Due Process of Law, #1: Can a Law be Unlawful?

Lawful vs Unlawful(graphic credit)

By Jeff Rutherford

I’m often tempted to try and devise a set of questions as a litmus test to reveal whether a person leans towards Conservatism or Progressivism.  Here’s a candidate question for such an ideological litmus test:

Can a law be unlawful?

To elaborate the question:  I’m talking about laws that are passed by a state or federal Legislature, following all procedural formalities, and signed by a Governor or President.  Can such a law be unlawful?

What is your first impression?  Is lawmaking just a procedural matter?  If the majority of duly elected legislators approves a bill, and the executive branch’s leader signs it, is it a fully legitimate law?

Let me caution you:  This question is not as superficial as you may think – nor should your answer be superficial.

Government Legitimacy

The philosophical premise of the ‘American Experiment’ is that we are a free people, not subjugated under an illegitimate ruler.

So what makes a government action or law ‘legitimate’?  This is a crucial idea, for if a law is not legitimate, then it is a ruler’s or ruling class’s mere will imposed on others – and they are consequently not a free people.  The idea of ruling legitimacy comes from the Magna Carta – “The Great Charter.”

King John signing Magna Carta - 1215

King John reluctantly signing the Magna Carta — 1215 AD

(graphic credit)

Initially called The Articles of the Barons, The Magna Carta was written by the Archbishop of Canterbury in 1215 in protest of King John’s despotism, agreed-to by a young King Henry III in 1217, and later integrated with English law in 1297.  Its purpose was to limit the mere will of the King of England, as the English barons’ condition for allowing a king to rule peacefully without revolt or assassination.  Its most monumental clause is the 39th, which said,

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we [meaning the king’s forces] proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”

The 1215 charter has been called “the greatest constitutional document of all times – the foundation of the freedom of the individual against the arbitrary authority of the despot.” Clause 39 remains part of British law today, and its lineage flowed down to America’s Bill of Rights, in the 5th Amendment to our Constitution:  “No person shall…be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”  As a legal philosophy, these British and eventual American restrictions pertain to ALL activities of government, not just the actions of law enforcement agencies.

Magna Carta photo

The Magna Carta – Latin for ‘The Great Charter’

(photo credit)

Due Process of Law

Suppose, following all prescribed legislative procedures, the federal government passes a law cancelling all installment debt.  Meaning all outstanding mortgage, credit card, car loan, and student loan debt.  The law simply declares all such debt is gone.  Phwit!  Instantly wiped off the books.  It’s easy to picture how the self-interests of the majority of citizens and even their elected representatives would personally gain.  But is majority rule all that matters?  Would this law be lawful?

Plainly not.  It would strip the lenders of their contractual rights and their property.  It would also destroy the future prosperity and economic progress of our society, as the financial tool called credit would disappear.  The mere will of the majority would have been momentarily served by this unjust act, but at a disastrous long-term price.

It’s intuitively clear that this extreme example is NOT what was meant by ‘Due Process of Law’ in free societies.  Simply following the procedural rules of lawmaking does not automatically make every resultant law legitimate.

So obviously there is a difference between the procedural steps of lawmaking and the reasoned legitimacy of lawmaking.  This is what the Magna Carta’s 39th clause meant by “the law of the land.”  The law of the land, or the rule of law, is not proclaimed simply in accordance to the whim of the rulers, democratically elected or not.  The rulemakers must have rules to follow also.  Not just procedural rules – but also ethical, moral, philosophical principles.

If a society is to be free from the whim of despotic rulers, the legitimacy of a government statute or other government action must depend on its adherence to some independent criteria, not just on the government’s overwhelming power to declare and enforce it.  A fully functional free society must recognize that not all of the government’s acts are lawful just because they are government acts.  It must establish criteria to tell lawful from unlawful government acts, and must establish processes of deliberating these distinctions, and correcting government transgressions.  As James Madison wrote in The Federalist Papers #51:

James Madison“It may be a reflection on human nature that such devices [as Constitutional chains] should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? … If angels were to govern men, neither external nor internal controls on government would be necessary.  [But lacking these angels,] in framing a government which is to be administered by men over men, the great difficulty lies in this:  You must first enable the government to control the governed; and in the next place oblige it to control itself.”

