Our Inconvenient Constitution

April 3, 2010

by Mario Rizzo 

The question of questions for the politician should ever be — “what type of social structure am I tending to produce?” But this is a question he never entertains. (Herbert Spencer, “The Coming Slavery.”)

It is hard for an abstraction to win against a poor mother with a kid who is uninsured. But this kind of phenomenon has been the story for a long time.  

Human beings are prone to ignore the long-run, hard to measure, and more abstract consequences of their actions, especially in the public sphere. Each decision is taken is response to some concrete problem or need. “It is all about people; it is all about jobs; it is all about health,” we are told. Sometimes it is about the goals of special, concentrated interests. Other times people think of themselves as voting for the concrete interests of worthy individuals or groups.

Of course, there is usually a net social loss of wealth or efficiency. But that is not the main loss. The real loss is the weakening of the institutional and legal framework that can protect us from a serious diminution of liberty.  

Consider the insurance mandate in the healthcare bill that was just passed. Much of this law – like the “free-of-charge” elimination of pre-existing conditions exclusions – will not work without forcing healthy, usually young people, to buy insurance. If they were not forced, they would likely wait until they became ill before they bought health insurance. As a result, insurance companies would turn into the losing providers of healthcare to these people. Of course, premiums would have to be raised. But then more people would drop out of the insurance pool until they were sick. The system would collapse.  

So we must be practical and mandate insurance coverage for all to make this particular scheme work.  

But is this constitutional? Jonathan Turley has written a very interesting opinion article in USA Today on this issue arguing that it is not (or at least should not be).   

It may seem like a very arcane, legalistic and abstract issue to raise against the concrete benefits of Obamacare. After all, there are sick people out there.  

However, Congress has the right to regulate only interstate commerce. The rest – commerce within a state – is left to the several states. Thus this is an issue of federalism. The recent history of the limits on the federal government in this area has not been good. Almost everything is now considered “interstate commerce” by the courts. So the effective limits to the expansion of federal authority have shrunk simply by judicial fiat. The literal structure of our government has not been changed. (It is apparently too much trouble to do that!)  

For the mandate to be constitutional, a person’s refusal to buy health insurance must be considered interstate commerce. In other words, the refusal to engage in commerce must be considered commerce. (We can make this sound nicer by rephrasing it – the refusal to engage in commerce affects interstate commerce, say, health insurance rates across state lines.)  

If this simple act of omission is “interstate commerce” within the meaning of the Constitution, what is not interstate commerce?  

I realize that much constitutional law has been like this for quite some time. But this is part of my point. Even judges whose job it is to keep an eye on the long-term, institutional, and abstract consequences of policy do not. They are frequently in the same swamp as the politicians and voters.  

Little by little we have sacrificed our constitutional protections because of promised concrete gains at the cost of very little (or so it seemed) transformation of our political order. Yet the unexpected result of all of these individual tradeoffs has been a major transformation.  

The admittedly-imperfect federal system was designed to protect us from a large, overweening federal government. It was designed to allow for checks on centralized power, for experimentation on a state-by-state basis, and for voting with one’s feet if a state proves to be oppressive.  

A decision by courts or the Supreme Court to extend the meaning of “interstate commerce” allowing the mandated purchase of insurance would further weaken the federal system, regardless of whatever clever turn of phrase lawyers or judges can invent. The facts on the ground are what they are.  

The siren call of the immediate, concrete, and particular benefits to particular people is very strong. That is why wise men tried to tie us to the mast of the Constitution.  

We need a new commitment to the legal order that made us free.  

Addendum: There is a technical psychological literature that deals with the claims of the concrete versus those of the general and abstract. For some discussion in the context of law and ethics, see my article here.

34 Responses to “Our Inconvenient Constitution”

  1. Richard Ebeling Says:

    Just a reminder of Hayek’s words in Volume I of “Law, Legislation, and Liberty”:

    “The direct effects of any interference with the market order will be near and clearly visible in most cases, while the more indirect and remote effects will be unknown and will therefore be disregarded. We will never be aware of all the costs of achieving particular results by such interference.

    “And so, when we decide each issue solely on what appear to be its individual merits, we always over-estimate the advantages of central control. . .

