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Nullification: The Lost Balance of Power

This is a discussion on Nullification: The Lost Balance of Power within the Politics forums, part of the US Discussion category; Quote: Originally Posted by jillian That is incorrect. In fact, there's not a single thing about that which is correct. The constitution contains the supremacy ...


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Old 07-19-2011, 06:48 AM
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Quote: Originally Posted by jillian View Post
That is incorrect. In fact, there's not a single thing about that which is correct. The constitution contains the supremacy clause. Had the founers wanted states to be individually empowered to the extent that they could nullify a federal law, they would not have included that clause. In fact, the entire intent of moving us from the Articles of Confederation to the Constitution was to dis-empower the states vis a vis the federal government.
The supremacy clause is moot on the subject of how we determine whether a law is Constitutional. Laws that aren't constitutional are obviously null and void. Nothing in the Constitution says the Supreme Court was to be the sole arbiter of which laws complied with the Constitution. There is also nothing in the Constitution that prevents a state from seceding. Even the servile followers of the Lincoln cult admit that.
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Old 07-19-2011, 07:09 AM
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Quote: Originally Posted by bripat9643 View Post
Quote: Originally Posted by NYcarbineer View Post
There was and is no 'right' to secede explicitly or implicitly in the Constitution.
Actually, there is:

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.
Let's start with something simple. The Constitution delegates to the Federal Government the power to make treaties.

All states are obliged to comply with those treaties. Therefore a state CANNOT secede and thus ignore its obligation to that compliance.

The Constitution empowers the Federal Government to tax. The states are thus obligated to pay those taxes. A state, or its citizens, cannot simply stop paying taxes.

The Supremacy Clause of the Constitution explicitly prevents the States from making laws that conflict with federal law or the Constitution. There is no 10th amendment workaround of the Supremacy Clause.

Since no state could secede without violating the Supremacy Clause, no state can legally/constitutionally secede.
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Old 07-19-2011, 07:12 AM
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Quote: Originally Posted by bripat9643 View Post
Quote: Originally Posted by jillian View Post
That is incorrect. In fact, there's not a single thing about that which is correct. The constitution contains the supremacy clause. Had the founers wanted states to be individually empowered to the extent that they could nullify a federal law, they would not have included that clause. In fact, the entire intent of moving us from the Articles of Confederation to the Constitution was to dis-empower the states vis a vis the federal government.
The supremacy clause is moot on the subject of how we determine whether a law is Constitutional. Laws that aren't constitutional are obviously null and void. Nothing in the Constitution says the Supreme Court was to be the sole arbiter of which laws complied with the Constitution. There is also nothing in the Constitution that prevents a state from seceding. Even the servile followers of the Lincoln cult admit that.
What's the point of the Constitution if nothing in it is binding or enforceable?
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Old 07-19-2011, 07:31 AM
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Why should states be forced to enforce laws that their elected representatives see as unconstitutional? Considering that state legislatures are more representative of the people than Congress (more members per capita) it makes sense to allow them to determine if an agreement with the states, the people, and the federal government has been broken.
Because it's the law of the land. Why should local police be forced to enforce state laws? The final arbiter of what of the Constitution and the laws made in pursuance thereof is the Supreme Court of the United States. The final arbiter of state Constitutional law is the State supreme court. The final arbiter of county or local statutes is the local government.

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If the federal government has a monopoly on determining what is constitutional, it should be painfully clear that their power will only expand beyond the limits imposed on it. If nullification were accepted, fugitive slave laws, which were unconstitutional, could have been repealed in northern states.
In what way were fugitive slave laws unconstitutional? Sandford v. Scott clearly established slaves as property, and the states had no right to deny individuals in other states access to their property.