In the next article I will return to the question:  What makes a government action or law ‘legitimate’ ?   This question has become critically important in 21st century America.  Unfortunately, far too few Americans have knowledge of or respect for this fundamental inheritance from the ‘Great Charter’ of Western civilization back in 1215.


About Necessary and Proper

Jeff believes in the Individual's ability to excel when liberty and freedom of choice are protected. Also believes in the Community's ability to take care of the vast majority of its own issues and needs when the federal government leaves the Community's resources and sphere of control alone. State and local choice produce better results than centralized federal control. https://necessaryandpropergovt.wordpress.com/
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29 Responses to Due Process of Law, #1: Can a Law be Unlawful?

  1. Citizen Tom says:

    Reblogged this on Citizen Tom and commented:
    When you read this post, consider what kind of people it takes to distinguish between lawful and unlawful laws. Consider what kind of people it takes to force their leaders to abide by lawful laws.

    Ask yourself this question. Are we still that kind of people?

    Liked by 1 person

  2. phadde2 says:

    I’ve had this debate with several ‘intellectuals’ at the University. Generally, so far, most of the academics that I’ve come across operate under moral relativism.

    When I look at laws, I initially ask, does it violate Natural Law, Natural Rights, our inalienable rights? However, those rights become endangered under the guidance of moral relativism, those rights continue to be quantified. ‘Killing’ citizens and seizing their property become shades of gray, rather than black and white.

    In a pre-law class, I saw a professor once laugh at the notion of ‘natural law’. I was in disbelief.

    Liked by 1 person

    • Hi phadde2.
      The leftist mind is wired differently. Have you read Dr. Sowell’s book A Conflict of Visions?
      I hope you will stay with me as I do a series of articles on the philosophical importance of ‘Due Process of Law’.
      Thanks for the great comment.
      – Jeff


  3. I left the following comment at Citizen Tom’s blog before seeing your thrust here:

    I think that the semantics here are a bit tricky. “Unlawful” does not seem to be the right term. Bad, certainly, Potentially unconstitutional, all too often. Improper, wrong, inappropriate, all of those can describe many of the laws (and many of the 100 times as many regulations) we have on the books.

    But as laws, by definition they are “lawful.” In all those cases where they shouldn’t be — and all parts of the political spectrum will agree that some shouldn’t be, even if they don’t agree on which ones — the issue is how best to address the problem.

    That some laws are wrong seems almost trivial. That some regulations are wrong is also a dramatic effect upon our lives, but all would agree that some are wrong. (Thus, as a litmus test, this might not work … unless it is to explore the probably wrong use of the word “unlawful.”)

    The real question, I think, is: What do we do about it?

    I’m still of the same thinking, but I look forward to your expanding upon the subject.

    ===|==============/ Keith DeHavelle


    • Hi Keith. Thanks for showing interest. Regarding your concern about tricky semantics, I will throw in some additional illumination of what I’m up to:

      I specifically used the word “unlawful” — and avoided the word “illegal” — in order to stay away from the perception of tricky double-talk. The word lawful as I’m using it here means “consistent with Western civilization’s concept in ‘free societies’ of unalienable rights and consent of the governed, where The People are above the government in the hierarchy of sovereignty.”

      I gave a fair caution to be careful about taking my question as superficial, and to be careful about answering too superficially. I think you have initially gotten one foot stuck in the trap — though as an experienced online debater you were careful to keep one foot out. 🙂

      Here’s why I plead NOT guilty of semantic trickery:

      You said, “ ‘Unlawful’ does not seem to be the right term. Bad, certainly, Potentially unconstitutional, all too often.” I take it you are agreeing that bills passed by Congress are often unconstitutional. Ok, so we’re on common ground there. Now let me quote from Article VI of the Constitution, adding some bold emphasis:

      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, anything in the Constitution or laws of any State to the contrary notwithstanding.”

      Keith, if the Constitution is the Supreme Law of the Land, then why am I “probably wrong” in using the word unlawful to characterize an unconstitutional statute? Can’t the word “unconstitutional” be fairly defined as “something which is in violation of The Supreme Law of the Land, and consequently unlawful” ?

