Judge Andrew Napolitano

Judge Andrew Napolitano

Gazillions

by Judge Andrew Napolitano on Thursday, August 9, 2012

Gazillions. That’s the number of times the federal government has spied on Americans since 9/11 through the use of drones, legal search warrants, illegal search warrants, federal agent-written search warrants and just plain government spying. This is according to Sen. Rand Paul, R-Ky., who, when he asked the government to tell him what it was doing to violate our privacy, was given a classified briefing. The senator — one of just a few in the U.S. Senate who believes that the Constitution means what it says — was required by federal law to agree not to reveal what spies and bureaucrats told him during the briefing.

The rules for classified briefings of members of Congress on areas of government behavior that the government wants to keep from its employers — the American people — are a real Catch-22. Those rules allow representatives and senators to interrogate government officials about government behavior that they are afraid to reveal, and they require those officials to answer honestly and completely. But the rules keep the interrogations secret, and they expressly prohibit members of Congress from telling anyone what they have learned.

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The Rule of Law

by Judge Andrew Napolitano on Thursday, July 19, 2012

The greatest distinguishing factor between countries in which there is some freedom and those where authoritarian governments manage personal behavior is the Rule of Law. The idea that the very laws that the government is charged with enforcing could restrain the government itself is uniquely Western and was accepted with near unanimity at the time of the creation of the American Republic. Without that concept underlying the exercise of governmental power, there is little hope for freedom.

The Rule of Law is a three-legged stool on which freedom sits. The first leg requires that all laws be enacted in advance of the behavior they seek to regulate and be crafted and promulgated in public by a legitimate authority. The goal of all laws must be the preservation of individual freedom. A law is not legitimate if it is written by an evil genius in secret or if it punishes behavior that was lawful when the behavior took place or if its goal is to solidify the strength of those in power. It also is not legitimate if it is written by the president instead of Congress.

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We Are at a Turning Point

by Judge Andrew Napolitano on Thursday, July 12, 2012

Presently in America, nearly half of all households receive either a salary or substantial benefits from the government. Presently in America, nearly half of all adults pay no federal income taxes. Presently in America, the half that pay no income taxes receive the bulk of their income courtesy of the government, but ultimately from the half that do. This money is extracted involuntarily from the paying half by a permanent bureaucracy that extracts and gives away more each year no matter who is running the government. The recipients of these transfer payments rely upon them for subsistence, so they have a vested financial interest in sending to Washington those who will continue to take your money and give it to them.

It is no wonder that we are now saddled with the micromanagement of health care by the same bureaucratic mindset that mismanages the Post Office and everything else the federal government runs. It should not be surprising to know that presently in America, half of the people actually want the government to take care of their needs. The same was the case under Communist regimes, but here those folks vote.

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A Vast New Federal Power

by Judge Andrew Napolitano on Tuesday, July 3, 2012

If you drive a car, I’ll tax the street,

If you try to sit, I’ll tax your seat.

If you get too cold, I’ll tax the heat,

If you take a walk, I’ll tax your feet.

— The Beatles in “The Taxman”

Of the 17 lawyers who have served as chief justice of the United States, John Marshall — the fourth chief justice — has come to be known as the “Great Chief Justice.” The folks who have given him that title are the progressives who have largely written the history we are taught in government schools. They revere him because he is the intellectual progenitor of federal power.

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Restraining Arizona, Unleashing the President

by Judge Andrew Napolitano on Thursday, June 28, 2012

When the Obama administration decided that it had no interest in preventing the movement of undocumented aliens from Mexico into the southwest United States, the State of Arizona decided to take matters into its own hands. Based on a novel theory of constitutional law, namely, that if a state is unhappy with the manner in which federal law is being enforced or not being enforced, it can step into the shoes of the feds and enforce federal law as it wishes the feds would, it enacted legislation to accomplish that.

The legislation created two conflicts that rose to the national stage. The first is whether any government may morally and legally interfere with freedom of association based on the birthplace of the person with whom one chooses to associate. The second is whether the states can enforce federal law in a manner different from that of the feds.

