and (some) other conservatives. It may ultimately backfire, as I also think Bush did in fact use such a criteria in the selection process, which is violative of the process.

But is this not a personal criteria? Doesn't Bush have that right?

Yes it is personal. And being personal, he should have keep his mouth shut. If his only defense for this pick is her religion, then the pick is absurd.

I'll go one further, it passes a religious test for the nominee and is flatly forbidden by the Constitution. Unfortunately for Bush, he is not just a private citizen. He is the President of the United States. When selecting a nominee for appointment to public office, he cannot use as a defense for his action, the persons religion. Whether for or against the person. Sure, we may think we know this was done. And in the initial statements, Bush intoned that people wanted to know who Miers was and her religion is certainly part of that equation. But in later interviews and statements, Bush has pushed this as a defense of her expertise. What is just as bad or worse, is that his administration (through his other advisers) is now touting Miers religious preference to anyone who will listen and to select groups. Now we have crossed the line from the personal to the governmental. In doing this, a religious test has been established by the executive.

Bush may not have wanted this to be so, in which case he should have kept his mouth closed. Let people speculate all they want. But by the constant voicing of this position, Bush has all but placed himself and his nominee outside of the Constitution as it regards political appointments.

It is fast becoming that the only qualification for appointment is in fact her religion. So I have to ask the question: Do we really want such considerations to be a valid vehicle for qualification?

I don't know if anyone remembers, but when Roberts was making his statement before the Senate, he acknowledged that he was Catholic. He went on to say that his religious preferences would not play into how he would view a case to be tried before him. He was very aware of how the majority of people view Catholics and their obedience to Rome. What he did was to immediately remove the religious test from the docket. Very good move on his part.

Now contrast this with Miers. After all the hoopla about her religious beliefs, has she made such an affirmative defense, or is she silent on the matter? Yes, it is Bush, his administration and the Media that are making such a big deal over this, but her own silence is nothing short of deafening!

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Hawkmoon
October 15, 2005, 03:01 PM
I don't think the religious test would have applied to Roberts. It's one thing to say "Thou shalt be a ___ in order to be nominated." That's a religious test. IMHO that's a very different matter from a number of senators deciding they don't want a Supreme Court Justice who answers to an authority other than the Constitution of the United States. That isn't establishing a religious test, that's applying common sense. Roberts defusing that argument was also common sense ... I just hope he was being honest.

Miers' nomination, on the other hand, could be argued to be a violation. You raise an interesting issue: if the rules are that no religious test is "required," may the President apply his own, personal religious test anyway? I am inclined to think that the answer should be "no," if for no other reason that any other qualified candidates would automatically be in a situation of having been subjected to a religious test which they could not pass.

Very good point.

pax
October 15, 2005, 03:39 PM
Good thread so far and I hope it stays that way.

[moderator voice]

As long as the discussion stays focused upon civil liberties, and the question of whether a religious test applies or does not apply to the Harriet Miers nomination, the thread will stay open. If it degenerates into "Christians are bigots vs. Atheists are fools," it'll be closed.

[/moderator voice]

pax

pax
October 15, 2005, 03:52 PM
Al, thought-provoking post for sure.

President Bush just recently has taken a gamble, to keep part of his base, by suggesting that some part of the criteria by which she was selected, was her religion.
This could be a surprise to no thinking person. As you pointed out a bit later:
It can also be argued that Bush merely mentioned her religion in answer to the question, who she is. (It being inescapable that a persons religion is indeed part of who they are.) Such a mere admittance is therefore not violative and is nonjusticiable.
Al, it sounds as though you are arguing that it was okay for him to consider Miers' religion as part of the gestalt of her entire person -- character, experiences, qualifications, etc -- but that him saying that her religion was part of what he considered means that he violated the process.

In your opinion, if he did indeed consider her religion as part of the entire package, was that in itself violative of the process, if that wasn't his only criteria for choosing her?

and

Would you go so far as to state that you would prefer the President not tell us his reasons for selecting a particular nominee?

To my way of thinking, sunlight is the best disinfectant. If the President is using inappropriate criteria, I surely want to know so before the nominee is sworn in. Better to have a President who talks too much than one who keeps his mouth shut about such things.