      To reiterate, I didn’t use the word “illegal” — I said “unlawful” because I’m going to talk about the deeper moral obligations that our Constitutionally-sworn public servants are often shirking. Where I’m going in upcoming articles, there are about 4 more layers below the superficial top layer of potential semantic trickery that made you suspicious. I do recognize, though, that you’ve left the door open to hearing me out. And I hope this reply has at least proven that I’m not engaged in a grand exhibit of fancy double-speak here. So please stick with me.

      – Jeff


      • @Necessary and Proper, who wrote:

        Keith, if the Constitution is the Supreme Law of the Land, then why am I “probably wrong” in using the word unlawful to characterize an unconstitutional statute? Can’t the word “unconstitutional” be fairly defined as “something which is violation of The Supreme Law of the Land” ?

        I don’t think we are far apart philosophically. I am thinking of this as a sort of distraction from the core issue (for both of us, I think) of getting rid of bad laws and preventing them from being enacted.

        If a bad law is part of “the body of laws” (and this is true, once enacted, until it is struck down), then you and I are very likely to agree that it should be held unconstitutional, but that hasn’t happened yet. We can decide that it is unconstitutional, and decide not to obey it (two different decisions), but this is tricky territory, it seems to me, as it is not easily distinguishable from what Obama himself does with laws that he doesn’t like (and often calls “unconstitutional” to defend his action or inaction).

        It is frustrating when a law, presenting a prima facie case of unconstitutionality, nevertheless gets a 5 to 4 decision in SCOTUS, and not always in our direction.

        I like Mark Levin’s idea (in The Liberty Amendments) of allowing two-thirds of states to override a SCOTUS decision or a Congressional law within two years.

        I am with you on the odious rise of moral relativism, and progressive notions in general. The education of young people to be better informed, better educated voters is excellent, but not (in my opinion) sufficient. Republicans delivered a resounding victory last November, which was immediately followed by the candidates they elected or re-elected reneging on the promises that got them their positions.

        With enough voter support, we would have more Ted Cruzes and fewer Mitch McConnells. But this doesn’t address the fact that most of these laws are created as bureaucratic regulations outside of the legislative branch. For that, we will need amendments, I think.

        The system is currently set up to incentivize bad behavior. It is at that level that we will need to operate in order to effect serious changes.

        As to this comment:

        and you’re not necessarily as interested in hearing the case for why it’s morally wrong for the government to pass bad, unconstitutional, improper, wrong, inappropriate, laws.

        It sounds sort of like a complaint, but in fact I am familiar with the case for this and have made it myself. I expect you will have your own insights, and I am interested, but there is no dispute between us as to the wrongness. Thus, it is fair to say that I am more focused on the solution … just not exclusively so.

        ===|==============/ Keith DeHavelle

        Liked by 1 person

        • Hi Keith. Good dialogue (here and at Citizen Tom’s). And thanks for following my blog.

          I have a couple responses. First, regarding these three sentences of yours:

          “I am thinking of this as a sort of distraction from the core issue…of getting rid of bad laws and preventing them from being enacted.”

          “The education of young people to be better informed, better educated voters is excellent, but not (in my opinion) sufficient.”

          “…we will need amendments, I think.”

          I have Mark Levin’s Liberty Amendments book too, and embrace the 11 ideas (with only minor quibbles). As you know, that approach bypasses the entrenched Washington D.C. statists and energizes the 50 states to initiate those amendments to restore original intent. But that tactic, in isolation, isn’t the only ingredient of the solution, because unless a state is already deep red, it will take much grass roots advocacy to ignite enthusiasm to join a collaborative amendment convention. And you can’t rally misinformed voters who remain stubbornly, sometimes even willfully, ignorant of the naturally-simple theories of limited government and individual liberty.

          Progressivism is superficially yummy and addictive. The deep blue states (like your CA) are a lost cause overall — despite the oasis of wisdom at your house. The knee-jerk leftist media culture assaulting the voters of the light blue, purple (like my CO), and even the light red states will be difficult to overcome. If it’s even still possible, then widespread persuasive “education” in Originalism will be needed to make people think deeper than just their selfish “I deserve free ice cream” or their liberal-guilt-ridden “We are obligated to give away free ice cream” views of pop socialism that the leftist media, clever interest groups, K-12 schools, and state colleges have brainwashed into them.

