tv Life Liberty Levin FOX News June 23, 2019 7:00pm-8:00pm PDT
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culture that that pretty much means it's a political decision, that if the house of representatives has the votes, then that's pretty much good enough. is that how it works. >> i don't think so mark, so, the phrase high crime misdemeanor was specifically chose to be a very high bar and the reason for that is that our framers wanted the president to be independent of congress, one of the main functions of the president was to be one of the checks and balances against congress, which they thought, perhaps inaccurately was going to be by far the most powerful and most dangerous branch of government. they did not want congress to be able to toss the president out on the basis of any low standard at all, and they deliberately chose the phrase high crimes and misdemeanors which had a history in the common law because it referred to misdeeds about public
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nature of a very serious amount of abuse of power. i just wanted to mention, you read the impeachment clause to us, but you didn't mention the fact that when congress, when the senators are judging and impeachment, they are actually on oath, which tells us this is not just a political vote, they are engaged in a serious legal matter in which they are actually swearing to do justice at the time, and with the chief justice of the united states they are to preside and make sure that the entire affair is being done as a court of law, and not just a matter of politics. >> so if it is pursued as a mentor of politics, would be your point then that that's not what the constitution provides for. >> that's right, that in fact,
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it's an illegitimate use of the impeachment power. >> that's right, that isn't to say that it can be overturned because the senate is the sole judge of impeachments. there is no higher court to which it can be appealed, but the senators are on oath to comply with the constitution. >> and these words, as you point out, they have meaning, they debated it fairly extensively and there are things they dismiss to make sure the bar was relatively high, it was proposed and what did madison say. >> so george mason proposed the president be impeachable for mallet administration and madison objected to that thing that would effectively make him serve at the pleasure of
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the senate, meaning that they could get rid of him whenever they wanted to and that would destroy his independence. it's pretty clear that madison believed that the president needed to be insulated from impeachment for anything that isn't really truly high crime or misdemeanor. >> related to this, at least present day, we have a slew of subpoenas being issued by a slew of representatives. once one party left the house one representative and they cover other things, taxes, bank records, communications with his accountant, financial records, members of his family, his businesses, his associates and so forth. these subpoenas, is this something new? >> actually, it is. to hear as much of the discussion, you would think these inquiries go back to the
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beginning, but they don't. there's actually nothing in the constitution that gives congress the power to issue subpoenas at all. they do have their right to ask, to request of the president information regarding the state of the union which, president after george washington have complied with, but only after first declining to provide information where they thought it would be contrary to public interest to provide it. so that's in the constitution, but subpoenas and investigative powers are not there. charles proposed the congress be given the power to punish individuals for violation of privilege which is basically an attempt of congress but that was voted down by the constitutional convention. it is true that from the very close to the beginning, i think 1827 may have been the
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first year that this happened, congress has subpoenaed private individuals to come and provide information limited as necessary for the legislative duties of congress fairly narrowly understood. this did not extend to executive branch officials until relatively recent times. i believe the first time congress ever attempted to enforce a subpoena against the executive branch where the president had invoked executive privilege was under richard nixon. first time in executive branch official was actually held in contempt of congress in connection with the subpoena where the president had invoked executive privilege was 1982, coincidentally the mother of supreme court
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justice neil gorsuch. that's only happened a few times. it's never been approved by the supreme court. this is really a matter of political dispute between the two branches. >> so half a dozen committees, literally hundreds of subpoenas now, allegations that if the president doesn't comply with these subpoenas he is obstructing congress and their even arguing obstructing justice. presidents taking them to court to litigate this issue. how can it be obstruction if he's litigating the issue on separation of powers, grounds and also whether or not the house of representatives has the original authority to demand these kinds of records from the president, or for that matter, from any citizen. even the point you just raised, that is, there needs to be some legislative purpose. >> i think we have to understand that words like obstruction are thrown around as political rhetoric versus
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serious legal arguments. the only way the house of representatives can actually enforce these subpoenas is by going to court. this has only been done three times in american history. it's never gotten past the district court decision, it's not entirely clear that the courts even have jurisdiction, but this is what the house will need to do if it wants to enforce these subpoenas, but those are civil cases asking for a declaratory judgment or an injunction declaring the executive branch to provide the particular materials if such a case is brought and if the courts hold that the executive branch needs to provide the materials, i'm pretty confident they will be provided.
