Interesting Read | The History and Danger of Administrative Law by Philip Hamburger

P. Bunyan.  I get this publication every month. It is a short and easy read. This one really got me because we all know this is an issue but it really helps me to explain these things to other folks when someone who would seemingly be on their side comes out and explains that what they do is really wrong.  This guy puts it into a nice context and gives some history of it. I really like how he sublimely suggests that today we have a King and not a President.

Enjoy
The following piece by Philip Hamburger is Copyright © 2014 Hillsdale College. The opinions expressed in Imprimis are not necessarily the views of Hillsdale College. Permission to reprint in whole or in part is hereby granted, provided the following credit line is used: “Reprinted by permission from Imprimis, a publication of Hillsdale College.” SUBSCRIPTION FREE UPON REQUEST. ISSN 0277-8432. Imprimis trademark registered in U.S. Patent and Trade Office #1563325.

September 2014 Imprimis

The History and Danger of Administrative Law

Philip Hamburger
Columbia Law School

PHILIP HAMBURGER is the Maurice and Hilda Friedman Professor of Law at Columbia Law School. He received his B.A. from Princeton University and his J.D. from Yale Law School. He has also taught at the University of Chicago Law School, the George Washington University Law School, the University of Virginia Law School, and Northwestern Law School. A contributor to National Review Online, he has written for several law reviews and journals, including theAmerican Journal of Legal History, the Supreme Court Review, theNotre Dame Law Review, and the Journal of Law and Politics. He is the author of Separation of Church and State, Law and Judicial Duty, and, most recently, Is Administrative Law Unlawful?

The following is adapted from a speech delivered on May 6, 2014, at Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., as part of the AWC Family Foundation Lecture Series. 

There are many complaints about administrative law—including that it is arbitrary, that it is a burden on the economy, and that it is an intrusion on freedom. The question I will address here is whether administrative law is unlawful, and I will focus on constitutional history. Those who forget history, it is often said, are doomed to repeat it. And this is what has happened in the United States with the rise of administrative law—or, more accurately, administrative power.

Administrative law is commonly defended as a new sort of power, a product of the 19th and the 20th centuries that developed to deal with the problems of modern society in all its complexity. From this perspective, the Framers of the Constitution could not have anticipated it and the Constitution could not have barred it. What I will suggest, in contrast, is that administrative power is actually very old. It revives what used to be called prerogative or absolute power, and it is thus something that the Constitution centrally prohibited.

But first, what exactly do I mean by administrative law or administrative power? Put simply, administrative acts are binding or constraining edicts that come, not through law, but through other mechanisms or pathways. For example, when an executive agency issues a rule constraining Americans—barring an activity that results in pollution, for instance, or restricting how citizens can use their land—it is an attempt to exercise binding legislative power not through an act of Congress, but through an administrative edict. Similarly, when an executive agency adjudicates a violation of one of these edicts—in order to impose a fine or some other penalty—it is an attempt to exercise binding judicial power not through a judicial act, but again through an administrative act.

In a way we can think of administrative law as a form of off-road driving. The Constitution offers two avenues of binding power—acts of Congress and acts of the courts. Administrative acts by executive agencies are a way of driving off-road, exercising power through other pathways. For those in the driver’s seat, this can be quite exhilarating. For the rest of us, it’s a little unnerving.

The Constitution authorizes three types of power, as we all learned in school—the legislative power is located in Congress, executive power is located in the president and his subordinates, and the judicial power is located in the courts. How does administrative power fit into that arrangement?

The conventional answer to this question is based on the claim of the modernity of administrative law. Administrative law, this argument usually goes, began in 1887 when Congress created the Interstate Commerce Commission, and it expanded decade by decade as Congress created more such agencies. A variant of this account suggests that administrative law is actually a little bit older—that it began to develop in the early practices of the federal government of the United States. But whether it began in the 1790s or in the 1880s, administrative law according to this account is a post-1789 development and—this is the key point—it arose as a pragmatic and necessary response to new and complex practical problems in American life. The pragmatic and necessitous character of this development is almost a mantra—and of course if looked at that way, opposition to administrative law is anti-modern and quixotic.