          Plus I didn’t just say education of teens/20’s voters is important — I also included older fence-sitting voters who identify as moderates and independents. You’re correct that persuasive education isn’t sufficient by itself. Many other factors must be addressed also, none of which are sufficient by themselves. They’re all pieces of the groundswell needed for a composite solution, if there really is a chance to restore limited government at this 11th hour of America’s decline. I have my doubts, but I’d rather die standing than live kneeling.

          If tacticians like you are going to be successful in proposing and executing structural changes, you need wind-direction-changers like me who are trying to open the minds of the voters who must ultimately vote for amendments or better politicians who will make better laws and less regulations.

          We both instinctively know the correct direction. You’re building the sailing ship. I’m encouraging the favorable winds.

          – Jeff


        • Here’s my second response, regarding these two paragraphs of yours:

          “If a bad law is part of “the body of laws” (and this is true, once enacted, until it is struck down), then you and I are very likely to agree that it should be held unconstitutional, but that hasn’t happened yet. We can decide that it is unconstitutional, and decide not to obey it (two different decisions), but this is tricky territory, it seems to me, as it is not easily distinguishable from what Obama himself does with laws that he doesn’t like (and often calls “unconstitutional” to defend his action or inaction).

          It is frustrating when a law, presenting a prima facie case of unconstitutionality, nevertheless gets a 5 to 4 decision in SCOTUS, and not always in our direction.”

          Outstanding expressions of principle and frustration, Keith. I agree that a less “tricky” name for an unlawful law is your phrase: a bad law that becomes a part of the body of laws until it is struck down (if the conservatives are vigilant and effective counter-punchers). And I’m grateful you highlighted that it’s tricky territory to distinguish between a morally-principled rejection of a law, and an illegitimate & impetuous “sour grapes” rejection of a law. That is precisely the territory I’m headed into next (if I ever get done noodling with your interesting comments), and so I will incorporate your observation of this dilemma into my next essay.

          – Jeff


      • Incidentally, I was not accusing you of trickery, just that the semantics themselves are tricky as in “need to be applied carefully to avoid confusion.” I did not suggest the word “illegal” — because it seemed to me too close a synonym of “unlawful.”

        I don’t think you’re engaging in double-speak. I am not “suspicious” of your writing. I haven’t nearly shut the door to hearing you out; I am here for that purpose. In short, I am on your side except for a minor comment on the word usage describing the problem.

        As an aside, even bureaucrats take a similar oath of office, and they are the source of the great majority of our laws (as regulations). And, sadly, even the legislators don’t write laws, generally. They are fed laws from outside lobbyists/NGOs/special interest groups, through legislative aides who are in a sense the real power in Washington. The system has been rotting with an incentive-driven cancer for a long time, and the disease is … progressive.

        ===|==============/ Keith DeHavelle

        Liked by 1 person

        • Keith, I’m not as thin-skinned as I came across. My feathers weren’t ruffled. Since you said my assertion was “probably wrong,” I assumed you were testing whether I had any dry powder left to defend the intentional paradox I used as the hook in my headline — “can a law be unlawful?”

          – Jeff


    • Keith, I would also observe that it’s clear your (and Citizen Tom’s) greater interest is in “What do we do about it?”, and you’re not necessarily as interested in hearing the case for why it’s morally wrong for the government to pass bad, unconstitutional, improper, wrong, inappropriate, laws. But there are a LOT of people who would never stop to question the behavior of lawmakers like I am doing here. It’s them I am primarily addressing, not you. Why? Because I believe that educating them to question their government’s actions is THE BEST thing within my control to help “do something about it.” Clearly, the impeachment avenue that was provided by the Constitution will never seriously be used, because there’s too much political posturing and media subterfuge in the modern political arena for impeachment to be practical. So influencing moderates, independents, and new voters in their teens and twenties that they should be careful and effective with their voting power is what I’m all about….especially in this series. As phadde2 put it, I’m trying to fight against the spread of moral relativism.