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It was the Nazis who wanted to end states rights, and centralized power is behind nearly all the atrocities in history.
Oh bejeebers...just shut up. That's as obscene as it is offensive. People who believe in a strong federal government don't by default believe in gassing the jews. If you don't see the difference between the democratically elected representative government in the United States, with its 200 year history, and Nazi Germany then there's really no point in having a discussion. Let's play out that game a bit further, shall we, with a domestic example: You know who liked states rights? People who wanted to keep black people in cages and steal their children.
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Old 07-19-2011, 07:36 AM
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Quote: Originally Posted by bripat9643 View Post
Quote: Originally Posted by jillian View Post
That is incorrect. In fact, there's not a single thing about that which is correct. The constitution contains the supremacy clause. Had the founers wanted states to be individually empowered to the extent that they could nullify a federal law, they would not have included that clause. In fact, the entire intent of moving us from the Articles of Confederation to the Constitution was to dis-empower the states vis a vis the federal government.
The supremacy clause is moot on the subject of how we determine whether a law is Constitutional. Laws that aren't constitutional are obviously null and void. Nothing in the Constitution says the Supreme Court was to be the sole arbiter of which laws complied with the Constitution.
ORLY? "The judicial Power of the United States, shall be vested in one supreme Court,"

The concept of judicial review precedes Marbury.
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4. The 1983 bombing of the Marine Barracks in Beirut was not terrorism. (Kaz)

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Old 07-19-2011, 07:39 AM
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So, here's a question for the pro-nullification posters here (that I have little optimism for getting answered directly)

Could a state decide that the 2nd Amendment shouldn't apply to its citizens, and thus proceed to pass whatever gun laws it chose,

including, for example, a comprehensive ban on individual ownership of personal firearms?
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Old 07-19-2011, 02:22 PM
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Quote: Originally Posted by jillian View Post
Quote: Originally Posted by ShackledNation View Post
Many Americans do not like the idea of nullification. I find this unfortunate. The writers of the Constitution understood the threat of having a government. This is why they separated powers among three branches. The hope was that if one branch tried to gain too much power, the other would bring it in line.

But the founders were not stupid. They feared what would happen if all three branches sided together to expand their authority (fears that have been realized). And so a federal system was desired, in which multiple governments (states) could check the central three branches even further. The primary tool of the states to check federal authority was nullification.

If a state felt a law broke the Constitution it had entered into, it could claim that law null and void. This power was vital in defense of 3 branches uniting together to expand their power. I would argue it is the most important power of the states. Yet it has been lost.

And we wonder why the government has only continually grown in the economic sphere with bailouts and welfarism, grown in the foreign sphere with nearly 1,000 military bases around the world and constant warfare and nation building, and the personal sphere by banning drugs, passing laws such as the Patriot Act, allowing the TSA to grope passengers, and countless other examples.

If only we had the power to nullify it all.
That is incorrect. In fact, there's not a single thing about that which is correct. The constitution contains the supremacy clause. Had the founers wanted states to be individually empowered to the extent that they could nullify a federal law, they would not have included that clause. In fact, the entire intent of moving us from the Articles of Confederation to the Constitution was to dis-empower the states vis a vis the federal government.
I was waiting for the supremacy clause argument.

The supremacy clause found in Article VI reads: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution of Laws of any State to the Contrary notwithstanding."

But a nullifying state does not deny that the supremacy clause. In fact, it defends it. States are disputing whether the law in question is "pursuant to the Constitution" as the clause states in the first place. If an unconstitutional law is passed, the states have the duty to nullify it because it is not "made in Pursuance" of the constitution.
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Old 07-19-2011, 02:39 PM
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Quote: Originally Posted by 8537 View Post
Quote:
Why should states be forced to enforce laws that their elected representatives see as unconstitutional? Considering that state legislatures are more representative of the people than Congress (more members per capita) it makes sense to allow them to determine if an agreement with the states, the people, and the federal government has been broken.
Because it's the law of the land. Why should local police be forced to enforce state laws? The final arbiter of what of the Constitution and the laws made in pursuance thereof is the Supreme Court of the United States. The final arbiter of state Constitutional law is the State supreme court. The final arbiter of county or local statutes is the local government.
It is only the law of the land if it is made in pursuance of the Constitution. If the federal government is attempting to use a power that should be delegated to the states, the state has the duty to follow the constitution and nullify the law for the sake of protecting its citizens. What kind of system would limit a central government and then give the central government the sole authority of interpreting those limits? It is laughable.

