Covenant Government and the Sacred Trust of Freedom
July 10th, 2012 // 9:45 am @ Oliver DeMille
A friend recently told me that he considers family relationships much more important than politics.
He said marriage is a sacred, covenant relationship, and as such it is a higher priority than civil government.
I had two responses to this thought: First, I totally agree.
I think our families are a sacred trust and take a higher priority than pretty much anything—except our personal relationship with, and allegiance to, God.
Second, I wonder if our modern understanding of government has devolved so far from the time of the American founding that we don’t consider government a covenant or holding political office a sacred trust.
In fairness to my friend, he is a lover of freedom who cares deeply about our nation and the decline of liberty.
He is among the most dedicated students of freedom I know.
Lecturing him on anything related to freedom would certainly be preaching to the choir, and he certainly sees political leadership as a sacred trust.
But his words made me think.
Ideal government is a covenant, and was understood as such by the Israelites because of the teachings of Moses.
It was passed down over the generations and eventually became known as “The Divine Right of Kings”.
John Locke’s political treatises addressed the reality that such a divine right of any legitimate king was long lost by the time of the British monarchs.
The American founders discussed this concept at length, and the words “covenant,” “sacred,” and “trust” were widely used in connection with government.
A search for “covenant politics” in various founding writings and modern political journals will yield many interesting articles.
The word “covenant” is still used in our time—based on the legal tradition of Blackstone –in nearly every state and province of the United States and Canada in the common CC&Rs (Covenants, Conditions and Restrictions).
In Anglo-Franco-American law, a “covenant” was originally a specific kind of contract where both parties promise to do something for the other, and the contract is binding on both parties, even if one of the parties fails to perform or defaults.
Thus, there are fundamentally two kinds of contracts in law: Absolute and Conditional.
Conditional arrangements make up over 99% of contracts, where if the other side defaults the contract is void for both parties.
But the oaths of government officials are of the Absolute variety.
The founders made government service a covenant, rather than a simple contractual, arrangement.
Regardless of whether or not the people fulfill their duties, government officials are expected to do theirs—as expressed in their oaths of office.
The law also differentiates between “express” and “implied” covenants—“express” being those that are clearly written out, and “implied” being those that should be assumed by any reasonable standard of duty.
Jefferson used this concept when he sent American troops to protect U.S. citizens against the Barbary Coast pirates without any Congressional declaration of war.
He openly admitted that he had no “express” constitutional authority to take the action, but that the responsibility of presidency gave him an implied duty to protect those he served.
He followed the same line of reasoning when he signed the Louisiana Purchase.
The difference between him and some modern presidents who have taken seemingly similar actions is that he openly admitted that he had no authority, but had acted solely on his sense of duty, and he would not have blamed Congress for impeaching him as a legitimate response.
He acted according to what he considered his implied covenant duty and was willing to accept the consequences for exceeding his constitutional authority.
This clearly established the importance of covenant in governance.
Washington, Adams, Jefferson and Madison all followed the same course at different times when the chief executive had a duty to protect the national security of the U.S., and the Doctrine of National Preservation was a duty to which they were willing to sacrifice themselves on behalf of the nation.
In these cases Congress refused to exercise their check, impeachment, because they believed the leader had lived up to his Constitutional Oath to guard and “protect the Constitution of the United States against all enemies foreign and domestic.”
The law, again based on Blackstone and English legal tradition, also differentiates between “inherent” and “collateral” covenants.
An “inherent” covenant is the cause of any and all fiduciary responsibilities –meaning, a responsibility that a person takes upon himself automatically by entering into a covenant relationship.
In contrast, “collateral” covenants must be clearly stipulated and understood by all parties involved.
There is a lot more of this, but I won’t bore you with all the details, like: Joint versus Several covenants, Principal versus Auxiliary covenants, Continuing versus Dated covenants, Full versus Partial covenants, Restrictive versus Universal covenants, Usual versus Special covenants, and about 10 others that are foundational in Anglo-Franco-American legal traditions.
One that I should mention is Transitive versus Intransitive covenants.
“Transitive” consists of those which pass the duty on to the covenanter’s agents, successors, and in some cases, posterity.
This is important because it shows why some people might argue that the governance covenant may be as important as the marriage covenant.