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Can the President Rewrite Federal Law?

by Judge Andrew Napolitano on Thursday, June 21, 2012

Here we go again. Is the Constitution merely a guideline to be consulted by those it purports to regulate, or is it really the supreme law of the land? If it is just a guideline, then it is meaningless, as it only will be followed by those in government when it is not an obstacle to their purposes. If it is the supreme law of the land, what do we do when one branch of government seizes power from another and the branch that had its power stolen does nothing about it?

Late last week, President Obama, fresh from a series of revelations that he kills whomever he pleases in foreign lands, that the U.S. military is actually fighting undeclared wars in Somalia and Yemen, and that the CIA is using cyber warfare — computers — to destabilize innocents in Iran, announced that he has rewritten a small portion of federal immigration law so as to accommodate the needs of young immigrants who came to the U.S. as children and remained here. By establishing new rules governing deportation, rules that Congress declined to enact, the president has usurped the power to write federal law from Congress and commandeered it for himself.

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Where Is The Outrage?

by Judge Andrew Napolitano on Thursday, June 7, 2012

For the past few weeks, I have been writing in this column about the government’s use of drones and challenging their constitutionality on Fox News Channel where I work. I once asked on air what Thomas Jefferson would have done if — had drones existed at the time — King George III had sent drones to peer inside the bedroom windows of Monticello. I suspect that Jefferson and his household would have trained their muskets on the drones and taken them down. I offer this historical anachronism as a hypothetical only, not as one who is urging the use of violence against the government.

Nevertheless, what Jeffersonians are among us today? When drones take pictures of us on our private property and in our homes, and the government uses the photos as it wishes, what will we do about it? Jefferson understood that when the government assaults our privacy and dignity, it is the moral equivalent of violence against us. The folks who hear about this, who either laugh or groan, cannot find it humorous or boring that their every move will be monitored and photographed by the government.

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The Secret Kill List

by Judge Andrew Napolitano on Thursday, May 31, 2012

The leader of the government regularly sits down with his senior generals and spies and advisers and reviews a list of the people they want him to authorize their agents to kill. They do this every Tuesday morning when the leader is in town. The leader once condemned any practice even close to this, but now relishes the killing because he has convinced himself that it is a sane and sterile way to keep his country safe and himself in power. The leader, who is running for re-election, even invited his campaign manager to join the group that decides whom to kill.

This is not from a work of fiction, and it is not describing a series of events in the Kremlin or Beijing or Pyongyang. It is a fair summary of a 6,000-word investigative report in The New York Times earlier this week about the White House of Barack Obama. Two Times journalists, Jo Becker and Scott Shane, painstakingly and chillingly reported that the former lecturer in constitutional law and liberal senator who railed against torture and Gitmo now weekly reviews a secret kill list, personally decides who should be killed and then dispatches killers all over the world — and some of his killers have killed Americans.

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What If We Have Only Memories of Freedom?

by Judge Andrew Napolitano on Thursday, May 24, 2012

What if Memorial Day reminds us of times when we had more freedom? What if freedom is dying right under our eyes? What if the memory of the past is more fulfilling than the reality of the present?

What if the federal government could write any law, regulate any behavior and tax any event, no matter what the Constitution authorized? What if the majority in Congress rejects the idea of limited government and views the Constitution as granting it blanket power to do whatever it can get away with? What if the constitutional prohibition on the government’s taking of life, liberty or property without due process of law is only for show and is not for real?

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Is There a Drone in Your Backyard?

by Judge Andrew Napolitano on Thursday, May 17, 2012

Earlier this week, the federal government announced that the Air Force might be dispatching drones to a backyard near you. The stated purpose of these spies in the sky is to assist local police to find missing persons or kidnap victims, or to chase bad guys.

If the drone operator sees you doing anything of interest (Is your fertilizer for the roses or to fuel a bomb? Is that Sudafed for your cold or your meth habit? Are you smoking in front of your kids?), the feds say they may take a picture of you and keep it. The feds predict that they will dispatch or authorize about 30,000 of these unmanned aerial vehicles across America in the next 10 years. Meanwhile, more than 300 local and state police departments are awaiting federal permission to use the drones they already have purchased — usually with federal stimulus funds.