      – Jeff


      • Isn’t it a shame that Republicans have, right now, enough in both houses of Congress to impeach and convict, if they but chose to do so? As you said, it will not happen. One has to wonder: What would it take?

        ===|==============/ Keith DeHavelle

        Liked by 1 person

        • I agree the House could impeach. I’m not sure I agree the Senate could convict, unless the filibuster rule were revoked. That revocation of the filibuster rule would itself ignite a furious outrage from the Democrats and the pop news media leftists.

          Boehner, McConnell, Rove, Eric Cantor (ousted), GHW / GW / J Bush, Lindsay Graham, and other Republican statists are (understandably) afraid of taking bold anti-progressive steps because of the immediate attack they’d receive from the leftist news spin industry.

          I think a big factor in the modern futility of the impeachment process is 3 unfortunate realities about the 21st century so-called mainstream news media (ABC, CBS, NBC, PBS, NPR, CNN, MSNBC, NYTimes, WaPo, Time, Newsweek, HuffPo, etc.):

          1) They are truly left-leaning political sympathists — investigative journalism has been replaced by advocacy journalism;

          2) They have tremendous reach and pervasiveness, able to “flood the channel” with a unified spin on current events that seems factual & unarguable to the unsophisticated viewers/voters; and

          3) They no longer buy in to the philosophy that the First-Amendment-protected “free press” is morally obligated to view government skeptically — serving as the only watchdog that’s big enough for the statists to fear.

          As I think Dennis Miller quipped a couple years ago, “With Richard Nixon, the press were suspicious of ‘All the President’s Men.’ With Barack Obama, the press are ‘All the President’s Men.’ ”

          – Jeff


          • Well, technically they could do it; as filibustering a vote to impeach in the Senate is not a Constitutional provision. Such an attempt is subject to a majority-ruled “nuclear option,” just like the one that was used against the Republicans in recent years to force hard-leftist appointments into the executive and judicial branches.

            But I agree that the establishment media would exact a terrible price, through the message they would deliver constantly to voters. This could be countered if the Republican leadership grew, in addition to the spines needed, the jawbones that could make the case for a Constitutional, limited-government, free market nation of liberty and prosperity. But now I am talking about two statistically unlikely mutations of current leadership, and I am quite thoroughly in the realm of fantasy. This is not habitual territory for me.

            We will learn someday that we should have impeached him (i.e., that a majority will realize what many now accept) — when evidence of the real underpinnings of Fast and Furious, Benghazi, Iran, the IRS, the whistleblower vendetta, the EPA, the FDA, Pigford, the USDA, and so many others become public. The evidence exists in too many places, with the potential of people involved who are not completely controlled, to be softly and silently vanished away as is evidently the fate of many of Hillary Clinton’s emails. But at that point, it will be of historical interest only. And it will also depend upon the establishment media and academia no longer re-writing history.

            We have our tasks cut out for us.

            ===|==============/ Keith DeHavelle

            Liked by 1 person

  4. Jane says:


    You nailed it about the media. Impeachment wouldn’t happen because of the repercussions conservatives would receive from the media. It would be utter, irreversible annihilation. No politician would be willing to risk that.

    In general, the American people love emotionally driven news without caring if it has any factual basis. The media plays on our ‘root for the underdog’ heart strings to spin a tale of racism, sexism, and every other ism you can think of. I feel we are surrounded by brainwashed, reeducated communists with the media as our dictator. And I, for one, am heartily sick of it!

    I would recommend everyone reading: Underdogma: How America’s Enemies Use Our Love for the Underdog to Trash American Power by Michael Prell.

    Liked by 1 person

      • I’ve always enjoyed the tune. But we have seen that it is all-important whose laundry is involved. Media Research documents the days/weeks/months that establishment media allows “dirty laundry” from their protected favorites to go un-aired. Your comment elsewhere about “All the President’s Men” is exactly on point, I think.

        Would that we had a universally suspicious media!

        ===|==============/ Keith DeHavelle

        Liked by 1 person

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  8. Pingback: 1/26/2016: WE ARE ALL PILGRIMS – Citizen Tom

  9. The income tax is an unlawful thing.

    Liked by 1 person

    • Jeffrey, thanks for stopping by.