    “If the choice between freedom and coercion is thus tested as a matter of expediency freedom is bound to be sacrificed in almost every instance . . . to make the decision in each instance depend only on the foreseeable particular results must lead to the progressive destruction of freedom. . .

    “That freedom can only be preserved if it is treated as a supreme principle which must not be sacrificed for particular advantages was fully understood by the leading liberal thinkers of the nineteenth century, one of whom even described liberalism as ‘the system of principles’ [Benjamin Constant].”

    Richard Ebeling


  2. Neither the President nor Congress feel any obligation to uphold the Consttituion. That is the Supreme Court’s problem. (And now we are governed by a President who attacks the Court if it does its job.)

    It was not always thus. Members of each branch have a duty to preserve, protect and defend the Constitution. Grover Cleveland reognized this, and his veto of the Texas Seed Bill is a highwater mark in U.S. history. It is worth reading: http://mises.org/daily/3627.

  3. Mario Rizzo Says:

    Thanks to Richard and Jerry for two excellent references. Grover Cleveland was amazing.

  4. Richard Ebeling Says:

    If I may be permitted one more comment.

    Years ago, when I first met Ron Paul, I asked him if anything surprised him when he first arrived in the House of Representatives to serve as a Republican congressman from Texas.

    He thought a moment, and said, yes. There were two arguments, he said, that if you used them as part of an argument on the floor of the House would result in you be laughed at and not taken seriously.

    What were those two arguments that would get you laughed at and ridiculed, he went on? The legislation being proposed is immoral or its unconstitutional.

    Richard Ebeling

  5. Troy Camplin Says:

    When people bring up some particular counterexample, I always tell them, “The exception does not negate the rule.” I then proceed to tell them how liberty and free markets would in fact make that person’s life much better. Amazing where logical reasoning will get you.

  6. scineram Says:

    I agree not doing anything is not commerce. So this act is unconstitutional. But the interstate doctrine is just judicial fabrication.


  7. How do we instill in the people the taboo that using government (force, Washington reminds us) to achieve one’s ends is just wrong? “We can’t make the medical insurance system work without the preexisting-condition rule or individual mandate!” “Well,” the people have to learn to say, “we’ll just have to find another way.” (Of course, there are ways.)

    Didn’t we get an income tax and ICC under Cleveland? I sense some selectivity on his part here.

    I wish I had the same benign view of the Constitution as other have, but the framers who favored a strong central government built in enough ambiguity to give the statists a great deal to work with. The text of the commerce clause doesn’t really confine itself to interstate commerce; thank goodness for activist Jeffersonian judges. At any rate, this seems like a gross overreach by any standard. Forcing people to buy insurance in an intrastate market is construed as regulating interstate commerce. Does anyone really buy that?


  8. The Republicans employed the tariff both to support a system of protection for industry and to fund unblievable levels of domestic spending. Laissez-faire Democrats, like Cleveland, opposed both the protection and the spending.

    Reducing protection and reliance on the tariff meant finding a new revenue source. In retrospect, we can appreciate the horror of the income tax. But at the time the choice was between that and high tariff rates.

    The ICC involves too issues too numerous for a comment. Cleveland still must rank near the top for principled adherence to laissez-faire.

  9. Carson Says:

    We didn’t need much organization for the love-ins in the sixties when we would all meet in the local parks. We still managed to get the issues of the day discussed.

    I feel the reason behind most of our troubles and the need for TEA Parties is the government’s ability to print up whatever money it wants to get their way.

    Maybe this will help make the danger of fiat money clear.

    Imagine you and me are setting across from each other. We create enough money to represent all of the world’s wealth. Each one of us has one SUPER Dollar in front of him.

    You own half of everything and so do I.

    I’m the government though. I get bribed into creating a Central Bank.

    You’re not doing what I want you to be doing so I print up myself eight more SUPER Dollars to manipulate you with.

    All of a sudden your SUPER Dollar only represents one tenth of the wealth of the world!

    That isn’t the only thing though. You need to get busy and get to work because YOU’VE BEEN STIFFED with the bill for the money I PRINTED UP to get YOU TO DO what I WANTED.

    That to me represents what has been happening to the economy, and us, and why so many of our occupations just can’t keep up with the fake money presses.