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In what way were fugitive slave laws unconstitutional? Sandford v. Scott clearly established slaves as property, and the states had no right to deny individuals in other states access to their property.
Sandford v. Scott was unconstitutional. You seem to be assuming the Supreme Court is infallible and always follows the Constitution. That is incorrect. That is the entire point of nullification, to check the Supreme Court. If all 3 federal branches break the Constitution (which they frequently do) the states who entered into the agreement in the first place have the right to check the power and stop unjust expansion through nullification. Slaves were not property, and the north argued that they were denied due process of law and equal protection. Furthermore, the slaves were denied jury trial, clearly in violation of the constitution. The commisioners also received a ten dollar payment if they returned the accused to slavery, but only 5 if they set the slave free. Such an arrangement rendered the whole act unconstitutional regardless of the view of slaves as property. It violated the due process clause of the 5th amendment. So yes, the laws were unconstitutional, and the south tried to block nullification through the federal government to keep blacks enslaved.

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Oh bejeebers...just shut up. That's as obscene as it is offensive. People who believe in a strong federal government don't by default believe in gassing the jews.
I never said they did, so of course your strawman sounds ridiculous. I was simply pointing out that a strong central government is key to consolidating power and violating the rights of the citizen population. Hitler disliked the federal system because he felt they blocked his access to central authority.

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If you don't see the difference between the democratically elected representative government in the United States, with its 200 year history, and Nazi Germany then there's really no point in having a discussion. Let's play out that game a bit further, shall we, with a domestic example: You know who liked states rights? People who wanted to keep black people in cages and steal their children.
Strawman through and through. And you are incorrect about your insinuation that it was the southern states in favor of nullification. In fact, it was the north. It was the southern states and the federal government that ruled nullification of the Fugitive slave act to be inappropriate. The southern states were upset with the nullification of the north. In fact, nullification was a stronger tradition in the north than in the south, and there were far more instances of it in the north.
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Old 07-19-2011, 02:48 PM
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Quote: Originally Posted by NYcarbineer View Post
So, here's a question for the pro-nullification posters here (that I have little optimism for getting answered directly)

Could a state decide that the 2nd Amendment shouldn't apply to its citizens, and thus proceed to pass whatever gun laws it chose,

including, for example, a comprehensive ban on individual ownership of personal firearms?
Could they? Of course, and so could the federal government. Could the supreme court decide that the 2nd amendment shouldn't apply? Yes, it could. Neither the states or the federal government are infallible and both have the potential to violate the Constitution. But the states have much less incentive to do so because the legislature of a state more closely represents the people, and people can more easily move from state to state than from country to country. If the 2nd amendment were declared null in single state, the population of the state would likely decrease, depriving the state of revenue and creating a huge financial incentive not to ban the 2nd amendment (which is completely out of line with the principle of nullification anyway). If the federal government does the same thing, people can only move to other countries, which is highly unlikely. They don't have to worry about losing a tax base as the states do.

If the states can make the argument through nullification, so can the Supreme Court. But if the supreme court makes this argument, the states can nullify it, adding further protection against central government attempts to violate liberty.

Do you think it is more likely that all 50 states nullify a constitutional provision or that the Supreme Court allows for a violation of a constitutional provision? I think you need only look at history for the answer to that.
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Old 07-19-2011, 10:14 PM
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I'm happy to see ShackledNation has exposed his agenda - claiming that the south didn't favor nullification and (rather obviously) Calhoun's comments on the Nullification controversy....