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What Constitutes a Fair Trial?

by Judge Andrew Napolitano on Thursday, May 10, 2012

The trial of the alleged masterminds of 9/11, which began last week at the U.S. Naval Base in Guantanamo Bay, Cuba, will address some of the most profound issues of our era. Are natural rights truly inalienable, as Thomas Jefferson wrote in the Declaration of Independence, or can the government take them away from those it hates or fears? Does the Constitution protect the rights of all persons who come in contact with the government, or does it protect only certain Americans, as the government argues? Can the government deny a person due process by changing the rules retroactively, or is the Constitution’s guarantee of due process to all persons truly a guarantee?

These are all questions that the government does not want to answer. But it should know better, because by structuring the trial after the crime was committed and by establishing retroactive rules — which are prohibited by the Constitution — that have never before been used in any American civilian or military court, Congress has created and the Obama administration will conduct a trial that will resemble none in our history.

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The President’s Private War

by Judge Andrew Napolitano on Thursday, May 3, 2012

Did you know that the United States government is using drones to kill innocent people in Pakistan? Did you know that the Pakistani government has asked President Obama to stop it and he won’t? Did you know that Pakistan is a sovereign country that has nuclear weapons and is an American ally ?

Last week, the Obama administration not only acknowledged the use of the drones; it also revealed that it has plans to increase the frequency and ferocity of the attacks. White House counterterrorism adviser John O. Brennan argued that these attacks are “in full accordance with the law” and are not likely to be stopped anytime soon.

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Rick Perry Was Correct

by Judge Andrew Napolitano on Thursday, April 26, 2012

When Texas Gov. Rick Perry, then in the early stages of his short-lived quest for the Republican presidential nomination, referred to Social Security as “a Ponzi scheme,” he was excoriated by the press, left and right, and by his fellow Republicans, as well. Earlier this week, government actuaries revealed that Perry was correct.

That revelation, which was greeted with a ho-hum by the media, basically announced that by 2033, 21 years from now, the so-called Social Security trust fund will be empty. The only reason this was even announced is because we are approaching a presidential election campaign, and in response to Perry’s much-derided claim, the government’s actuaries, who originally told the Obama administration and the public that the fund would be solvent until 2036, re-examined their numbers and concluded that it will be in the red three years earlier than they thought.

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A Government of Waste

by Judge Andrew Napolitano on Thursday, April 19, 2012

What can we learn from allegations against a half-dozen supervisors in the Government Services Administration for wasting, and perhaps stealing, taxpayer dollars on foolishness in Las Vegas, and against a dozen Secret Service agents for dangerously procuring prostitutes in Cartagena, Colombia, while there to prepare for a visit by the president?

If the allegations are true — and they seem to be — the behavior of these government workers reflects a view of government hardly consistent with the idea of limited government and public trust. The United States is the only nation in history founded on the principle that people voluntarily gave up some personal freedom in order to form a central government of limited powers and for limited purposes. Those purposes, according to the Constitution, consist primarily of the maintenance of personal freedom, natural rights and property rights, civil liberties and commercial liberties.

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What If the Government Rejects the Constitution?

by Judge Andrew Napolitano on Thursday, April 12, 2012

What if the government never took the Constitution seriously? What if the same generation — in some cases the same human beings — that wrote in the First Amendment, “Congress shall make no law … abridging the freedom of speech,” also enacted the Alien and Sedition Acts, which made it a crime to criticize the government? What if the feds don’t regard the Constitution as the Supreme Law of the Land?

What if the government regards the Constitution as merely a guideline to be referred to from time to time, or a myth to be foisted upon the voters, but not as a historic delegation of power that lawfully limits the federal government? What if Congress knows that most of what it regulates puts it outside the confines of the Constitution, but it does whatever it can get away with? What if the feds don’t think that the Constitution was written to keep them off the people’s backs?

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Hope for the Dead

by Judge Andrew Napolitano on Thursday, April 5, 2012

What does freedom have to do with rising from the dead?

When America was in its infancy and struggling to find a culture and frustrated at governance from Great Britain, the word most frequently uttered in speeches and pamphlets and letters was not safety or taxes or peace; it was freedom.