Obviously, a covenant is a covenant, a supreme promise, so ranking them by importance is a bit ridiculous.
That said, the marriage covenant is intransitive, meaning that my spouse and I are both bound by it, but when I die, my children don’t become her spouse.
If I held a hereditary government position, such as the anointed kings of old, however, upon my death my oath and covenant of good governance would pass with full responsibilities and duties to my heirs.
Government is a covenant, or at least good, free government is.
Under the U.S. constitutional model, positions requiring an oath are transitive; for example, when a president dies or becomes incapacitated, the responsibilities inherent in the oath of vice-president devolve all presidential duties upon him.
He must receive his full authority by collateral covenant and take an official oath; but if there is a gap between when the president dies and when the oath is taken, he has the full responsibility of the office by covenant.
(Note: Responsibilities, but not authority.)
Again, this is repeated in most military and other government positions that require an oath of office.
There are really only 3 types of government:
1) government by fiat, where the strongest take power by force and rule by might;
2) government by contract, where the government serves as a mercenary, responding to the highest bidder in order to obtain a profit for government officials;
and 3) government by covenant, where the constituents delegate authority tied to responsibility and the leaders put their responsibilities above their authority.
I believe that the marriage covenant is the most important agreement in all of society, second only to our promises to God.
And, in fact, the marriage covenant often included promises to a spouse, society and God.
Marriage has huge ramifications on all facets of society, including law and politics but extending much further.
But let’s not forget that good government is also a covenant.
It isn’t a mere contract, where if the people shirk their duties the officials may simply ignore the Constitution, or where if the officials are corrupt the people can just give up and let freedom wane.
We all have a responsibility to maintain freedom, and this obligation is transitive, meaning that it is our solemn duty to pass on as much, or more, freedom to our posterity as we inherited from our ancestors.
This is, in fact, a sacred trust.
Perhaps Calvin Coolidge said it best when he declared, as the President of the United States, that, “The protection of rights is righteous.”
If this is true, and it is, what would we call the act of destroying rights or of allowing them to be lost through distraction or neglect?
Such questions are extremely relevant right now in modern America.
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Oliver DeMille is the chairman of the Center for Social Leadership and co-creator of Thomas Jefferson Education.
He is the author of A Thomas Jefferson Education: Teaching a Generation of Leaders for the 21st Century, and The Coming Aristocracy: Education & the Future of Freedom.
Oliver is dedicated to promoting freedom through Leadership Education. He and his wife Rachel are raising their eight children in Cedar City, Utah.
Category : Blog &Citizenship &Constitution &Featured &Generations &Government &History &Leadership &Liberty &Politics &Statesmanship
A Tale of Two Spending Sprees
July 9th, 2012 // 9:25 pm @ Oliver DeMille
Matthew Dowd said on ABC that for the last twenty years both parties have been big spenders.
One, he summarized, is the party of cutting taxes and spending more from Washington, the other is the party of raising taxes and spending more from Washington.
This says just about all we need to know about the problem.
Government is too big, and though the parties debate about where to spend more money (international affairs versus domestic entitlements), both keep pushing for more spending.
The current attitude in Washington reminds me of an old story told in some economic circles about the young man who grew up in the lap of luxury created by his father’s lifelong hard work.
As the man reached adulthood, his father cut him off from family money and told him he’d have to get a job or start a business and make his own way.
The boy approached his best friend, who with his own parent’s money had participated in the wasteful spending sprees over the years, and together they strategized how to get his father’s money without the “ridiculous” idea of going to work.
They settled on a plan, and on the day the boy was cut off from Dad’s money he went to his friend’s house, they went mountain climbing together, then swimming, and at 5:30 pm the friend handed the boy $200 and he went home to show his father.
When the dad asked how the first day of work had gone, the boy said work was hard but he had earned some money—then he showed off the $200.
The father walked over to the boy, took the money from his hand, turned, walked over to the fireplace and threw the money into the fire.
The boy was surprised, and didn’t know what to say.
“You are lying to me,” the father said. “You didn’t earn that money. Now go get a job.”
The boy and his friend brainstormed what to do. “Maybe you didn’t look like you had really worked,” the friend suggested.
So, the next day, the boy left early in the morning and the two friends went boating for the day.
At 5:30, the boy dressed in old work clothes, wiped dirt on his face and hands, and took his friend’s additional $200 to show his dad how hard he had worked.