And then his explanation of why a STATE could over-rule a 2nd amendment claim...

Precious.
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Old 07-19-2011, 10:22 PM
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It would be cool to live in a state that does not recognize corporations as having the same rights as individuals.
Don't you think so?
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Old 07-19-2011, 10:29 PM
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Quote: Originally Posted by 8537 View Post
I'm happy to see ShackledNation has exposed his agenda - claiming that the south didn't favor nullification and (rather obviously) Calhoun's comments on the Nullification controversy....

And then his explanation of why a STATE could over-rule a 2nd amendment claim...

Precious.
Complete and utter dishonest mischaracterization of my post. I clearly said a state could not over-rule the 2nd amendment legally, but that states, like the federal government, potentially could unconstitutionally do so. The federal government constantly breaks the constitution unlawfully. The argument was that the states would be less likely to do so, which you totally ignored. Do you think government is infallible? I hope not. All arguments against nullification result in such pathetic and laughable behavior as you have displayed. You shut out debate because you don't want to face reality.

Not to mention your use of the strawman fallacy. I said nullification was a tradition of the north more than the south, not that the south did not have a single supporter of nullification. Demagoguery at its worst.
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Old 07-19-2011, 11:08 PM
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If only we had the power to nullify it all.
The States never had such authority, nor will or should they ever.

In Cooper v. Aaron (1958), the Court ruled that ‘nullification’ is un-Constitutional:

Quote:
No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a [358 U.S. 1, 19] power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . ." Sterling v. Constantin, 287 U.S. 378, 397 -398.

FindLaw | Cases and Codes
See also McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824)

The courts never authorized ‘nullification,’ the Supremacy Clause has always been interpreted as just that: Federal laws and decisions made by the Supreme Court are the laws of the land, states were never authorized to ignore or reject Federal law or rulings by the Court.

The issue of ‘nullification’ is therefore moot.

Quote:
The supremacy clause is moot on the subject of how we determine whether a law is Constitutional. Laws that aren't constitutional are obviously null and void. Nothing in the Constitution says the Supreme Court was to be the sole arbiter of which laws complied with the Constitution. There is also nothing in the Constitution that prevents a state from seceding. Even the servile followers of the Lincoln cult admit that.
Quote:
I was waiting for the supremacy clause argument.

The supremacy clause found in Article VI reads: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution of Laws of any State to the Contrary notwithstanding."

But a nullifying state does not deny that the supremacy clause. In fact, it defends it. States are disputing whether the law in question is "pursuant to the Constitution" as the clause states in the first place. If an unconstitutional law is passed, the states have the duty to nullify it because it is not "made in Pursuance" of the constitution.
See above, you both clearly have no idea what you’re talking about.

You need to realize that whatever ‘understanding’ you might have of the Constitution or intent of the Framers, it is in essence a fantasy – something you’ve made up, a contrivance. Without case law in support of your positions, your arguments have no merit.
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Old 07-20-2011, 02:26 AM
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Quote: Originally Posted by C_Clayton_Jones View Post
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If only we had the power to nullify it all.
The States never had such authority, nor will or should they ever.

In Cooper v. Aaron (1958), the Court ruled that ‘nullification’ is un-Constitutional:
The states do have such authority, and should. The fact that the courts ruled nullification unconstitutional is moot. The courts also ruled at one time that a black man was property. Many rulings have been overturned, including those. The internment of the Japanese, also a ruling, has not been overturned. Do you think it should be legal for the federal government to invade the people of a state, judge a certain group as a threat, and put them in compounds? The courts allow it. Korematsu v. United States has never been overturned, so if you feel so strongly about the courts your answer must be yes. Point is, the courts are not infallible. Nullification is something the courts have ruled wrongly on that has never been corrected, just as Japanese Internment was never corrected. According to the Supreme Court, exclusion orders are constitutional.

