Thursday, November 04, 2010
Justices Scalia, Alito Square Off on Originalism
Supreme Court Justice Antonin Scalia is the nation’s most important conservative originalist, a long time champion of the view that the original intent of the framers binds the Justices, and it often falls to progressives to point out the pitfalls of a version of originalism that seeks to divine what James Madison would have done if faced with today’s unique technical challenges and constitutional questions. So, it’s a pleasure to see Justice Samuel Alito take Justice Scalia to task for his faulty originalism.
I suppose then that Alito thinks it would be okay if a state passed a law prohibiting the filming of Lord of the Flies.
So, Scalia's response of "I'm trying to ask what James Madison thought about violence" wasn't convincing? It was quite clear - Scalia didn't accept the notion of video games as somehow uniquely different from other forms of media, so the key issue for him was whether the original intent of the First Amendment covered violent speech or not.
Alito's remarks, to me, just seem like an attempt to score cheap rhetorical points. As JSL points out, Scalia did not accept Alito's implicit premise that there is a relevant difference between video game violence and other types of artistic portrayals of violence which the First Amendment does protect.
Alito appears to be implying that the interactivity of the medium should count in favor of more stringent regulation when he says "children act out" the violence. If the court decides in favor of government speech regulation, I hope it does not go in that direction and instead relies only on the fact that the regulation is aimed at minors.
From the originalist perspective, I doubt the framers would have envisioned the First Amendment as allowing Congress to regulate the content of revolutionary era make believe child's play on the basis of its violent and interactive nature.
It's really hard to argue for a relevant distinction between preventing kids from buying dirty magazines and preventing kids from buying violent video games, aside from Scalia's argument that we've traditionally worried a lot more about protecting kids from sex than from violence. But at that point you're just constitutionalizing cultural traditions rather than divining anything about the founders' intent.
Justice Scalia's sermon on originalism - intent version - is comparable to sputtering of Mt. Etna. Maybe, just maybe Justice Alito is finally growing up judicially. The 5-4 SCOTUS Heller and McDonald decisions on the Second Amendment PLUS its 5-4 decision on Citizens United and unlimited corporate spending without attribution to donors suggest that a "silent" 2010 bumper sticker was quite effective: 'BULLETS UBER BALLOTS!" What would Madison say? He said quite a bit, much of it not necessarily consistent. But Madison was only one of many in the process of writing and adopting the Constitution. And here's Scalia reverting to the long discounted Originalism 101: Intent. Full circle or circling the wagons? Maybe Alito - and not Justice Kennedy - is the swing vote.
The idea that Scalia is much of an originalist is hilarious. I suppose he might be the nation's "most important conservative originalist", but the "most important" and "conservative" parts of that description are carrying all the weight. The "originalist" part is very fair weather indeed, and he makes no secret of it.
Good originalists don't get nominated to the Supreme court, nor do they get confirmed, because both processes are controlled by politicians who have no desire to be limited to an originalist conception of what's constitutional.
That out of the way, what the other guys said: Scalia was not arguing that Madison had any opinion concerning video games. He was arguing that Madison had an opinion regarding censorship. Which seems a pretty firm assertion.
"Good originalists don't get nominated to the Supreme court, nor do they get confirmed, ,,,,"
Perhaps "good originalist" is oxymoronic. But Brett's not so subtle point seems to be that there are no "good originalists" on the Supreme Court. So whom do we look to to understand Brett's point of " ... an originalist conception of what's constitutional"? Oh, that elusive Holy Grail of Constitutional Interpretation!
And I wonder if Brett really can read Scalia's mind about Madison and censorship from the "oral text" of Scalia's comments.
It was the Founding generation that gave us the Alien and Sedition Acts, so I wouldn't get too glib in claiming that of course our wise forefathers were against censorship. Madison opposed censorship but he hardly spoke for everyone.
Brett, do you have an opinion on whether originalism prevents the government from restricting the sale of Playboy to minors?
Steve is on to something: Scalia often focuses on tradition as much as original understanding. Once we realize that he isn't pure as the driven snow ("good originalists" not appointed because "politicians" -- not the public mind you -- don't want them ... again I wonder if Brett has some Golden Age of Supreme Court justices or if the fact there never was one should tell us something about what the Framers expected), simplistic putdowns (as if one needs to be simplistic to criticize the guy) can be avoided.
I suppose Shaq's point is that no judicial philosophy exists apart from whatever representation it might have on the Supreme court. If somebody on the Court claims to be an originalist, (Even if they're quite explicit about not being consistent about it.) whatever they are defines originalism for the entire rest of the country.
Doesn't seem to be a very sensible point. Something like legal realism raised to the nth power, I guess.
"Brett, do you have an opinion on whether originalism prevents the government from restricting the sale of Playboy to minors?"
It sure as hell prevents the federal government from doing any such thing.