The father listened to his son’s story, then walked over, took the cash, and threw it into the flames.
“You are still lying,” he said. “Now, grow up and go get a job.”
After a fruitless planning session, the friend told the boy in frustration, “I don’t know how he knows, but maybe the only solution is for you to actually get a job.”
The boy was getting hungry, though he ate during the days with his friend, and his dad mentioned that he needed to start paying rent or move out. So, the next day, the boy went out to found a job. He walked to the industrial side of town and stood in a line for odd jobs, and ended up shoveling gravel for nine hours.
Exhausted when he got home after 7 pm, the boy dragged his body through the front door and headed for bed.
“Come here, son,” his father called, so he walked into his father’s office.
“How was work today?” his father asked.
“”Good. I earned $85.”
“You’re still lying,” the father said.
Then he walked over, took the money from the boy’s hand, and turned toward the fireplace.
The boy leaped in front of his father, grabbed the cash from him, and said firmly, “Don’t you dare burn that money!”
The father smiled. “Ah…you actually earned this, didn’t you?”
Thomas Paine famously said that heaven knows how to put a proper price on its goods, and that something as valuable as freedom must have a very high cost.
The same is true of money.
Ten dollars that a person earned through hard work has much more value to him than ten dollars somebody else just gave him.
Government money is other people’s money, and until the citizens fulfill their role (far beyond voting) of closely watching government, the spending will continue.
Category : Aristocracy &Blog
Types of Capitalism
July 7th, 2012 // 8:52 pm @ Oliver DeMille
There are two major types of economies: market and command.
Within these two branches there are a number of subtypes, including various command-style economies such as socialism, communism, fascism, collectivism, authoritarianism and totalitarianism.
The market-economy subgroups are sometimes more confusing to people from free societies, because most of us have been trained to evaluate politico-economic issues in binary mode where we narrow any debate down to only two sides (e.g. socialist or capitalist, democratic or totalitarian, good or evil, free or not free, etc.).
That said, we live in an era where the various subtypes of market economics are in conflict.
During the Cold War the world was divided between two great camps, with market economies of all types firmly allied against all command economies, but in the post Cold War and post 9/11 world this has dramatically changed.
There are forces supporting each of the various subtypes of market economy, and often these are pitted against each other in ways unthinkable before 1989.
Differentiating between these subtypes is important for anyone who wants to accurately understand what it happening in today’s world:
- Mercantilism: the law gives preference and special benefits to the sector of the economy owned by the government.
- Corporatism: the law gives preference and special benefits to the sector of the economy owned by big corporations within the nation (sometimes referred to simply as “Big Business”).
- Capitalism: the law gives preference and special benefits to the sector of the economy owned by big capital (including big corporations like in Corporatism, but also wealthy foreign and multinational corporations and non-corporate institutions, wealthy foundations, wealthy trusts, non-profit entities, wealthy families, monied foreign investors, and others with mass amounts of capital).
- Keynesianism: the law gives preference and special benefits to companies and institutions (corporate but especially non-corporate) that are so big that they care more about their public image for societal responsibility and promoting social justice than about profit(s), market share or stock value.
- Free Enterprise: the law gives no special preference; it protects equal rights for all individuals and entities and leaves initiative and enterprise to private individuals, groups, businesses and organizations that are all treated equally and with minimal legislation by the legal code.
All of these subtypes are market-based, though according to Keynes himself Keynesianism “seeks the goals of socialism through market means.”
For the last three generations these five subtypes of market economics have all been lumped together under the label of “capitalism.”
While this is technically inaccurate—because capitalism is a subtype rather than the whole of market economics—it is the way the word “capitalism” has been used by most people.
By this definition, capitalism is synonymous with “market economics” and is a label for the entire market-style model.
So we have two definitions of “capitalism” in the current usage: one a title for the whole market field of economics (we’ll call it capitalism Type 1), and the other a specific type of market economics where preference is given to those with large amounts of capital (capitalism Type 2).
These are frequently confused in our contemporary language.
Supporters of freedom get understandably frustrated when anyone questions the superiority of Type 1 over command economies, but it is vital to understand how Type 2 differs from free enterprise.
Adding to this confusion, corporatism is not the same as Type 2 capitalism.