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No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a [358 U.S. 1, 19] power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, "it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . ." Sterling v. Constantin, 287 U.S. 378, 397 -398.

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Marshall was wrong. The federal government has equal power to destroy the rights of the states granted by the Constitution. History has proven that. Unless you believe for some reason the federal government is less likely to break the Constitution, that entire argument is completely out of line with the reality of a federal system. The entire federal system breaks down without the ability of the states to check the central power. If there is a dispute between the states and the federal government, and the federal government has the sole authority to settle such disputes, who do you think will win? The decks are stacked.

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The courts never authorized ‘nullification,’ the Supremacy Clause has always been interpreted as just that: Federal laws and decisions made by the Supreme Court are the laws of the land, states were never authorized to ignore or reject Federal law or rulings by the Court.

The issue of ‘nullification’ is therefore moot.
Dead wrong. Jefferson was a strong supporter of nullification. Considering he participated in writing the Constitution, I think he knew what the supremacy clause meant.

Thomas Jefferson wrote in 1799, “lest [our] silence be construed into an acquiescence…the states…being sovereign and independent, have the unquestionable right to judge of [the federal government’s] infraction; and “That a nullification, by those sovereignties [states] of all unauthorized acts done under color of that instrument [the Constituion] is the rightful remedy.
What Would Jefferson Do? Nullify Now! – Tenth Amendment Center

Jefferson’s theory of nullification, outlined in his 1798 Kentucky Resolutions, is fairly simple: the US Constitution was a compact among the states where certain, limited powers were delegated to the federal government; any powers assumed by the federal government that were not expressly delegated to it, automatically become void–the federal courts be damned.

The argument that federal courts would never uphold nullification of federal law was Jefferson's point exactly.Thomas Jefferson emphasized repeatedly that the federal courts are a branch of the federal government, so if you have a dispute between the states and the federal government, and then let only the federal government decide it…it is an absurd notion. His argument was that the states are the constituent parts of the union, so therefore they have to make their interpretation of the constitution count for something.

Only federal laws made “in pursuance” of the Constitution may receive supremacy. The supremacy clause only holds in situations when federal law is constitutional. The 10th Amendment gives further credence to this distinction: “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.” Nullifying unconstitutional law was never prohibited.

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See above, you both clearly have no idea what you’re talking about.

You need to realize that whatever ‘understanding’ you might have of the Constitution or intent of the Framers, it is in essence a fantasy – something you’ve made up, a contrivance. Without case law in support of your positions, your arguments have no merit.
Jefferson is not a framer? His intent counts for nothing then? Have you heard of the anti-federalists? There is much more to this issue than you are making of it, and it is far from a moot debate. I am sorry, but the fantasy world is not my place of residence. Without nullification, the states have no way to check unconstitutional actions of the federal government. Without such a power, the states are meaningless tokens.

Let us look back to history around the time of the establishment of the United States. The 1798 Kentucky Resolution states “that the several states composing the United States of America are not united on the principle of unlimited submission to their general government . . . and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” The 1799 Virginia Resolution adds “that it views the powers of the federal government as resulting from the compact to which the states are parties . . . and that, in case of . . . dangerous exercise of other powers, not granted by the said compact, the states . . have the right . . . to interpose . . for maintaining . . . the authorities, rights and liberties, appertaining to them.” The federal government resulted from a compact of the member states. They lend the federal government its powers and are the ultimate judge of the use of those powers. To give the federal government universal authority to judge the legality of its own laws is illogical and dangerous.

Remember, people used to say "The United States of America are." The states are called states for a reason. They are not provinces, and they have legitimate power to check the federal government.
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Last edited by ShackledNation; 07-20-2011 at 02:33 AM.
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Old 07-20-2011, 05:15 AM
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Nullification is another approach that the haters of the United States of America love.

And make no mistake about it, many of the players here who claim to be YSA patriots would prefer to livebe living in the 19th century CSA.
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