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Can the Government Force You To Eat Broccoli?

by Judge Andrew Napolitano on Thursday, March 29, 2012

This week, the Supreme Court measured Obamacare to see whether it fits within the confines of the Constitution. The big picture is whether the Constitution limits the behavior of the federal government to the plain meaning and historical context of the Constitution, or whether clever lawyers and politicians can interpret language in the Constitution so as to justify whatever Congress wishes to do. Does the Constitution mean what it says? Does it limit the federal government to the powers it has delegated to Congress? Or is it a blank check for Congress to do whatever it can get away with?

One of those delegated powers is the power to regulate interstate commerce. The language in the Commerce Clause authorizes Congress “to regulate” commerce among the states. When James Madison wrote that phrase, he and the other Framers were animated by the startling lack of interstate commerce among the states under the Articles of Confederation. This was the period after the Revolution and before the Constitution when the merchants and bankers who financed the Revolution also controlled the state legislatures. They were both creditors, because they had lent money to the state governments to finance the war, and debtors, because they now controlled the machinery of state government that owed them money.

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Is the CIA in Your Kitchen?

by Judge Andrew Napolitano on Thursday, March 22, 2012

If this question had been asked by a fictional character in a spy thriller, it might intrigue you, but you wouldn’t imagine that it could be true in reality. If the Constitution means what it says, you wouldn’t even consider the plausibility of an affirmative answer. After all, the Fourth Amendment to the Constitution was written to prevent the government from violating on a whim or a hunch or a vendetta that uniquely American right: the right to be left alone.

Everyone wants, at some point in the day, at some places in the home, to be left alone. The colonists who fought the war of secession from Great Britain were no different. But that war and the wish to keep the government at bay had been heightened by the colonial experiences involved in the enforcement of the Stamp Act.

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Can the Secret Service Tell You To Shut Up?

by Judge Andrew Napolitano on Thursday, March 15, 2012

The First Amendment to the Constitution prohibits the government from infringing upon the freedom of speech, the freedom of association and the freedom to petition the government for a redress of grievances. Speech is language and other forms of expression; and association and petition connote physical presence in reasonable proximity to those of like mind and to government officials, so as to make your opinions known to them.

The Declaration of Independence recognizes all three freedoms as stemming from our humanity. So, what happens if you can speak freely, but the government officials at whom your speech is aimed refuse to hear you? And what happens if your right to associate and to petition the government is confined to areas where those of like mind and the government are not present? This is coming to a street corner near you.

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Can the President Kill You?

by Judge Andrew Napolitano on Thursday, March 8, 2012

Can the president kill an American simply because the person is dangerous and his arrest would be impractical? Can the president be judge, jury and executioner of an American in a foreign country because he believes that would keep America safe? Can Congress authorize the president to do this?

Earlier this week, U.S. Attorney General Eric Holder attempted to justify presidential killing in a speech at Northwestern University law school. In it, he recognized the requirement of the Fifth Amendment for due process. He argued that the president may substitute the traditionally understood due process — a public jury trial — with the president’s own novel version of it; that would be a secret deliberation about killing. Without mentioning the name of the American the president recently ordered killed, Holder suggested that the president’s careful consideration of the case of New Mexico-born Anwar al-Awlaki constituted a substituted form of due process.

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Spies in New Brunswick

by Judge Andrew Napolitano on Thursday, March 1, 2012

On June 2, 2009, a janitor in an office building in New Brunswick, N.J., noticed what he thought was terrorist-related literature and sophisticated surveillance equipment in an office he had been assigned to clean. He told his boss, who called the local police, who notified the FBI. Later in the day, the FBI and the New Brunswick police broke into the office and discovered five men busily operating the equipment. Four of the men were police officers from the New York City Police Department (NYPD), and the fifth was a CIA agent.

The conundrum faced by all of these public servants soon became apparent. Who should arrest whom?

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What If Democracy Is Bunk?

by Judge Andrew Napolitano on Thursday, February 23, 2012

What if you are only allowed to vote because it doesn’t make a difference? What if no matter how you vote, the elites get to have it their way? What if “one person, one vote” is just a fiction created by the government to induce your compliance? What if democracy is dangerous to personal freedom? What if democracy erodes the people’s understanding of natural rights and the foundations of government, and instead turns elections into beauty contests?