    They have been beating us with our own stick!!!!1

  10. Thomas Says:

    The U.S. is in fact a nation, and the federal government exists to support the interests of the country’s citizens, regardless of the particular state, county or ward in which they reside. Americans are supposed to be protected by the federal government, such that residents of one state may enjoy the same national benefits as other states’ residents.

    Let the monied interests try to distract people, and let the leadership of the Republican party risk not only their own future, but the security of our nation by inciting such vile rhetoric – but make no mistake: Where the federal government is able to promote the general welfare of Americans, no individual state should have the right to prevent it.

    Just as the federal government is responsible for our national defense, it would be similarly insane to think any individual state would refuse this responsibility of the federal govenment – even when the infrastructure around our national defense does incur costs on the individual states, in much the same way that national healthcare would have fiscal impacts at the state level.

    Seems to me, if the Republican governors of these states are truly interested in serving their residents, they would first recognize the need for healthcare reform, and secondly work with the federal government to make sure the fiscal impacts are such that other state programs aren’t adversily impacted. To do anything else is nothing but pure power-hungry politics, which is trying to regain their control even at the expense, and resulting deaths of countless thousands of Americans.

    If these Republicans have a better idea, I’d like to hear it. If not, then stop trying to destroy our nation with all of these lies and marketing ploys.

  11. George J. Says:

    America Rising


  12. The Federal Government does have the right to impose an income tax. The Government has the right to spend money. This should have been enough to provide a health care scheme of unquestionable constitutionality. Why did Congress choose to pass a health care plan that did not take advantage of this?

  13. Tom Says:

    The was a well-poised, elegantly written article. I am a libertarian and my arguments, as well as those of my fellowmen, tend to be fiery to say the least. Sometimes it’s easy to get caught up in all the emotion and wonder if the points are just contrived, but then an article like this comes along. With its mild tone and a strict adherence to the facts, you are reassured by it of the validity of your concerns and encouraged to continue the fight. Even the most left positioned liberal should be able to see the rationale in these words. Well done!

  14. NM Says:

    It’s quite ironic that you title your post “Our inconvenient constitution” and conveniently leave out the key element from which the federal government derives its power: the “necessary and proper” clause (“[The Congress shall have Power] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers” including, of course, interstate commerce).

    “For the mandate to be constitutional, a person’s refusal to buy health insurance must be considered interstate commerce” is an incorrect framing. The federal government has the power to regulate interstate commerce independently of whether you specifically are participating in that commerce. (For instance USDA regulates meat production and packaging, but many people don’t buy meat.)

    The question is whether requiring a person to carry insurance is “necessary and proper” to regulate the commerce of health insurance across states.
    And you have already answered that question in the positive.

  15. scineram Says:

    What then isn’t necessary and proper to regulate some commerce?

  16. NM Says:

    @scineram: it’s not necessary for people to buy meat to regulate its commerce. It’s Mario Rizzo who said it’s necessary.

    Besides, the fact of the matter is the constitutional argument presented aboves is fundamentally flawed. It’s a dead end.

    Marginally, it seems that these day everyone has become a constitutional scholar (often ignoring 200 years of jurisprudence, or in alternative, decrying the unconstitutionality of this or that ruling). I am not one, but it’s clear that picking and choosing is not going to get you very far. Except with those that look for any sort of argument to support their political viewpoint.

  17. EB Says:

    Why wasn’t this article written when the Supreme Court ruled that the Interstate Commerce Clause justified the Federal government’s prohibition of medical marijuana overriding state medical marijuana laws?


  18. What is wonderful about the Constitution is that it is written in ordinary English and can be understood by ordinary people. The “necessary and proper clause” adds no substantive power, but enables Congress to enact legislation for the prior 17 enumerated powers.

    So it still gets back to Rizzo’s original question. Congress shall have Power “To Regulate commerce with foreign Nations, and among the several States, and with the Indian tribes.”

    What Mario does not bring out, in additional to all his excellent points, is that insurance has never been regulated as commerce. That is why the states have exclusively regulated it.

    There was a Constitutional case litigated on marijuana on just this issue — whether Congress can regulate commerce entirely within state (CA). Our friend Randy Barnett argued the case for the palintiff who wanted to be allowed the use of medical marijuana under CA law. Randy lost.