Now contrast this with Miers. After all the hoopla about her religious beliefs, has she made such an affirmative defense, or is she silent on the matter? Yes, it is Bush, his administration and the Media that are making such a big deal over this, but her own silence is nothing short of deafening!
When do the hearings start? Seems to me that her silence is merely appropriate for this stage of the political game.

pax

stevelyn
October 15, 2005, 04:02 PM
This dosen't surprise me considering part of why Bush ran for the presidency was based on "I think God's telling me to run for President" after attending a chruch service.:rolleyes: :scrutiny:

The above was part of a PBS Frontline story done on Bush.

Waitone
October 15, 2005, 04:17 PM
Embattled presidents pull in their defensive perimeters when it gets too hot on the line. If Bush nominated the person with characteristic elements of his base demand, he would have fought the mother of all confirmation battles with democrats. So he opts to reduce the length of his defensive positions by nominating someone whom only he knew (which BTW is the logical consequence of the path we've been on since Bork). His nomination of Meirs gives him a chance of having an agenda in the out years of his administration.

His REASON for nominating Meirs was her "unknown-ness" (can't spell the other word).

His EXCUSE for nominating Meirs was her religious belief system. While it may match that of Bush, he is seriously deluded if he thinks a particular religious belief system accurately represents a particular philosophical or political belief system. Meirs is an attempt to patch up the cornerstone of his base. What he didn't consider is his base is not composed of slobberin idiots. Members can think for themselves. They therefore have a hard time believing it wise to pull someone off the bench in a Pony League Game in TX and put them on the field during the 7th game of the world series. All of which helps explain why the nomination is drawing increasing fire and, to my tiny mind, in trouble.

Bush is the president who has given us in 5 short years quite a few attacks on our constitution. The list is long and distinguished but I like to use Campaign Finance Control as the perfect example. No one wanted it, no one asked for it. He saw it unconstitutional before it reached his desk. He signed it while questioning its constitutionality then relied upon the courts to do what he failed to do. What makes anyone think such a man will appoint someone to the supreme court who will faithfully interpret the constitution when he failed to act on his interpretation? I think it all a hoo-doo. The issue is accumulation of power and its maintenance. Respecting the constitution is window dressing.

TexasRifleman
October 15, 2005, 04:22 PM
There isn't any mention of "rules" for the process. The President nominates whoever he feels best for the job and the Senate confirms that.

He could nominate Forrest Gump if he wanted to, it would be up to the Senate to stop that.

Hopefully the Senate will stop this one, though I don't give that any chance of happening. I just pray he didn't just sell us all down the river.

Hawkmoon
October 15, 2005, 04:23 PM
You are incorrect in stating that nobody wants campaign finance reform/control. I do. I believe that ALL federal election campaigns should be financed by the federal government. Each candidate gets the same amount of money and can spend it however they wish.

End of discussion. I am sick to death of elected offices being bought by candidates using slush funds from special interests and PACs.

Of course, I am also in favor of strict term limits for senators and congresscritters.

Al Norris
October 15, 2005, 07:26 PM
Pax, it was OK for Bush to mention her religion as part of the gestalt of the person. What was not OK, was for either him or his advisors to begin using such as part of the criteria of selection. Why? Because it automatically knocks out many others from any consideration for the appointment (See Hawkmoon's statements). That's a religious test and is forbidden to him or the Congress. Worse, it would appear to violate the establishment clause of the 1st amendment as well... I could lay the groundwork for such, but I would much rather stay with the main topic.

The only thing we need to know about any candidate and their religion is whether or not their religion would affect the manner in which they judged an issue. If they can convince the Senate that it would not affect their judgment, then the matter is settled.

As much as I like the sun shining on all of the political process, if the President is to use a religious criteria in his selection, then he does need to keep his yap shut. It would appear to be common sense, but Bush is trying to get back part of his base...

As to when the hearings start? Next month (Nov.) as near as I can tell.

benEzra
October 15, 2005, 09:56 PM
You are incorrect in stating that nobody wants campaign finance reform/control. I do. I believe that ALL federal election campaigns should be financed by the federal government. Each candidate gets the same amount of money and can spend it however they wish.