What if democracy allows the government to do anything it wants, as long as more people bother to show up at the voting booth to support it than to oppose it? What if the purpose of democracy is to convince people that they could prosper not through the creation of wealth but through theft from others? What if the only moral way to acquire wealth — aside from inheritance — is through voluntary economic activity? What if the government persuaded you that you could acquire wealth through political activity? What if economic activity included all the productive and peaceful things we do? What if political activity included all the parasitical and destructive things the government does?

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Time To Tame the Federal Beast

by Judge Andrew Napolitano on Thursday, February 16, 2012

When the federal government was created, those who risked their lives and their fortunes and their scared honors to secede from England were animated by recent events. The government did not come into existence in a vacuum. Rather, those who led the Revolutionary War joined those who fought and financed it to create a central government that would be constitutionally incapable of doing to Americans what King George III and Parliament did to the colonists.

The king abridged many personal freedoms, but among them, religion and the right to keep income were at the top of the list, along with the freedom of speech and the right to be left alone. The reason that religious rights and property rights so animated the Founders is simple: They had been aggressively assaulted by the British government, and most of it had to do with money.

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Do Catholics Have Too Many Babies?

by Judge Andrew Napolitano on Thursday, February 9, 2012

When we were colonists and fought a war against the king and Parliament so that we could secede from the British Empire and be independent of it, we also fought for the value of personal freedom. That is the idea that in matters of personal choice, the government should play no role. The king only cared about the colonists’ personal choices if he could control or tax them.

One of the taxes he imposed was to support the Church of England. The Church of England that the colonists’ tax dollars supported was, of course, in England; it was not here. So, among the hateful taxes that impelled the colonists to revolt was this tax to support the king’s church.

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What Is a Just War?

by Judge Andrew Napolitano on Thursday, February 2, 2012

When President Obama announced last April that he was sending the United States military to bomb Libya, he not only violated the United States Constitution, which he has taken an oath to uphold, but he also violated the moral principles of the just war. The Constitution permits only Congress to declare war and the president to initiate on his own only a truly defensive war. When the president takes an oath to uphold the Constitution, he also promises to uphold the treaties into which the U.S. has entered and the laws that have been written pursuant to those treaties.

St. Thomas Aquinas is the modern articulator of the idea that governments are required to follow the same moral principles as the rest of us. This is particularly so in the case of a government that claims its source of power is the consent of the governed. St. Thomas More once put it this way: “Some men say the earth is round and some say it is flat. If it is round, can the King’s command flatten it; and if it is flat, can Parliament make it round?”

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A Few Words About Abortion

by Judge Andrew Napolitano on Thursday, January 26, 2012

Last week marked the 39th anniversary of Roe vs. Wade, the U.S. Supreme Court decision that permitted abortions. Prior to that case, abortion was regulated by each state, and most of them prohibited it unless two physicians could certify that the baby growing in the mother’s womb would likely result in the death of the mother. Even the states that permitted abortions when the pregnancy was caused by rape or incest, an extremely rare occurrence, did not permit it after the sixth month of pregnancy.

Roe vs. Wade changed all that. It permits abortions in all 50 states during the first three months of pregnancy for any reason or for no reason. It permits abortions during the second three months of pregnancy for the health of the mother. “Health of the mother” can mean mental health; thus, most states have taken the liberal position that if a continued pregnancy would make the mom sad or challenge her psychologically, or if she has second thoughts about the pregnancy, the baby may be aborted.

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How Much Economic Freedom Do We Have in the United States?

by Judge Andrew Napolitano on Thursday, January 19, 2012

The root of economic freedom is the recognition of the right to own private property. That includes the right to utilize it unmolested, to dispose of it without anyone’s permission and to exclude anyone from it, even the government. Suffice it to say, no American president since the advent of the income tax and the Federal Reserve 100 years ago has fully accepted or meaningfully defended that right. The more the government extracts in taxes and the more it inflates the money supply, the more it rejects and assaults property rights.