But there are problems with this conventional history of administrative law. Rather than being a modern, post-constitutional American development, I argue that the rise of administrative law is essentially a re-emergence of the absolute power practiced by pre-modern kings. Rather than a modern necessity, it is a latter-day version of a recurring threat—a threat inherent in human nature and in the temptations of power.

The Prerogative Power of Kings

The constitutional history of the past thousand years in common law countries records the repeated ebb and flow of absolutism on the one side and law on the other. English kings were widely expected to rule through law. They had Parliament for making law and courts of law for adjudicating cases, and they were expected to govern through the acts of these bodies. But kings were discontent with governing through the law and often acted on their own. The personal power that kings exercised when evading the law was called prerogative power.

Whereas ordinarily kings bound their subjects through statutes passed by Parliament, when exercising prerogative power they bound subjects through proclamations or decrees—or what we today call rules or regulations. Whereas ordinarily kings would repeal old statutes by obtaining new statutes, when exercising prerogative power they issued dispensations and suspensions—or what we today call waivers. Whereas ordinarily kings enforced the law through the courts of law, when exercising prerogative power they enforced their commands through their prerogative courts—courts such as the King’s Council, the Star Chamber, and the High Commission—or what we today call administrative courts. Ordinarily, English judges resolved legal disputes in accordance with their independent judgment regarding the law. But when kings exercised prerogative power, they expected deference from judges, both to their own decrees and to the holdings and interpretations of their extra-legal prerogative courts.

Although England did not have a full separation of powers of the sort written into the American Constitution, it did have a basic division of powers. Parliament had the power to make laws, the law courts had the power to adjudicate, and the king had the power to exercise force. But when kings acted through prerogative power, they or their prerogative courts exercised all government powers, overriding these divisions. For example, the Star Chamber could make regulations, as well as prosecute and adjudicate infractions. And defenders of this sort of prerogative power were not squeamish about describing it as absolute power. Absolutism was their justification.

Conceptually, there were three central elements of this absolutism: extra-legal power, supra-legal power, and the consolidation of power. It was extra-legal or outside the law in the sense that it bound the public not through laws or statutes, but through other means. It was supra-legal or above the law in the sense that kings expected judges to defer to it—notwithstanding their duty to exercise their own independent judgment. And it was consolidated in the sense that it united all government powers—legislative, executive, and judicial—in the king or in his prerogative courts. And underlying these three central elements was the usual conceptual justification for absolute power: necessity. Necessity, it was said, was not bound by law.

These claims on behalf of absolutism, of course, did not go unchallenged. When King John called Englishmen to account extralegally in his Council, England’s barons demanded in Magna Carta in 1215 that no freeman shall be taken or imprisoned or even summoned except through the mechanisms of law. When 14th century English kings questioned men in the king’s Council, Parliament in 1354 and 1368 enacted due process statutes. When King James I attempted to make law through proclamations, judges responded in 1610 with an opinion that royal proclamations were unlawful and void. When James subsequently demanded judicial deference to prerogative interpretations of statutes, the judges refused. Indeed, in 1641 Parliament abolished the Star Chamber and the High Commission, the bodies then engaging in extra-legal lawmaking and adjudication. And most profoundly, English constitutional law began to develop—and it made clear that there could be no extra-legal,   supra-legal, or consolidated power.

The Rise of Absolutism in America

The United States Constitution echoes this. Early Americans were very familiar with absolute power. They feared this extra-legal, supra-legal, and consolidated power because they knew from English history that such power could evade the law and override all legal rights. It is no surprise, then, that the United States Constitution was framed to bar this sort of power. To be precise, Americans established the Constitution to be the source of all government power and to bar any absolute power. Nonetheless, absolute power has come back to life in common law nations, including America.

After absolute power was defeated in England and America, it circled back from the continent through Germany, and especially through Prussia. There, what once had been the personal prerogative power of kings became the bureaucratic administrative power of the states. The Prussians were the leaders of this development in the 17th and 18th centuries. In the 19th century they became the primary theorists of administrative power, and many of them celebrated its evasion of constitutional law and constitutional rights.