    But many articles were written on it at the time, arguing much as Mario has argued here. There is no picking and choosing going on.

  19. Ognywogny Says:

    This is America, land of the fittest. If people are too poor to buy insurance, they shouldn’t get health care. If the young want to gamble with their good health and are in an accident-if they don’t have insurance or money, the hospitals shouldn’t be required to treat them. And if they do on their own dime, they shouldn’t be able to pass on that cost to the rest of us. Are there any pieces of the ‘conservative’ view I missed

  20. Dr. Kelly Says:

    Mr Driscoll and others responding to this article seem to forget the basis of our country is stated in the Preamble of our Constitution: “…to promote the general welfare…”. This statement of purpose seems inherently applicable to our citizenry regarding its “health”.

    A few of the areas agreed (by our Courts, history and tradition) to be proper ‘federal subjects of legislation’ are: aviation, agriculture, railroads, banks, and education. Each of these has been specifically approved through the Commerce Clause of the Constitution.

    The Commerce Clause(CC) was expanded significantly in its original scope by the US Supreme Court on these disparate specific issues over many past cases of challenge to legislation. The current view of our law is that the CC is virtually unlimited in scope *unless* it conflicts with another ‘specific enumerated limitation’ of the Constitution. There being no limitation SPECIFICALLY, as in s-p-e-l-l-e-d out, to ‘states rights’, there would be no reasonable expectation that the Courts would fabricate one for the current law.
    Likewise, Congress has already acted in this area: regulation in Medicaid and Social Security, are the prime examples. Requiring citizens to purchase a commodity or product or face a fine has been done before: by the States. For these reasons there is an extremely slim possibility of ‘overturning’ health reform on Constitutional grounds.

    In fact, at very best, the theory of Constitutional conflict with a ‘State Right’ is twisted in its very reasoning. The state AGs are essentially arguing either: 1) the federal government is violating the Sovereign Rights of States to order their citizens to purchase insurance (a product), or: 2) the Federal Government is prohibited by a new theory of ‘states rights’ from legislating in the area of ‘commerce’ which really isn’t commerce at all.
    As we all know, every state currently mandates auto insurance, and such mandates have been upheld on Constitutional grounds; so the idea that State AGs are ‘opposed to compelling purchase of a product or service is moot’ or at least legalistically irrational. As for some new or presumptive ‘state right’ or federal protection against the ‘right to regulate the field of health insurance’, the proposal of this idea draws from the same demon which is commonly derided and decried by the ‘Right': “judicial activism”. These AGs want to confer some heretofore unknown and unspecified ‘rule’ or ‘right': a dangerous proposition if one is opposed to other things like “re-education camps”! Previously, derision and scorn was raised regarding a ‘right to abortion’ from the Constitutional Right to ‘freedom of privacy’. The “Right wing” continues to use that assertion of ‘judicial activism’ as a lightning rod to block judicial appointments. Now it would embrace the same concept it rails against to prevent legislation targeting systemic abuses of people’s rights to enforce contracts, challenge injustice in courts, and protect their possessions, among other things.

    Not surprisingly, the AGs who want to challenge ‘health reform’ are making their claim under the same apparent title as the “Tea Party” movement: ‘opposition to over-reaching government’ and ‘infringement on individual rights’. If it sounds like it’s all political: well, it is. The conservative movement is conning a large majority of the American people with propaganda.

    Ironically, the people challenging the ‘health-care reform’ are not only at odds with their own dogma regarding constructive judicialism and ‘activism’, they run smack into the wall of Truth about what that legislation IS, and how their constituents will benefit. In asking the Courts to interpret the meaning of ‘Commerce’ not by the prevailing Standard, not by judicial Precedent, and not by the letter of the Constitution, but by a narrow theory/ interpretation as to the ‘role of government’, they are asking the Courts to look at a ‘political question’. Political questions are NOT accepted by the high court. But conservatives now will submit them. If this is not subversion of our government toward a ‘New Order’, then perhaps the Constitution requires more study by Tea Baggers

    For all these reasons, looking at the Preamble (meaning or purpose) of the Constitution, and keeping in mind the consistency of past rulings (precedent and case law reasoning) leads to the conclusion that governance in the area of health-care IS consistent with our Supreme Law, commerce and exclusively the right of the Congress. Having previously granted insurers anti-trust exemptions, the legislation package on the whole is already an area of Congressional action, therefore ‘right’.