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>> what kind of precedent does this set for future congresses and future presidents? >> it seems to me the house democrats are getting very shortsighted. do they think that when they do this against president trump, the future republican congresses will not do it against future democratic presidents? it's very hard for me to it believe they think this is the proper way to do business. >> now, in terms of oversight activities which you have mentioned, subpoenas that we talked about, legislative purpose, what would the legislative purpose be to have the president's tax returns. >> i think it differs, there's been something like 81 subpoenas, some of them are much more closely related to legislative purpose than others, the claim about the president's personal tax returns is that they need to investigate whether the internal revenue service is properly auditing the president, it's not clear to me why that requires looking
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at his tax returns from before he was even president, batson unusual case of that one particular subpoena is, i think it's the only one that pursuant to a specific statute that has been passed by congress, authorizing the subpoena, and that statute does not limit the inquiry to legislative purpose, it seems, on its face, to allow the chair of the ways and means committee lieutenant demand the tax return of not just the president, but of anyone if they want to see if the chair of the ways and means committee wants to see your tax returns, according to the current chair, he can do it, that's what the statute seems to say. this is, i think it's a bit of a civil liberties disaster. it's never been done in this way, of course they're using it just against trump, but the
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statute is not confined to the president, it's any taxpayer, and i think it's exceedingly unlikely that the court is going to order this when the congress has no apparent legislative need for it. >> the justice said you don't get the tax returns, there's an opinion from the office of legal counsel, they said because the statute doesn't trump the constitution you don't have a legislative purpose, you're focused on one individual, one president. [inaudible] it's to make them public, the department of justice says that is not a lot legislative purpose. that's where this wil litigation is headed. don't forget to check us out on the been tv most weeknights. call us at 844 levintv or go
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to blaze tv.com/mark. don't forget, the hottest book in america written for you, un- freedom of the press. go get your copy too. we'll be right back. oh no, no, no, no, no, no, no... only pay for what you need. liberty. liberty. liberty. liberty. ♪ the ♪exus es... ...every curve, every innovation, every feeling... ...a product of mastery. lease the 2019 es 350 for $379/month for 36 months. experience amazing at your lexus dealer.
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professor michael mcconnell with the tenth amendment of the constitution. the powers not delegated by the constitution, no nor prohibited by, is that true? today? >> it's nominally true, but all, what really matters is how broadly we interpret the grant of powers to the federal government and when those words were written, the assumption was those powers would be interpreted fairly strictly. today there interpreted very generously so the amendment amounts to very little. >> and amendment amounts to very little and that's the result of what? judicial decision? >> it's a result of decisions by the representatives of the people in congress passing expansive laws that have been
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upheld by the supreme court. let's not blame the court, these are laws passed by congress. >> although the court, in part, is to blame, right? they take a look at the bill of rights so basically, to my way of thinking is the federal government does not benefit from the tenth amendment. there's the legislative branch, the executive branch or the judicial branch, they interpret it in a way that is very destructive of federalism. you have bureaucrats in the bowels of the protection agency that have more powers than states in some cases. is that a post- constitutional type of problem? >> let me just say, people, left and right do not believe in federalism when push comes
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to shove. so, certainly the new deal with progressives, they paid no attention to federalism go but frankly conservatives don't care much about it either so take immigration and whether the sanctuary cities question, here you have left liberals who are rediscovering the virtues of federalism but the other side of the coin is conservatives are forgetting them. >> immigration in the constitution is largely a federal activity, right? >> there are federal activities. >> we can have a whole hour of discussion of this. the constitution only gives congress power over naturalization. immigration was actually left to the states for the first hundred years. >> should be left to the states now? >> i think not. it seems to me perfectly
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reasonable to interpret powers over commerce and naturalization to include immigration, and i think it is something that logically should be dealt with at a national level, but i don't think that means the national government is the only unit that has any authority to legislate. >> do we have a constitution going? how you interpret the constitution? i know we have precedent, we have, you make the point, you say hey, look, it looks like the ends justify for the political spectrum. federalism gets you where you want to go and you support that. if the national government gets you where you want to go, i would dispute that somewhat, i think at least constitutional originalists are little bit more clear about what they believe regardless of the outcome and i think the left is which is. [inaudible] but, what do we have?