This German theory would become the intellectual source of American administrative law. Thousands upon thousands of Americans studied administrative power in Germany, and what they learned there about administrative power became standard fare in American universities. At the same time, in the political sphere, American Progressives were becoming increasingly discontent with elected legislatures, and they increasingly embraced German theories of administration and defended the imposition of administrative law in America in terms of pragmatism and necessity.

The Progressives, moreover, understood what they were doing. For example, in 1927, a leading Progressive theorist openly said that the question of whether an American administrative officer could issue regulations was similar to the question of whether pre-modern English kings could issue binding proclamations. By the 1920s, however, Progressives increasingly were silent about the continuity between absolute power and modern administrative power, as this undermined their claims about its modernity and lawfulness.

In this way, over the past 120 years, Americans have reestablished the very sort of power that the Constitution most centrally forbade. Administrative law is extra-legal in that it binds Americans not through law but through other mechanisms—not through statutes but through regulations—and not through the decisions of courts but through other adjudications. It is supra-legal in that it requires judges to put aside their independent judgment and defer to administrative power as if it were above the law—which our judges do far more systematically than even the worst of 17th century English judges. And it is consolidated in that it combines the three powers of government—legislative, executive, and judicial—in administrative agencies.

Let me close by addressing just two of many constitutional problems illuminated by the re-emergence of absolutism in the form of administrative power: delegation and procedural rights.

One standard defense of administrative power is that Congress uses statutes to delegate its lawmaking power to administrative agencies. But this is a poor defense. The delegation of lawmaking has long been a familiar feature of absolute power. When kings exercised extra-legal power, they usually had at least some delegated authority from Parliament. Henry VIII, for example, issued binding proclamations under an authorizing statute called the Act of Proclamations. His binding proclamations were nonetheless understood to be exercises of absolute power. And in the 18th century the Act of Proclamations was condemned as unconstitutional.

Against this background, the United States Constitution expressly bars the delegation of legislative power. This may sound odd, given that the opposite is so commonly asserted by scholars and so routinely accepted by the courts. But read the Constitution. The Constitution’s very first substantive words are, “All legislative Powers herein granted shall be vested in a Congress of the United States.” The word “all” was not placed there by accident. The Framers understood that delegation had been a problem in English constitutional history, and the word “all” was placed there precisely to bar it.

As for procedural rights, the history is even more illuminating. Administrative adjudication evades almost all of the procedural rights guaranteed under the Constitution. It subjects Americans to adjudication without real judges, without juries, without grand juries, without full protection against self-incrimination, and so forth. Like the old prerogative courts, administrative courts substitute inquisitorial process for the due process of law—and that’s not just an abstract accusation; much early administrative procedure appears to have been modelled on civilian-derived inquisitorial process. Administrative adjudication thus becomes an open avenue for evasion of the Bill of Rights.

The standard justification for the administrative evasion of procedural rights is that they apply centrally to the regular courts, but not entirely to administrative adjudication. But the history shows that procedural rights developed primarily to bar prerogative or administrative proceedings, not to regulate what the government does in regular courts of law. As I already mentioned, the principle of due process developed as early as the 14th century, when Parliament used it to prevent the exercise of extra-legal power by the King’s Council. It then became a constitutional principle in the 17th century in opposition to the prerogative courts. Similarly, jury rights developed partly in opposition to administrative proceedings, and thus some of the earliest constitutional cases in America held administrative proceedings unconstitutional for depriving defendants of a jury trial.

* * *

In sum, the conventional understanding of administrative law is utterly mistaken. It is wrong on the history and oblivious to the danger. That danger is absolutism: extra-legal, supra-legal, and consolidated power. And the danger matters because administrative power revives this absolutism. The Constitution carefully barred this threat, but constitutional doctrine has since legitimized this dangerous sort of power. It therefore is necessary to go back to basics. Among other things, we should no longer settle for some vague notion of “rule of law,” understood as something that allows the delegation of legislative and judicial powers to administrative agencies. We should demand rule through law and rule under law. Even more fundamentally, we need to reclaim the vocabulary of law: Rather than speak of administrative law, we should speak of administrative power—indeed, of absolute power or more concretely of extra-legal, supra-legal, and consolidated power. Then we at least can begin to recognize the danger.

Source Link:  http://imprimis.hillsdale.edu/current

October 13th of 2014.