The most offensive provisions of McCain-Feingold didn't have anything to do with campaigns. I'm speaking of the gag order on citizen's groups like GOA and the NRA, who are not allowed to tell me certain info about a candidate, or about legislation, within 60 days of an election, if they would have to spend a nominal amount of money to do so. So the evening news anchorperson is allowed to tell me that Candidate X is pro-gun to the hilt, and GOA is not allowed to inform me otherwise if that could be construed as opposing him, as I understand it.

1911 guy
October 16, 2005, 02:19 AM
I won't pretend to know what anybody in the decision making process was thinking, so I'll stick to generalities.
If the mention of her religion was a sidenote to make us citizens identify with her, then so be it. Many in this country identify themselves as Christians of some denomination, so it may be a good tactic to get folks to write their senators to push for confirmation.
If the mention was made to imply that there was indeed some tacit litmus test to gain nomination, that is bad. I'm a somewhat religious person myself, but part of that is realizing that I made a choice on my own what to believe and others should have the same choice. If the deck is stacked toward one ideology outside the constitution, that sets a very dangerous mood for everyone. I might agree with the views of judge or politician X, but if it becomes the norm to push a religion, who's to say the next batch won't be hostile to my beliefs?
So, long story short, I have no problem with her personal beliefs concerning God and religion whether I agree with them or not, so long as the court does not morph into some kind of monster that can at whim declare a line of thought or belief "wrong" based solely on the private opinions of the justices.
If Harriett Miers is a strict originalist who happens to have a strong faith, fine. If she or any other justice has a faith that prohibits others from enjoying their faith by reason of differing from the "appointed" faith, we've all got problems.

Hawkmoon
October 16, 2005, 04:55 AM
BenEzra --

You didn't have a post in this thread. I was responding to a statement by Waitone:
Bush is the president who has given us in 5 short years quite a few attacks on our constitution. The list is long and distinguished but I like to use Campaign Finance Control as the perfect example. No one wanted it, no one asked for it.
You and many other people may not have liked the bill that came out of Congress, but it is categorically incorrect to say that no one wanted or asked for campaign finance reform. A LOT of people asked for it and wanted it ... and still want it.

RealGun
October 16, 2005, 07:47 AM
If the mention of her religion was a sidenote to make us citizens identify with her, then so be it. Many in this country identify themselves as Christians of some denomination, so it may be a good tactic to get folks to write their senators to push for confirmation.
If the mention was made to imply that there was indeed some tacit litmus test to gain nomination, that is bad. I'm a somewhat religious person myself, but part of that is realizing that I made a choice on my own what to believe and others should have the same choice.

If the President is PC and evasive, he will be criticized for it. If he is forthcoming, calling a spade a spade, he will be even more criticized for it. Surely you realize that there are specific criteria that matter to a President doing a nomination. Call them litmus tests if you must, but the term is normally used in reference to Roe v Wade, which in turn can either mean legislating from the bench in general, or legalizing abortion at the federal level.

The best thing the President could do is nominate someone who would abide by the Constitution in spite of being an evangelical identified with a religious agenda. Why is it inconceivable that the law and dedication to duty would have greater influence than the pronouncements of some charismatic preacher?

It seems obvious to me that Bush brought up the subject of Miers religion to demonstrate that there was reason for the religious right to be encouraged rather than discouraged and then for his base and that of the GOP not to be fragmented over this nomination.

Even with some bizarre recess appointment, the Senate will have the last word here, so let's wait and see what happens.

roo_ster
October 16, 2005, 10:59 AM
So, would this supposed religious test of GWB's be pass/fail or merely provide bonus points? Or. perhaps we could consider it a tie-breaker between two identical twin potential nominees: both who have identical records down to their elementary school GPAs. But, one is a holy roller & the other is a confirmed materialist. :rolleyes:

********

I think some folks get all bent outta shape when others don't hide their religion behind their curtains and are willing to make biblical allusions. Go back and read our contry's past polemics. They are liberally salted with religion and biblical references.

If I were to get inside GWB's head, I would speculate that her religion was part of the package. More specifically, it was a consideration when evaluating her character.

Al Norris
October 16, 2005, 06:54 PM
So, would this supposed religious test of GWB's be pass/fail or merely provide bonus points? Or. perhaps we could consider it a tie-breaker between two identical twin potential nominees: both who have identical records down to their elementary school GPAs. But, one is a holy roller & the other is a confirmed materialist.
You are referring to Roberts as the other "twin potential nominee?"