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>> let's not exaggerate. we do still have a constitution. the skeleton of this government, the bare-bones of the government are elected congresses, elected presidents, limited powers, division of power between the national government and the states, due process of law, independent courts, we stick remarkably to the constitution. it is true there are a number of provisions in the constitution where i think, and perfect trim perhaps you think the courts have strayed and congress has straight, but that doesn't mean. [inaudible] >> the new deal is simply president roosevelt's description of this program. he was elected president. >> we had a number of supreme court decisions that really had to turn the constitution
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on its head. i'm not saying good or bad, whether it social security or a number of other decisions that were made throughout that time, the fact is, it's not in the constitution, but there is an adjustment that's made over the course of time, correct. >> the word commerce is in the constitution and we know what that meant, it didn't mean an explosive bureaucracy, it meant congress. >> this is true, but as we become a more integrative national economy, i think it is only logical that the ability to regulate that national economy has grown in scope, but we could argue about any individual or provision. i do think. those, there was a period of time in our history when the courts paid much less attention to what the constitution said then they should have and we have a lot
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of precedents that were set in those periods. i also believe in the last 20 or 30 years, we have begun moving back toward court that is more attentive to the constitution, and i don't just mean the conservative justices, i think even the liberal justices on the supreme court are much more attentive to text in the history and the actual legal justifications for what they do than their predecessors 50 or 60 years ago. >> why do you think that is. >> i think there has been a big debate nationally among lawyers and law schools, to some extent, even out in the political campaigns over the nature of the judiciary, and i think that debate has been one on the merits by those who say that if we are going to be a constitutional republic that means we need to pay attention to the constitution and not just to treat it as whatever the supreme court wants it to mean.
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get your dna kit today at ancestry.com. >> life "america's news headquarters". the u.s. is ready to resume talks with north korea if pyongyang signals and wants to talk about denuclearization. that's according to secretary of state, mike pompeo. avail telling reporters today he hoped a letter president trump sent to kim jung-un will provide
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a good foundation for renewed talks. kim reportedly called the letter excellent and that he would quote, seriously contemplate the content. the letters content is not yet been revealed. a nerve-racking hour is the flying wall and does dazzled times wherefrom 25 stories up. brother and sister nick and liana of the famed family waking or walking from opposite ends of the high wire. this happened two years after she was seriously hurt in a fall in florida. thankfully, they both made it across safely. i'm aisha and i'm back to life, liberty and livid. mark: professor mcconnell, progressive movement is not all that concerned about the constitution. when you read woodrow wilson or john dewey or all these other fellows at the end of the 1800s, early 1900s and they viewed the courts, in particular, as a
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change agent and they would be dismissive of the declaration and the constitution and they wrote about it this constitution comes from wilson talks about, as you know, you can have separations exists in the federalism stuff is quite an interesting but now were an industrial power and a superpower in the different body parts have to work together. it's like a living organism. they don't seem to be all that worked up about the constitution in terms of complying with it. >> the progressives were openly contemptuous of the constitution. woodrow wilson was a critic of the constitution. we do not hear that very much today. modern-day progressives are not the same as woodrow wilson. in some ways better or worse but i think the respect for the constitution as a text that
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needs to be authoritative is alive and well among modern progressives and, in some ways, donald trump has made it ever so much more so because when there's a president that they dislike and distrust where do they go? they immediately go to screen to the constitution and i don't mean screen and an insulting way but we all should scurry to the constitution for protection when our government is going awry so i think on the left that there is more interest in the actual content of the text and history of the constitution that there has been at any other time in my professional life. mark: what about the attack on the electoral college? that seems to be rather progressive and i don't think there's a candidate on the left that says but that goes to the heart of our republican system which is the national popular vote which specifically they
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rejected a national popular vote. that changed the entire makeup of the government, it doesn't? >> it's an important feature that our constitution would survive a constitutional amendment to move toward a popular vote. what i don't hear the left saying we should ignore the electoral college but what i hear is a interesting work around that they are proposing for a compact among the states where a state constituting a majority of electoral college with promise and advanced to cast their electoral votes in accordance with the winner of the national vote but that is not to ignore the electoral college but that's to work around it. mark: i am not saying their lawless and i don't know how you
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would ignore the electoral college is a practical method but could not the argument be made -- let me try this, could the argument be made that they've knocked down most of the obstacles that were problematic? as you said earlier there's no dispute anymore over the new deal and no dispute on immigration and it's a political dispute where the power is but there's no dispute about most of these things anymore so just a matter of exploiting. >> well, we have disputes over different things at different eras and we have plenty of important constitutional disputes. today it is true that when something has been thoroughly hashed out and the american people seem edified by the resolution that tends to be regarded as solid. mark: i think they've done a hell of a good job of turning the constitution inside out and
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it scares me because i hear the arguments come out about taxes and arguments now about all kinds of proposals that i'm sure the framers of the constitution would have found absolutely appalling. and yet, i find, very little argument from the public debate, in the media, about is that constitutional or is there an obstacle to that? there are political arguments and economic arguments but i'm not finding constitutional arguments. >> i think this is true. on the other hand i think among our political classes we don't see very serious arguments at all but it all seems to be posturing and i don't mean all but there's much more posturing than there is substance whether constitutional argument or otherwise. one place you have not mentioned and i know from the book you care about where i think there's a very dangerous lack of regard for the constitution is freedom
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of speech where dangerously large minorities of young people are now saying they do not believe in freedom of speech for people within with whom they fiercely disagree, various egalitarian ideologies trump freedom of speech especially on campus and i think that is one of the more frightening things going on. today, it's interesting because this is happening at a time when the courts are as protective of freedom of speech as they have ever been and maybe even more than they ever have been in so there's a huge disjunct between the protection for freedom of speech that is to be found in the courts versus the lack of regard for the values of freedom of speech that found on college campuses and a lot of other places in america.