Dialog: ISIS on the Border and My Confession

By QUINTAS DIAS.  From Email October 12 of 2014.

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Report: Feds Arrest Four ISIS Terrorists in Texas

Apprehended in the last 36 hours… Government watchdog group Judicial Watch says they have received intel from high-level government sources claiming that federal …
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Man, all of a sudden we have Fox News (faux news, lol) screaming that ISIS is affiliated now with radical Black Muslims.  The f–[expletive]? What does that mean?  Well, the black chop dude that did that lady recently in OK is a rad black Muslim.  Digressing…
I am very leery about a lot of this.  I’ve been had before and a lot of this stinks.  Especially with ISIS suddenly evolving out of no where.  I do not buy that crap.  Nothing in politics suddenly evolves.  Digressing…
Back in the 1970s, we had the Black Liberation Army (BLA) blowing shit up and killing police officers, robbing banks, and killing folks.  Quite a few of them were Muslims.
My contacts conclude that after making some WAGS (wild ass guesses) and intelligence assessments, that like the Black Panthers, present day radical black Muslims have morphed to serve a new purpose…dunno for sure what it is.  Digressing again…
I had a lot of experience back in my day with the George Jackson Brigade and that asshole, John Sherman, the Brigade’s leader robbing banks and blowing shit up in the Pac NW.  His girlfriend, a gorgeous legal adviser slipped him a handgun that he used to escape custody after he got shot up and was convicted of bank robbery after the memorable Tukwila, WA bank robbery and blazing shoot out that left Sherman wounded.
Back then, I was hot on the trail of Sherman, and before that on the trail of the SLA (Symbionese Liberation Army).  We had set up a road block to intercept Sherman supposedly on his way back from CA, but we were too late.  An act of God?  I don’t know, but we were determined to shoot it out with Sherman and his bad boys.  He got past us.  Good for him, good for me.
I was also assigned to track leads regarding the SLA and Patty Hearst’s movements in the PAC NW back in the day.  I didn’t have a clue about the deep state politics and the agenda involved in these incidents until much, much later.
Today, I and a lot of other cops, wiser, and much more mature, are quite bitter because we had the wool pulled over our eyes many times over by our own government.  We did not like bank robbers or armed robbers (didn’t like the FBI that much either).  But we respected an honest criminal.  Imagine how we felt when we discovered that another bank robber, Cinque (Donald deFreeze) of the SLA (and perhaps Sherman) were in fact manipulated by the Illumines inside the CIA and the FBI.
Note: these later day findings apply equally well to another major asshole we were chasing around back then.  Who was that?  Well, it was that Weatherman dude, Bill Ayers, the bummer man’s mentor, who claims little knowledge of Obama, but then smirks that he maybe wrote Bummer’s biography, “Dreams of my Father” (Bill, you were an [expletive] back then and you are still a [expletive]).
Today, many years later, the inescapable conclusion is that these people were provocation agents, perhaps unwitting, but serving a covert agenda nonetheless.  Today, we know what it was.  “The man”was scared of rising black consciousness and the evolving wide acceptance of black power movements among whites.  That’s right, white kids were buying into black angst and identifying with it.  [expletive] groovy– right on, bro!  That scared the [expletive] out of the man.
What was the purpose of creating fictitious bad guys and terrorists we all could all rally around and hate?  I’ll attempt to explain it.  Basically, it is political warfare 101.
The man wanted to disrupt black unity movements, black aspirations, and the emerging civil rights movement…  Essentially, guys like George Jackson’s Soledad Brothers, Donald deFreeze, the Black Panthers, the BLA assholes served as “useful idiots,” to push forward a preplanned political agenda.  They were usually disposed of by equally stupid cops in spectacular shoot outs like the LAPD and SLA shootout.
So what about that foxy UCLA black professor who got mixed up with the BLA and Panther dudes, the feminist movement, and black power movements?  Maybe despite her Ph.D, professor Angela Davis was just another dumb fuck like me, and the cops out there chasing her bros around.  Fact is, we were COINTELPROED.  WTF?
And the man COINTELPROED a lot of chicks back in the day, when deep cover CIA operative Gloria Steinem and that porn rag devoted to female orgasms and male bashing Cosmopolitan got lots of chicks to burn their bras and to switch from wearing sexy French cut panties to guys’ jockey shorts (oh, no!).  Digressing…
A lot of guys bought into the political drama and social angst surrounding the feminist movement, too.  They dropped their balls and became wussies, another crop of useful idiots for the man. This is not to say that a lot of morons out there fucking around on their women, beating up their wives and girlfriends. getting constantly drunk, screwing the pooch, smoking dope, and acting badly toward women did not lend legitimacy to the feminist movement.  It sure did.  And then some.  However, it would have served us all much better if the women along with decent males had gotten baseball bats and had beaten the shit out of these guys.  Then we could have all gone back to being men and women, loving each other, instead of being enemies playing that “she said, he said bullshit” that drives up apart.  [expletive] man, he be real sly and ya gotta watch his moves.
I gotta say that we were stupid back then.  The “man” knew how to use the cops’ patriotism, willingness to serve, and our blind faith in the goodness of America, and its leaders as weapons against us and the American people.  That has all changed.  There are still plenty of stupid cops out there today, but the people have woken up and they are much wiser today than ever before.
In many cases, the people see right through all the bullshit and political theater.  So now, instead of bank robbing [expletive]s like Sherman and Ayers, we have Ebola, and Muslim head choppers playing these roles.  Same old shit and same old story.  Thing is, the scripts are stale, have been played too many times before, and our people are tired of being led down the primrose path by sly werewolves.  We got guard dog packs watching our backs and those dogs have sharp drooling fangs and they want payback.  Payback is a bitch.
I learned much of this to my horror from army CID operatives and from a former LAPD (LEIU) intelligence cop, who I networked with.  He jumped ship, told “the man” to fuck off and the last I know of, is still driving his tractor around in circles on his remote Alaska homestead.  I wasn’t far behind in following him to Alaska, when something else came up diverting me to another purpose.
See the links–
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The Lighthouse Report