I see you are confused as to the qualifications of the two. Roberts, you see, had to at least think of the various constitutional issues he addressed when he made oral arguments to the Supreme Court. Miers, on the other hand, cannot be said to have done this, as she has never practiced before the Texas State Supreme Court, let alone the SCOTUS.

That alone is a huge disparity in legal thinking. And qualifications.
I think some folks get all bent outta shape when others don't hide their religion behind their curtains and are willing to make biblical allusions. Go back and read our contry's past polemics. They are liberally salted with religion and biblical references.
Again, you miss the point. It is not whether or not someone chooses to wear their religion on their shirt sleeve (blouse?), or to keep their religion to themselves.

It is however, whether or not such a test of religion, for this nominee, has been used to pass over more qualified individuals. On the surface, that is the appearance.

Whatever the true motives of Bush may be, this is one blunder that may cost him, and the Republican Party, dearly.

roo_ster
October 18, 2005, 12:25 AM
You are referring to Roberts as the other "twin potential nominee?"

I see you are confused as to the qualifications of the two. Roberts, you see, had to at least think of the various constitutional issues he addressed when he made oral arguments to the Supreme Court. Miers, on the other hand, cannot be said to have done this, as she has never practiced before the Texas State Supreme Court, let alone the SCOTUS.
Someone is confused & it is not I, though I will take the hit for not being more obvious when wording my hypothetical arguments. These identical twin candidates are fictional. They are straw men used to make a point. If forced to give them names, I would call them "Hekyl & Jekyl."

Again, you miss the point. It is not whether or not someone chooses to wear their religion on their shirt sleeve (blouse?), or to keep their religion to themselves.

It is however, whether or not such a test of religion, for this nominee, has been used to pass over more qualified individuals. On the surface, that is the appearance.

Whatever the true motives of Bush may be, this is one blunder that may cost him, and the Republican Party, dearly.

It is however, whether or not such a test of religion, for this nominee, has been used to pass over more qualified individuals. On the surface, that is the appearance.

Whatever the true motives of Bush may be, this is one blunder that may cost him, and the Republican Party, dearly.
No, it wasn't Miers's religion that has been used to pass over more qualified individuals. It was her relationship with GWB, her sycopahncy, and GWB's prediliction to promote those he knows & trusts. The only other lawyerly-type who is as close to GWB is AG Gonzalez, & he is rumored to be working toward elective office in Texas.

IMO, only those overly sensitive to religious talk would come to the conclusion that Miers was chosen because of her religion, as there are plenty of other evangelical lawyers with greater qualifications. Re-read what GWB was saying in context. He was saying essentially, "Trust me. I know her character & philosophy. She's a good, steadfast, church-going gal."

If GWB required his appointees to be evalgelical christians, how does that explain all the Jews in his administration?*

GWB may pay a price for his poor choice, but it won't be because he chose an evangelical for SCOTUS, it'll be because of her mediocrity and GWB's playing fast & loose with his pledge to nominate to the SCOTUS those with views in the mold of Thomas & Scalia.

* Or, if you are of a conspiratorial bent, "What about the Joooooos! The Joooos are pulling his strings! Ask yourself, how else can the Joooos get enough manpower to achieve their ends?!?!? They need easily-led fodder to feed their war machine, baby! That's all the Bible-thumpes are! Where's my tinfoil! --Ack! Ack!-- The Bildebergers!! The Gnomes of Zurich! Black helos in my head! Tinfoil! Tinfoil! Cthulhu!

RealGun
October 18, 2005, 07:13 AM
In case there is any doubt about what the real issue is, at least in the news media's view, these are the syndicated story titles re Meirs from the last two days:

- Miers Mum on Opinion Regarding Roe V. Wade (AP)

- Harriet Miers: No One Knows How She Would Vote on Abortion Cases

reference CSPAN's capitalnews.org (sic)

Michigander
October 18, 2005, 07:36 AM
Up until she met GW (IIRC) in 1994, Miers was a supporter of Democrats.

Since then, she has supported Republicans.

This woman will be the next SC Justice, no doubt about it. It does not matter one way or the other what criteria GW used in selecting her, she has supported Dems and Reps along the way. She's a player, and when she turns out to be one of the liberal voices on the bench, GW will not be surprised one bit. He (and his cohorts) knows what he's doing.