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mark: how is freedom of the press doing in your opinion? >> i think it's a legal matter and it's extremely strong. i think the press is an institution is, in very bad shape, i think it has economic problems with the advent of the internet but i also think that the political -- anytime an institution becomes heavily overwhelmingly of one political side or the other it ceases to do his job properly. i'm in academia and certainly universities are this way. they suffer from this but the process as well and when universities and the press is overwhelmingly of one political ideology they forget their job is truth telling and begin to think their job is i don't know, resistance or whatever the catchphrases of the day but we
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state -- we hear this phrase all the time but is it in the constitution? where does that come from? >> the word separation of church and state are not in the constitution but as a shorthand version of what the establishment clause means and does have a deep history because there were in the 18th century prominent writers who ultimately advocated for a union between church and state is a famous essay by one of the bishops in the church of england by that very title and our framers did not believe in a union between church and state. they wanted them separate and the main thing to understand about the church of england and the established church is that this was the government control over religion and what our
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founders were most opposed to was having the government to be able to control religion. this did not mean that the framers believed the american people should be any less religious than they choose to be and did not mean the culture and there was anything wrong with having religious elements in the culture but it meant we were not have a system in which government was able to tell us what to believe or control churches and decide what their doctrines were and who their personal would be and so forth. for example, we had a recent case in the u.s. up in court unanimous decision in a case called [inaudible] in which the civil rights laws of employment dissemination laws were used to tell a religious organization that they cannot fire a particular person who is in a position of the minister and the supreme court, held quite
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correctly, that it's an establishment of religion for the government to decide who will be a minister in a church. of course, church here means not just christian churches but means synagogues and mosques and temples in any religious organization the government simply has to keep out of the business of telling them what to believe, who their leadership will be and essentially what they will do. mark: what about school prayer and manger scenes? we see these battles going on -- my father used to say to me we are jewish and we used to go to school and we would pledge allegiance and say christian prayer and do not bother me in the least. the one told me i had to become christian. or i had to change my face. for a long part of our history that was the case so it's unconstitutional or not and when
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did this happen? >> i think the school prayer decisions are, in fact, correct. it is true that there was a school prayer in the public schools going way back but not to the founding, by the way, because of the founding we do not have public schools and public schools, as we now know them, are a phenomenon of the 1830s and thereafter. from the beginning prayers and bible readings in the public schools were controversial all along. just as an example in philadelphia in the 1830s the school board decided voluntarily to allow catholic students to read the bible from their own translations rather than the king james cancellation and when that happened the protestants of philadelphia rioted and it was an anti-catholic riot, very ugly
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thing. it was set off by this problem the supreme court did not address this issue until the 1960s but i think it is quite reasonable interpretation of the establishment clause to say that the government should not take upon itself the duty of teaching our children what prayers to say and how to say them. from a religious point of view this is quite important because from -- if the government will do this is not going to do a very good job. what is it that the government does a good job of and the prayer that was written against the tally in the case and thus up in court was written by a committee and when i teach this case i like to tell my students that the prayer i read them the prayer and it's like to whom it may concern is completely bland and contentless prayer and for
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our government to be taking a serious thing like a prayer and making it into this bland thin thing -- does not do anybody any good. mark: don't forget to join me almost every weeknight on live in tv. sign up at place tv .com -- mark or give us a call at three and one and join our wonderful conservative community. by the way, did i mention? four times "the new york times" number one bestseller. i know it's killing it. get your copy, on freedom of the press. we'll be right back. ♪ i switched to liberty mutual,