      I agree with you. Procedurally it was given the appearance of lawfullness by the 16th Amendment in 1913 at the beginning of the Progressive movement. Here is its text:

      “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

      It’s surprising to today’s fiscal conservatives that the income tax was primarily pushed by the Republicans of the day, until you realize that most Republicans in the early 1900s were big-government progressives.

      However, the 16th Amendment lacked reasoned legitimacy because of its open-endedness. Previous income tax laws passed during the Civil War era had been enacted with sunset dates, because they were intended for the limited purpose of repaying the war debt. The 16th Amendment, on the other hand, was an unconstrained blank check allowing all manner of populist-driven expansions. None of the advocates of the 16th Amendment ever said it would lead to the confiscatory top tax rate of 94% in 1944, or a period from the 1950s to 1970s where the top tax rate never dropped below 70%. (See this reference.) Who else but progressives would have used the alarming phrases “whatever source” and “without regard” in our beloved Constitution?

      The other reason the 16th Amendment lacked reasoned legitimacy is that it wasn’t accompanied by another amendment limiting the taxing and spending of the federal government to a certain percentage of GDP. This has led to the dangerous practice of deficit spending, recklessly higher even than the excessively-high income tax revenues. Here’s a comparison over the last 100 years (from some research I did in 2013 for this article):

      In 1915, the U.S. GDP was $907B and Federal spending was $24B (both in today’s dollars). That means spending was only 2.7% of GDP in 1915. By contrast, in 2013 the GDP was $16.2T and Federal spending was $3.7T. That’s 22.7% of GDP. It’s scandalous, but today’s average citizen thinks that’s “normal”.

      A properly-reasoned balanced budget amendment is needed that would demand that Federal spending not exceed about 15-17% of the moving average of the last 3 years of GDP. And that the Federal tax revenues not exceed 3% more than the spending percentage, allowing the national debt to be paid down. Once the national debt (currently $20.6T) is back down under, say, $10T then the difference between spending and revenues (as a percentage of GDP) should drop to 2%. When the debt is under, say, $5T then the difference should drop to 1%. And so on. That would demonstrate reasoned legitimacy.

      What are your thoughts?

      – Jeff


  10. Jeff, if we have to have an income tax, I think that the rate should be a flat rate of 15%. Make the capital gains tax 15%. No estate tax, no payroll tax, no corporate tax and no alternative minimum tax. Unlike many republicans, I see no issue with raising the minimum wage. Just do it gradually and study its effects on the economy.

    Another law that is unlawful is a law that prohibits drug use. I find the use of drugs as distasteful, however, what someone puts into their bodies is no business of another person. Many leaders in the U.S. have used these drugs and want to punish the rest of us if we did the same.

    I also find it absurd that there are laws that do not give legal recognition to same-sex couples, which they are entitled to under the 14th Amendment to the U.S. Constitution. Why enact laws to violate the rights of a minority, despite their guarantees of equal treatment under the law?


  11. I say get rid of it altogether. Since we are not a Communist society in the U.S.A, we should not have to contend with a Communist originated concept.


  12. My thoughts in a nutshell: If the income tax was Constitutionally prohibited, if the required number of states to meet its ratification was never met, then there is no legal basis for its existence. Some states actually refused to legally ratify it. These states were falsely recorded as approving it. Here are a few videos for you: 1: https://www.youtube.com/watch?v=dOgJcA1wUtI, 2: https://www.youtube.com/watch?v=Yd3s67D0hA4, 3: https://www.youtube.com/watch?v=DhkmaP1qA28 Watch them all and prepare for your blood to boil.


  13. Jeff, alleged fiscal conservatives are not really that way, despite their rhetoric. A true fiscal conservative would have been against direct taxation. Some people twist the words of our Founding Fathers to imply that they were in favor of tax rates being progressive. Most young Left wing types who claim that taxes should be progressive are entitlement addicts. There is a difference between a rich guy who says that government does not tax that person enough and a poor or low income person who says that government does not tax the rich person enough. The rich guy says he can afford to pay more and the poor guy is just looking for an excuse to be a moocher.

    Liked by 1 person

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