It's a set-up.

We're all suckers.

bountyhunter
October 18, 2005, 03:03 PM
There are reasons that I oppose the current nominee for Justice of the Supreme Court, Harriet Miers.

But now, it appears that "loyalty" was not the sole criteria upon which her selection was made. We have now been made aware that her religion played a role in that selection.

Duhhhhh.

I started a thread asking if people were happy the next SC judge got picked because she was an Evangelical and that thread got shut down faster than Rosie O'Donnel can hit a shrimp buffet.

There is absolutely no doubt there is a litmus test for "terminating" Roe v Wade for all Bush nominees and both of his stooges will carry out their orders as soon a the opportunity avails itself.

bountyhunter
October 18, 2005, 03:08 PM
The best thing the President could do is nominate someone who would abide by the Constitution in spite of being an evangelical identified with a religious agenda. Why is it inconceivable that the law and dedication to duty would have greater influence than the pronouncements of some charismatic preacher? I must conclude you have not listened to any of Bush's speeches regarding how God is commanding him to act..... and being Catholic doesn't influence Scalia or Thomas and being a right-to-lifer advocate won't influence Miers (re her attempt to force the ABA to rescind it's public stance in favor of the current law of Roe v wade..... how silly for a legal group to advocate following the law....).

Yeah, sure.... they will leave their religion at the door and blindly decide cases.

And Dumbo can flap his ears and fly.

pax
October 18, 2005, 04:59 PM
bountyhunter ~

Your thread was closed because it was a blatant attempt to start a religious war on THR. We don't do that, here.

This thread has stayed open because although related to religion, it does not center entirely upon religion. It is an important topic which needs to be discussed intelligently and so far that has happened. So far everyone involved has avoided turning it into a religious war (thanks guys!).

The very instant that anyone gives into the temptation to bash Catholics, Evangelicals, atheists, or worshippers of Ctullu on this thread, it'll be closed.

pax

bountyhunter
October 18, 2005, 07:31 PM
Post removed by moderator.

Reason: back-talk after a warning post by another moderator.

:fire:

Glock Glockler
October 18, 2005, 08:21 PM
I'd love to see a Constitutional requirement or Supreme Court nomination.

Al Norris
October 19, 2005, 02:14 AM
I'd love to see a Constitutional requirement or Supreme Court nomination.
Got one you'ld like to propose?

Personally, I'd like to see attorneys barred from being Judges, period!

bountyhunter
October 19, 2005, 03:00 AM
Got one you'ld like to propose?

Personally, I'd like to see attorneys barred from being Judges, period! The legal system would grind to a halt..... ask any practicing attorney this question:

"What do call an attorney with brain damage?"

And they will reply instantly:

"Your Honor."

RealGun
October 19, 2005, 08:40 AM
The Supreme Court should not be completely untouchable. Pressure can be brought to bear if the Senate Judiciary Committee would routinely call Justices felt to be errant before a hearing. That's not what happens because the whole legal profession is trying to maintain collective decorum. To protect credibility of and respect for the Courts, they sacrifice credibility of and respect for the Courts. Everybody hates lawyers, especially judges appointed to life tenure. If the rule of law means anything, the law and the process should be more respectable, not something only geniuses can figure out..

Al Norris
October 19, 2005, 09:49 AM
If the rule of law means anything, the law and the process should be more respectable, not something only geniuses can figure out..
Which is why I implied at the beginning that Miers is at least as qualified as any other sitting Justice.

You or I, should be able to sit on that court. The legal footwork is always done by law clerks anyway, with stipulations by the Justice which way to research the decision.

Having written that, Congress would be utterly appalled to have a "normal" citizen sit in judgment. A normal citizen would have too much common sense to let the Congress pass laws that contravene the plain meaning of the Constitution. That much I will give to honest everyday work-a-joes... But I digress.

The question to me is whether or not the Constitution allows for any kind of religious test for federal office. I say it is not allowed. I say that the means Bush is using is in fact a religious test.

Now it is up to the Senate in its capacity to "advise and consent" to disallow this nominee, on two counts. One is the religious test used. The other is cronyism, which was specifically addressed as the reason for this clause, by the founders themselves (Federalist 76).

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