Corporatism doesn’t include capitalism Type 2 at all, but capitalism Type 2 always includes corporatism as part of what it calls “capitalism.” (Corporatism is to Type-2-capitalism what apple is to fruit.)
In short, Type 2 capitalism is much broader than corporatism, as shown in the definition above.
Again, this is confusing to most people, but understanding the details and nuances of how these words are used is extremely important.
Note that the American founders dealt with many similar language challenges, such as when Madison spent Federalist papers 10 and 14 explaining the important differences between democracies and republics, or when he used papers 18, 19 and 20 to elucidate the differences between federations, confederations, national and federal government.
Without such clarity, the Constitution would have been confusing to many Americans who were deciding whether or not to ratify it.
There are numerous similar examples, and part of being a free people is taking the time to understand the nuances of economic and political freedom.
And note that few things are more essential for free people than clearly understanding what type of economic system they want.
Based on the definitions above, consider these three conclusions:
1. All of the market subtypes are better than all types of command economies. Even the market approaches with the least freedom (Keynesianism and mercantilism) are significantly better (with more freedom, opportunity and prosperity for more people) than the command system with the most freedom (collectivism).
2. On the subject of the five subtypes of market economy, free enterprise is significantly better (with more freedom, opportunity and prosperity for all), than mercantilism, corporatism, capitalism Type 2, and/or Keynesianism.
3. The United States today has far too much mercantilism, corporatism, Type 2 capitalism, and Keynesianism and not enough free enterprise.
Robert’s Rules of Chess
July 5th, 2012 // 4:53 pm @ Oliver DeMille
When Chief Justice Roberts sided with the liberals to uphold Obamacare, it sent a shock wave through conservatism.
After all, Mitt Romney had lauded Roberts as the example of the kind of Justices he’d select if elected president, and Roberts was seen as a clear conservative by most Republicans.
With one vote, he angered half the nation and left many feeling betrayed.
But was Roberts playing chess while the rest of the nation engaged in checkers? Was his decision on Obamacare a Fork, a Pin or a Sac?*
Here are a few reasons why his decision may be an Exchange Advantage* in a long game, a strategic risk that could pay significant positive gains for conservatives in the years ahead:
- It put the Obamacare law front and center in the 2012 election, and since Obamacare is overwhelmingly unpopular—even among swing voters who will determine the election—this is a huge potential boost for Romney.
- It allows Republican candidates for the House and Senate to make a wildly unpopular law, Obamacare, a key reason to elect them in November. It creates a much stronger possibility of a Republican sweep (House, Senate, and White House).
- Few Americans pay attention to Supreme Court cases, so the few that get wide notice like Obamacare are a chance for the Court to make a splash. Roberts used this to boost the status of the Court. The White House, Congress, the states and the people now take the Court more seriously than ever before, and Roberts himself is a real player in Washington and the whole nation—no longer a minor player, but a central figure in everything Washington does.
- Roberts is now respected and feared by opponents in a way he never was before, and in a Marshall-like way that few Chief Justices have enjoyed. He can use this in the future by letting it be known how he might feel about a certain law or policy before it is enacted.
- Roberts has struck a blow to the view that the Court is all political, all of the time. Liberals can only attack cases by saying they hate a given case (e.g. Citizens United), not the conservatively-dominated Court. This creates significant opportunity for the Court to make conservative rulings more free from charges of politics.
- By siding with the Left in this decision, Roberts insulated himself for decades (maybe for the rest of his career) from criticism by the Left. Just as Obama can say, “Osama bin Laden” and shut down any suggestions of being soft on national security, Roberts can say “Affordable Health Care Act” and insulate himself and the Court against any criticism that the Court is just a branch of the Republican party.
- By siding with the liberals, Roberts got to write the Majority Opinion in a way that ruled the individual mandate a “tax.” This is very significant because:
- * This makes it likely that Republicans in Congress can repeal parts of Obamacare using reconciliation, which would only take 51 Senators rather than 60.
- * It also makes Obamacare a massive tax, the biggest tax hike in American history. This reality isn’t lost on the American people or on the Obama Administration. It immediately put the Obama campaign on the defensive: President Obama said it wasn’t a tax, but his lawyers argued at the Court that it was a tax. Taxes aren’t popular, and such a massive tax will likely become increasingly unpopular over time.