THE CONSTANTINE REPORT No. 1 “Remote Viewing” at Stanford Research Institute or Illicit CIA Mind Control Experimentation?
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vacaville | In Search of Black Assassins

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Bill Ayers– Profile of Bill Ayers, the Weatherman (aka …

Bill Ayers led the Weathermen, a 1970s student group, to violent action in the quest to achieve a classless society and protest the Vietnam war.
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BLACK FEMINISM, THE CIA AND GLORIA STEINEM.

BLACK FEMINISM, THE CIA AND GLORIA STEINEM.
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COINTELPRO

COINTELPRO FBI Domestic Intelligence Activities COINTELPRO Revisited – Spying & Disruption
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I am NOT getting down on blacks…do not forget there are legions out there who love America, have served as good soldiers, as cops, as legislators, business men and scientists.  The Illumines, goddamn their rotten hearts want to use our black folks as racial weapons to ignite a devastating race war.
It’s not working very well, is it?  And it will never work, as long as whites and others reach across the divide to assure black folks that we will join with and protect them as they must with us.  That drives the man up the [expletive] wall.
Another thing, the media will have you believe is that blacks are all criminals or criminal wanna bes… You know MOFOS.  Well, there are lots of black criminals.  I put a lot of them in jail and had it out with some of them.   However, there are even more decent black folks then black criminals.  And there are even more white criminals than blacks.  Black criminals just stand out more because they are black, is all.
So, eff the media.  What we need to do is to reach out to our black bros and sisters.  We have much more in common than we realize.  Same goes for decent Muslims who believe in America.  Islam is not my religion, but Muslims have a fundamental right to worship as they please under the First Amendment and the Constitution and that is what is really at stake here.
Don’t know about you folks, but I am sick and tired of being fooled and had by the man.
Quintus Dias

Reply by Cyrellys on October 12 of 2014.
In regards to your story this recent account piece from one of the listeners at Quayle’s Alerts seems apropos to note:

Islamic loyalty in US Military & Russian troops.You must understand the nature of this threat especially, to those who serve along side of those whose job will be to kill you when ‘it happens’I was traveling through the southeast for my business this past wk. I stopped overnight in Johnson City TN before I headed to Virginia. I met some business partners of mine to discuss growth & numbers at a restaurant/bar. Granted our conversation inevitably moved towards the realities of our market place & current economic state of the nation & the world. In the midst of this conversation, a strong, early 30’s black man approaches me & asks me if I’m in the military(he was wearing his dogs tags) I said no but I come from a military family. He then asked what I know. I responded with what do you mean? He then began to aggressive. He pulls out his military ID & says we can’t talk at the table come outside. (I come from a military family & have been around some very influential people in my time & you &I both know what’s coming)

When we got outside his first question to me was are you Russian?! I’m not I said no. Than he kept saying don’t lie to me! You look just like them! You know more than you’re saying!