Every president in the 20th century, even Ronald Reagan, signed legislation raising income taxes. The theory behind the income tax is that the government’s need for cash is so great, it can just take it from your employer after you earn it but before your employer pays you — before you even see the cash — and use it as it sees fit. This presumes that the federal government has a greater right to your income than you do. There really can be no rationale for income taxes without that belief.

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What If Elections Don’t Matter?

by Judge Andrew Napolitano on Thursday, January 12, 2012

What if Democrats and Republicans were two wings of the same bird of prey?

What if elections were actually useful tools of social control? What if they just provided the populace with meaningless participation in a process that validates an establishment that never meaningfully changes? What if that establishment doesn’t want and doesn’t have the consent of the governed? What if the two-party system was actually a mechanism used to limit so-called public opinion? What if there were more than two sides to every issue, but the two parties wanted to box you in to one of their corners?

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Big Government Cannot Pay Its Bills, Again

by Judge Andrew Napolitano on Thursday, January 5, 2012

Since Barack Obama became president on Jan. 20, 2009, the federal government has not had a budget. It did not have one for the first two years of his presidency, when Democrats controlled both houses of Congress, and it did not have one for 2011, when the Democrats controlled the Senate and the Republicans controlled the House.

The Senate — continuously under Democratic control during the entire Obama presidency — has not voted out and sent on to the House any annual budget since George W. Bush was president. The House sent a budget to the Senate a year ago, but the Senate rejected it and sent nothing back in return.

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The Case for Austerity

by Judge Andrew Napolitano on Thursday, December 29, 2011

Do you remember this summer’s debt debate debacle? It ended with the supercommittee, which ended in failure, which resulted in no cuts in government spending. Do you remember the summer before that, when tea party protesters came out in full force against Obamacare and members of Congress who were contemplating supporting it? Do you remember when the tea party movement made the Republicans the majority in the House and replaced a few prominent liberal Republicans in the Senate with small-government conservatives?

Where was all the raucous protest when those who were elected to Congress in 2010 on the promise of reining in spending so spectacularly and clearly failed to do it?

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New Ideas or Fidelity to Old Principles?

by Judge Andrew Napolitano on Thursday, December 22, 2011

If you’ve been watching cable television regularly, you’ve heard from many analysts who know Newt Gingrich personally. They either call him the smartest man in the room or they tell us Gingrich believes he’s the smartest man in the room. Gingrich has always been a government ideas man, and whenever he says something odd, out of the ordinary or otherwise eyebrow raising or provocative, it’s explained away as Newt being Newt. His ideas are, in fact, what get him in trouble.

When Gingrich called Palestinians an invented people, that wasn’t a Rick Perry moment. There is a long academic debate behind the Palestinian question. Yasser Arafat, after all, was born in Cairo as a poor Egyptian, but died in Paris as a wealthy, corrupt Palestinian leader. There was never an independent state of Palestine, and the people now known as Palestinians were known simply as Arabs before the creation of the State of Israel. None of this, of course, is relevant to U.S. foreign policy, because none of it is relevant to U.S. national security interests. It is only relevant to politics.

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The Government as Lawbreaker, Again

by Judge Andrew Napolitano on Thursday, December 15, 2011

Can Congress make legal something that is inherently wrong, and can Congress take a freedom that is a part of our humanity and make its exercise criminal?

If there were no First Amendment, would we still have the freedom of speech? The answer, like many in the law, depends on what values underlie the legal system. If the government is the source of our rights, then without the First Amendment’s guarantees of free speech, any government could legally punish you for saying words and expressing thoughts it hated or feared; and it could even silence you before you spoke.

On the other hand, if our rights come from our humanity and our humanity is a gift from God, then we would still enjoy the freedom of speech, whether it is insulated from government interference by the First Amendment or not. The wording of the First Amendment itself gives us a peek at what its authors thought. They wrote: “Congress shall make no law … abridging the freedom of speech.” It doesn’t say that Congress shall grant freedom of speech; rather, it prohibits Congress from interfering with it. And by referring to free speech as the freedom of speech, the drafters recognized that the freedom of speech already existed before the country that they were founding even came to be.

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