    In the opinion of more than one legal observer, the ultimate issue will come down to the interpretation that the government has the power and ability to levy taxes. Having already acted to provide deductions in tax codes for ‘health expenses’, the government may also necessarily regulate taxes for non-compliance with codification of this health related tax law.

    It is curious that while ‘tea baggers’ are currently portrayed as enraged over government intrusion and over-stepping on individual Rights, they were almost entirely silent regarding the BIG ONES recently passed by our Congress while dominated by the Republican Party: the Iraq War Authorization (violating the War Powers Act and International Law), Patriot Act (setting aside the Bill of Rights and FISA entirely), Enemy-combatants (gutting the Geneva Convention and our 4th Amendment completely), Rendition (Violating International Law, Constitutional Law and all basic Human Rights upon which we base our country), and Heightened Interrogation techniques (Overturning not just the Constitution but human decency to approve barbaric tortures) ALL of which were ram-rodded through Congress by the same people who ‘oppose’ health reforms which “violate individual rights”.

    We are at very odd times, indeed.

  21. Will Warner Says:

    The libertarians and Republicans are absolutely right that this is a hugely expensive and entirely unconstitutional federal program that has nothing to do with interstate commerce, but that ship already sailed over 80 years ago when FDR created Social Security, over the screaming protests of Republicans, libertarians, and anyone who cared about the Constitution. Restoring any sort of consistency to the US government will require either killing Social Security, Medicare, and numerous other greatly beneficial federal programs that have nothing to do with interstate commerce, or an amendment expanding the powers of the federal government, and I’d rather we pass the amendment.


  22. It should be clear to lawyers and scholars both that Congress has the power to tax. To put it another way it is the power to cause citizens to spend money on public purposes.

    Does anyone doubt that Congress could pass a 1% excise tax on all goods and services sold in the United States and segregate that money to pay for a single payer plan like Medicare For All?

    Let’s try to remember there’s a big difference between law professors who go out of their way to get interviewed on television and the law as practiced in the trenches.


  23. Alas, we’ve overlooked something unfortunate here. The Supreme Court has already said the government may use the power tax in a purely regulatory manner if it wishes. U.S. v. Sanchez (1950), http://tinyurl.com/y944gxl

    “It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed…. The principle applies even though the revenue obtained is obviously negligible … or the revenue purpose of the tax may be secondary…. Nor does a tax statute necessarily fall because it touches on activities which Congress might not otherwise regulate.” (Imagine that?)

    It gets worse. Quoting Magnano Co. v. Hamilton (1934):

    “It is beyond serious question that a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed…. The principle applies even though the revenue obtained is obviously negligible … or the revenue purpose of the tax may be secondary…. Nor does a tax statute necessarily fall because it touches on activities which Congress might not otherwise regulate.”

  24. Mario Rizzo Says:

    Whoa!

    A few clarifications. The purpose of my original post was partly to link to an idea that has had some currency among constitutional scholars. I am not a constitutional lawyer so I do not know if the Supreme Court would accept this argument. Or whether there are other grants of power under the Constitution that would enable the Federal government to mandate health insurance coverage.

    But the more important general point remains. In exchange for promised concrete benefits voters, politicians and judges have weakened a formal legal structure that constrains government power. They have done this little by little — largely oblivious to the tradeoff and its consequences.


  25. Early in Mario’s post, he oberves that individuals tend to ignore the hard-to-measure, long-run consequences of their actions — especially in the public sphere. Constitutional scholar Glenn Harlan Reynolds writes about that issue today. He employees Hayekian reasoning.

    http://www.washingtonexaminer.com/opinion/columns/Sunday_Reflections/Progressives-can_t-get-past-the-Knowledge-Problem-89780997.html


  26. HT: David Boaz on the Reynolds op ed.

  27. Tom Says:

    @Thomas — Your argument is fallacy, every premise is based on the invalid conclusion that the Federal Government is there to support the interests of the citizens.

    Indeed, the Federal Government is tasked with promoting the general welfare of the United States, but it is clear through Section 8 as well as the Amendments of the Constitution that the term “general welfare” is intended only to describe the state of the union and not to serve as a handout to those less-fortunate among us.