- Roberts used the opinion to decrease the power of Washington over the states by arguing that Obamacare would have been unconstitutional under the Commerce Clause or the Necessary and Proper Clause. This is one of the few rulings since the Great Depression that actually reduces the power of the federal government. Roberts may use the precedent of this case to strike down many federal programs in the future that cannot be considered a tax. If this happens, this case will be seen as the time where the era of big government was legally reversed.
- * On one hand, this is a strange way to put a legal end to big government. But this is not unprecedented. The Court has used various cases to rule on things that aren’t the direct focus of the case (see, for example, the United States v. Butler, 1936).
- * On the other hand, Roberts will probably never again have a case so publicized and likely to be considered by most Americans—which makes this the perfect case to create such a precedent and announce such an intention.
- * By announcing such a direction of the Court—to begin sizing down government—in this case, he made it very unlikely that President Obama or other liberal leaders would attack this change even though it strikes directly at their goals.
- This decision, more than any other event in 2012, increased the likelihood of Romney winning in November and nominating 1-3 Republican Justices to the Court during his presidency, and of electing more Republican Senators who confirm Justices that are nominated. This, above all, may be a long-term Roberts strategy. The question may have been: Is it worth the risk of upsetting conservatives in order to help get a strongly conservative court for the next two decades or more?
- Roberts appears to really believe that the individual mandate in Obamacare was unconstitutional under the Commerce and/or Necessary and Proper Clauses but constitutional as a tax. He called President Obama’s bluff, and this precedent will force any future law with a mandate to openly call it a tax. This is a blow to liberalism and a victory for conservatism.
- The Court can still rule on Obamacare in the Virginia case in 2015 or other cases that arise after Obamacare is implemented in 2014 and after. Indeed, the Court can use the precedent of a more narrow view of the commerce clause from the recent Obamacare case to strike down excesses of Obamacare in the years ahead. If Obama wins in 2012, the Court can re-rule and strike down various provisions on new grounds.
Some of us really like checkers, and if the 2012 election goes poorly for conservatives and the government continues to spend, regulate, borrow and socialize, many will look back on the Obamacare ruling as a mile marker in the loss of freedom.
I, for one, think the mandate was never meant to be a tax and as such is clearly unconstitutional.
In the parlance of another popular game, I think we should call a spade a spade.
But I do understand the idea that strategic risk is sometimes necessary to get a big win instead of a small one.
A case that creates as much passion as Obamacare only comes along rarely, and Roberts seems to have seen this as an opportunity to strike a powerful blow at the opposition.
Big government has been gaining momentum for a long time, and Robert’s risk may yet prove a brilliant maneuver that begins the reversal of bad Court decisions starting with Marbury v. Madison (1803).
I’m not holding my breath, but the optimist in me says that maybe, just maybe, this was a game-changer for freedom. Roberts may well have put his opponents en prise.*
At the very least, this is possible, and after so many decades of going in the wrong direction, I’m excited with the mere possibility of an effective freedom warrior among our top leaders.
Often one move is the difference between black queen or white queen to checkmate.
Time will tell.
* Chess Glossary
A Fork is an attack on two or more pieces simultaneously.
A Pin is where a piece may not be moved because another piece would be subject to capture.
A Sac is a voluntary offer of material for compensation in space, time, Pawn structure, or even force. A Sac can lead to an advantage in a particular part of the board. Note that a Sac is not always calculable and often entails an element of uncertainty (Also known as a Sacrifice).
In an Exchange Advantage, a player trades a piece for an enemy piece of greater value.
A chess piece is ‘En Prise‘ if it is left or moved to a square where it can be captured without loss to the capturing player.
(By the way, the best article I’ve seen on the Obamacare discussion is “We’re Having the Wrong Debate about Health Care” by Stephen Palmer)
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Oliver DeMille is the chairman of the Center for Social Leadership, and a co-creator of Thomas Jefferson Education.
He is the author of A Thomas Jefferson Education: Teaching a Generation of Leaders for the 21st Century, and The Coming Aristocracy: Education & the Future of Freedom.
Oliver is dedicated to promoting freedom through leadership education. He and his wife Rachel are raising their eight children in Cedar City, Utah.