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♪ mark: professor mcconnell, what of this religious issue, separation of church and state, and the point about what about that realism and the opportunity for local school districts and states to make their own decision because there is a rubber there? >> mark, this has been a big issue. at the beginning, there is no doubt the first amendment, including freedom of religion, applied as a matter of federal constitutional law only to the united states government. in fact, they voted down
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madison's proposal to extend our religious freedom protections against state governments as well, even though he said that was the most important amendment of all the proposals for the bill of rights. they voted it down on federalism grounds and some we've been talking about but in the years before the civil war it turned out that states were using their authority to violate virtually every one of those important principles in the service of slavery so that abolitionists who wanted to make speeches against slavery were denied freedom of speech and newspapers that advocated for abolition could not be circulated and ministers who wanted to deliver sermons contrary to slavery were prevented from taking the pulpit and every single important bill of rights was violated in order
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to prop up this, essentially totalitarian system of slavery. when the civil war comes and we have the 14th amendment the 14th amendment does nationalize issues of fundamental human rights that had been left to the states by the initial. mark: and ratified by the state. >> yes, ratified and there are lots of disputes about how this has done an eye, personally think the most persuasive interpretation is that it was the privileges or immunities clause of the 14th amendment that does that and the privilege and immunities clause states, no state shall make or enforce any law which infringes or denies to any person the privileges and immunities of citizens of the united states.
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now, there's lots of historical dispute but there were plenty of people at the time, including the senator who introduced the amendment on the floor of the senate who said what are these privileges and immunities because he proceeded to read from the bill of rights. there is solid historical support as well as the logic makes so much sense after the civil war that they were not going to allow the state to be able to do things that had propped up slavery in this way. i think that is what the 14th amendment which ultimately means. mark: we'll be right back. ♪
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(rates vehicles for safety, andr hsome reach a level of top safety pick. but only a select few of the very safest vehicles are awarded a top safety pick plus. the highest level of safety possible. how many 2019 top safety pick plus-winning vehicles does your brand have? one. two. how about eight? subaru has more 2019 top safety pick plus awards than honda and toyota brands combined. there's safe, and then there's subaru safe. ♪ mark: what was the [inaudible] decision? >> that was one of the first supreme court decisions to hold that, in this case, the establishment clause applies against the states and every -- everything was about in the particular township there was
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only two schools and a public school and catholic school. the legislator and the school board voted to treat all the kids exactly the same way and got free transportation to school and a number of people, including a lot of anti- catholic people, argued that this violated the separation of church and state because catholic schools cannot receive aid of any sort even on a neutral basis. they lost the opponents lost five-four in a very strangely worded opinion but later this principle was adopted with a vengeance holding that -- for example, in the case that i was involved in in the supreme court one of my feet in the report the court held that underprivileged kids economically and educationally deprived kids could not even receive special
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tutoring in remedial math and english from public school teachers on the premise of their catholic schools. apparently, out of the worry that somehow these public school teachers would be influenced by, i don't know, crucifixes on the wall or whatever it was that would influence them to infiltrate religion as part of remedial math. i'm happy to say that case was formally overruled about 20 years later and now the supreme court takes the position that as long as the government is providing equal benefits to everyone, publics, private school, jewish school, whatever it happens to be, catholic school, if everyone is tweeted neutrally it does not violate the assessment cause.
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that seems to me to be a cracked homeschool. mark: it's been fascinating, professor. i appreciate it. law students at stanford are lucky. don't forget, join us next time on life liberty and limited. ♪ tomi: hello i'm tomi lahren and welcome to never play dead. you may recognize me for my final thoughts and you know how i feel about illegal immigration, guns and freedom but you know who i voted for and why. you know a lot about me but in my book, never played it, of the truth makes you unstoppable, out july 2 you'll learn even more. i've been fired, sued, dropped, disinvited, heckled, left at, slandered and betrayed and dumped. i've had water thrown at me and restaurant and frequently shout did that with expletives and yet here i am stronger than ever. i twitter notifications don't define me. but why, at 26 years old, have the confidence to speak my mind
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