    It is the role of the U.S. Government to ensure that no individual’s rights are infringed upon, and it is these rights that allow us to pursue a happy, healthy, and prosperous life. This idea does not, however, work in the converse. It is not the duty of our government, or it’s populous, to provide each citizen equally with the same happy, healthy, and prosperous life. That would be Communism, or at best Socialism.

  28. liberal_pinko Says:

    Grover Cleveland was an elitist who was all for business and against the working man. Research his roll in the Chicago Railroad and Pullman strikes if you wish enlightenment.

  29. rubehammer Says:

    seems pretty simple to me. the government should provide everyone with healthcare (that’s right, single-payer). those who aren’t happy with it can opt out, and maybe get a tax rebate in the process. A subset of those opting out might then choose to purchase private insurance on the open (“free”) market. everyone wins, everyone’s happy.

  30. James Says:

    A good argument, but you might be making an assumption that is false.

    You assume the tax is imposed under the authority to regulate interstate commerce. Taxation isn’t necessarily a form of regulation, and the federal government’s authority to tax is not limited within the Constitution (unfortunately).

  31. Mario Rizzo Says:

    It is not a tax. It is a fine for not doing something — not buying insurance. So the argument is whether the Federal government has the right to regulate the (non) activity. If not, then they cannot impose a fine.

  32. eds3 Says:

    There’s something I don’t understand here. I believe Mr. Rizzo would not dispute that it would be perfectly constitutional for the federal Congress to ban private ownership of automobiles. Automobile travel has well documented environmental problems. It requires tremendous outlay at all levels of government to provide infrastructure and safety. Thousands die every year as a result of automobile travel. There is no equivalent to the 2nd Amendment that protects private automobile ownership.
    The fact remains, however, that such a ban, however well-intentioned, would be a hideous abridgment of personal liberty (and counterproductive)- yet there’s nothing in the Constitution to prevent the Congress from passing such a law.
    Except, of course, for the parts of Article One which specify that the membership of the Congress shall be chosen by elections periodically.
    Why should it be naive to rely on voters to undo the health insurance individual mandate, or indeed health care reform as a whole, if it should prove too onerous? Elections are, and should be, at least as important a protection to the system as interpretation of the Constitution.

  33. Arabella Says:

    This is taken from the website of the Constitution Accountability Center – its Gen Counsel has prepared a 7-page issue brief which, in precise & straightforward manner, defines the AG lawsuits as unconstitutional “political theater” and explains precise law which supports the constitutionality of the President’s bill.
    http://www.theusconstitution.org/page_module.php?id=123&mid=2

    “The recent enactment of health care reform legislation has generated substantial debate. Some of the loudest voices have been state politicians critical of the Patient Protection and Affordable Health Care Act, who claim that the Act violates our Constitution and principles of federalism. However, the words of the Constitution and the text of the Act itself tell a different story: the Act actually preserves the vibrant federal-state partnership that is the hallmark of our federalist system and falls well within Congress’s constitutional powers.

    “To help set the record straight, CAC has prepared an issue brief entitled “The States, Health Care Reform, and the Constitution.” This issue brief demonstrates that Congress clearly had the authority to pass health care reform–including the individual mandate–and that the legal challenges to the Act filed by a handful of State Attorneys General are more political theater than genuine constitutional argument. The issue brief also explains why state efforts to block implementation of the Act outright–known as state “nullification” of federal law–are an attack on the Constitution and purely symbolic at best. Finally, the issue brief highlights aspects of the Act that preserve the role of the States as “laboratories of democracy,” allowing the States considerable flexibility to shape insurance exchanges or even opt out of the Act–including opting out of the individual mandate–so long as they create an alternative system that meets certain coverage and cost containment requirements.

    As a former professor of US Constitution Law, and very intelligent man, do you really think he’d be so daft as to issue a bill which violates the very Constitution he’s studied & taught throughout his professional life? GOP’s daily screaching & bosom-beating is getting a little tiresome. I hope they grow up soon.

  34. Mario Rizzo Says:

    “As a former professor of US Constitution Law, and very intelligent man, do you really think he’d be so daft as to issue a bill which violates the very Constitution he’s studied & taught throughout his professional life?”

    He doesn’t care.


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