Category : Blog &Constitution &Current Events &Featured
A Vital Leadership Trend that Isn’t Yet a Thing
June 27th, 2012 // 5:42 pm @ Oliver DeMille
We ne
ed a whole new level of leadership. And we need it soon. Just consider some of our pressing national challenges:
- 75% of current Americans worry that another recession is coming.
- U.S. consumer confidence in June is at a six-month low.
- The average price of a gallon of gas in the United States was $3.88 at the beginning of the year and it is $3.48 halfway through the year. Most experts predict that it will be below $3 a gallon by the end of 2012. A few say it will be above $4. Either way, we have a problem. Lower prices look like a positive trend, but they keep us addicted to foreign oil. The pattern is to jack up prices until they hurt so bad that we begin seriously seeking alternative energy sources, then ease back on prices a little until we give up on finding a better way. Then, when we’ve stopped weaning ourselves from our addiction, jack the prices up again. Only the right kind of leadership will solve this for the long term.
- President Obama’s support is down since 2008 in almost every voting demographic, but it is up 2 points among Hispanics. Few election experts believe Mitt Romney can win the election—especially in the battleground states—without a significant uptick in Hispanic support. And Romney came across to many as sharply anti-immigrant during the 2012 Republican primaries. Neither 2012 presidential candidate has yet shown the will to establish a truly effective national immigration policy.
- The July 2, 2012 cover story of Time Magazine reads: “The History of the American Dream: Is it Still Real?” The Asian, European and South Pacific versions for the same date held an alternative cover story: “Made in China: Why Apple’s Future Depends on the World’s Largest Market.”
- A June column in Newsweek calls this year’s graduates “The Not-So-Special Generation.”
- Over two-thirds of Americans want the government to use unmanned drones to hunt down criminals, but two-thirds do not want the same technology used to patrol highways and issue speeding tickets. We want more government oversight of others, less of ourselves.
- A majority of Americans want the government to decrease spending, but there is little agreement on cutting any specific program.
Many other serious national concerns could be cited, but one thing is certain: We are a nation deeply in need of more, and better, leadership.
Sadly, it appears increasingly evident that our political leaders may no longer be able to fulfill this role.
The story of Barack Obama is instructive on this point.
As a lifetime liberal with long experience and connections in the progressive community, President-Elect Obama took over the White House with big intentions of reframing our national politics into a less divisive, more cooperative endeavor.
He seems to have been surprised at the vehemence of the two-party system, and how quickly the opposing party lined up to get him out of office—regardless of what he did, or didn’t do, as a leader.
President George W. Bush, who came into office with big goals of creating a more compassionate conservatism, faced the same reality—the opposition lined up against him before he proposed a single policy.
Whether you are a supporter of President Obama, a critic, or more neutral, the reality of our new politics is frustrating.
The next president, either in 2012 or 2016, will likely face the same problem.
Welcome to the new system in Washington: A president isn’t judged for what he does as much as for which party he belongs to.
We are a nation with major struggles and we desperately need great leadership, but our political system has reached the point where our top elected officials have little chance of providing such leadership.
The system simply won’t allow it.
The next campaign starts the morning after Election Day, with no break between elections and no sense of a U.S. president we’ll all follow for four years.
Today’s system is more divided: the chief executive is now widely perceived as only as the president of the Republicans or the president of the Democrats.
We are at a crossroads in America.
We need great leadership as much as at any time in our history, but our political system no longer allows it to come from Washington.
We may have reached the point where only an Independent President will be able to get anything done.
Or, another solution may be a revolution of leadership, with leaders rising from other—non-political—arenas.
This may be one of the most important trends of the 21st Century, but it is not yet a trend.
Needed: A generation of non-political leaders to help America get back on track!
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Oliver DeMille is the co-founder of the Center for Social Leadership, and a co-creator of Thomas Jefferson Education.
He is the co-author of New York Times, Wall Street Journal and USA Today bestseller LeaderShift, and author of A Thomas Jefferson Education: Teaching a Generation of Leaders for the 21st Century, and The Coming Aristocracy: Education & the Future of Freedom.
Oliver is dedicated to promoting freedom through leadership education. He and his wife Rachel are raising their eight children in Cedar City, Utah.
Category : Blog &Current Events &Featured &Government &Independents &Leadership &Liberty &Politics &Statesmanship