After i shared with him what I know about money, powers at be, & the times we live in he than asks “who’s side are you on?” I’m an American, I know this country is toast but I’ll stand by my fellow Americans. He then asked again who’s side are you on? I had to ask what do you mean? He then lifts his sleeve & shows his tattoo on his arm, which is a text/quote out of the Quran.. He then looks at me & says plainly, ‘I will not shoot an American citizen, until the EVENTS. If we see each other again when this takes place and I know which side you are on. (I’m a Christian!) I asked why did it matter if I’m Russian? He said ‘they know, & we (radical Muslims) know it’s soon’, we talk. (I also know there’s a large population of Russians in the Smokey Mountain areas & Appalachian/BlueRidge) 

I’d appreciate your insight on this seeing that there is an American Citizen in our military who’s loyalty is ultimately to Islam & apparently they “talk” with the UN Russian troops “waiting” here.

Whatever’s coming is big, & it’s coming soon. CHRIS

Oct 10, 2014



Reply from Bob on October 12 of 2014 via email. 

QD,  I sure am glad that you are on the same page as I on the racial issues!  I have been telling black people for several years now that this entire racial strife is orchestrated by government/illumines/ et. al. to implement their “divide and conquer” game plan of enslavement on all of us, black and white and you can throw the Hispanics into this scam with us !  One of the founders of the NAACP was Jewish Bankster Jacob Schiff, a white man who wanted to divide the races so we couldn’t gang up on the evil banksters and throw them out of the country.
During my last two years of trying to get the Constitution Party moving forward in New Mexico I have spoken to many black Americans trying to explain how we need to join hands (forces?) and convince both of our races that we all are Americans and we are being made fools of ourselves by buying into the racial divide !  The Black people in this country are not AFRICANS !  They are AMERICANS !  Abraham Lincoln tried to convince the black Americans to return to Africa, but most refused because they were born and raised right here in America, and most had been here for many generations.  They would have been in a very strange land (to them) if they had gone to Africa in the 19th century, and more so if they go now !  i.e.  We need to join together and win back our freedom from the global bankster overlords who THINK they own us and want eventually to eliminate us !
What disappoints me today, is that the black people I spoke to seemed to agree with me, but none have contacted me to move forward and bring our two peoples together.  They did appear to be very surprised to hear that message coming from an old white man.  I told them that it may be more difficult for me to convince the white people than it would for me to get the support of the blacks.  Our white people are so brainwashed, but I truly believe that it is our only hope of winning freedom for all of us.  Real education needs to be free of government interference and open to total local control.  Our youth must be educated to the truth and leave the social engineering to the dustbins of history forever!
–Bob ———–
New Mexico

Reply from PB on October 13 of 2014 via email.  I have a short story to tell that I hope give at least a little bit of insight into today’s condition.
When I was a young teenager in the mid 1980’s I attended church with my family at a very active and outreaching church. almost every week we had someone from around the nation or world come in a present something different that would either be very uplifting, heavily warning, or strongly informative.
One Sunday evening a very well dressed black man with jeri curls and a slight islander accent told the church about a subversive movement going on in the seminary schools but especially those of the black organizations. He said they are being literally invaded by islamic men who are not seeking to change themsleves but instead seeking to subvert and change the Christian church. He said they (the “black” church) has been targeted and many ministers in the churches are already (in the 1980s) causing problems. It seemed that NO ONE listened.
I can go on with examples like BOBO calling himself a Christian and that minister “Wright” calling himself a Christian when we know better.  However I just wanted to lay down the idea this has been going on for at least 35 years and those PTBs are definitely generational in their approach.  Christians must stop avoiding generational thinking.