The First Amendment Speech/Press clauses surely permit any one to provide a definition of originalism, whether as a judicial philosophy or as a just plain layman's definition. If someone, especially a member of SCOTUS, a judge, a legal scholar, etc, claims to be an originalist, perhaps he/she should provide a definition. There have been many versions of originalism developed in the constitutional legal community, starting with original intent (I still hate Meeses to pieces), which has long been discounted, through who knows what version leads the parade today. It is at least implicit that Brett claims to be an originalist. But based upon his comments over the years at this Blog, he is quite subjective, whatever his version, either in the past or currently. Jack Balkin lays claim to being an originalist. There is a broad spectrum of originalists out there. Originalism may be in the eye of the beholder or perhaps those beholden to the past imperfect. Brett continues apoplectic of Wickard v. Filburn's commerce clause treatment (which he seems to share with Justice Thomas who is seeking - via his wife Ginny - an apology from you-know-whom).
I can appreciate that there can be and there exist judicial philosophies separate from those of current or past SCOTUS members. (I am strong for Hermeneutics.) But we have to deal with the SCOTUS we have, including 5-4 too often. I frequently refer to the Search for the Holy Grail of Constitutional Interpretation not only as a reminder of Monty Python (e.g., a sense of humor) but it may never be found or might not exist. But without the "Search," we might have less fun. So perhaps Brett can provide us with a laugh with his definition of originalism as well as the names of SCOTUS members of the past - and their decisions - in support. Or is Brett the only true originalist out there with all the rest out of step?
Oh, I forgot we were going to la-la land where there's no such thing as incorporation. Sorry I asked a stupid question.
"Jack Balkin lays claim to being an originalist."
To be as polite about it as I can, (This is his blog, after all.) I see Jack as attempting to render the meaning of the term "originalist" so vague as to destroy entirely it's utility for telling you something about a person's view of the Constitution.
"Oh, I forgot we were going to la-la land where there's no such thing as incorporation. Sorry I asked a stupid question."
Steve, what I meant is that, no matter WHAT you take the relevant meaning of the 1st amendment to be, the federal government lacks any enumerated power to regulate the sales of magazines to minors. Outside, of course, the District of Columbia, and some other federal properties.
I find it hard to see how a bright guy like Gans could make such a silly mistake. The obvious answer, as people have written above, is that Scalia doesn't think the framers would have authorized an exception to the First Amendment for horrifyingly violent speech, whatever the medium might be. And it's also hard for me to see that the interactivity of the medium could tip the balance between protected and unprotected speech. The idea that a slightly novel set of facts that couldn't have existed in 1789 takes that set of facts completely outside of an analysis that asks what the First Amendment was meant to mean is silly. And in fact, Gans is misreading Kyllo. Kyllo doesn't say, "the framers never thought about thermal imaging; that takes this case out of an originalist analysis." In Kyllo, Scalia reads the Fourth Amendment to have been intended to enact a general principle - no warrantless searches - that bans warrantless use of devices that put the user in a position to see things he couldn't see otherwise without searching the home.
Brett, the case is about state power to regulate violent video games, not federal power. Do you have an opinion about whether the Constitution prohibits states from regulating the sale of Playboy to minors?
Steve M makes a valid point:
"Brett, the case is about state power to regulate violent video games, not federal power. Do you have an opinion about whether the Constitution prohibits states from regulating the sale of Playboy to minors?"
Can we now expect Brett, originalist that he is, to invoke the Commerce Clause (despite his disgust with Wickard v. Filburn) as overriding state power in this matter?
By the Bybee (still not forgotten), for those interested in originalism beyond Brett's look back through the wrong end of the telescope, take a look at Larry Solum's "Legal Theory Lexicon: Originalism" posted at his Legal Theory Blog on 10/31/10.
"Can we now expect Brett, originalist that he is, to invoke the Commerce Clause (despite his disgust with Wickard v. Filburn) as overriding state power in this matter?"
My position is that, in so far as adults are concerned, states are precluded from censorship, PERIOD. The situation is more muddled where children are involved.
Brett's response of course is not based upon originalism of 1787-89; rather, the focus should be upon originalism of the 14th Amendment, which Kurt Lash and other legal historians have raised serious questions about as relating to incorporation.
Brett's position re: adults and censorship is quite clear. But he seems to have somewhat shifted gears where children are involved, describing it as "more muddled." This relates to the power of the state. But let's go back to 1789 where the Bill of Rights limited only the federal government. Since Playboy is distributed in interstate commerce, why couldn't the federal government get involved in this muddled area as well the states? Does the originalism of the 14th Amendment limit the originalism of the First Amendment?
Public service post:
"take a look at Larry Solum's "Legal Theory Lexicon: Originalism" posted at his Legal Theory Blog on 10/31/10."
Here's what Solum says of Balkin:
"The most recent development in this dynamic is Jack Balkin's attempt to reconcile originalism with living constitutionalism."
That's what I'm talking about: When you try to reconcile something with it's precise opposite, all you do in the end is strip it of all meaning. Words, after all, carry meaning only to the extent there are some things they DON'T mean...
"Since Playboy is distributed in interstate commerce, why couldn't the federal government get involved in this muddled area as well the states?"
Because, while the commerce clause might, (Leaving the 1st amendment aside, which I'm not inclined to do.) permit the federal government to bar interstate transport of Playboy, the end sale
isn't interstate commerce.
This 'contagion' theory of interstate commerce is just an excuse to permit Congress to regulate things which are not themselves interstate commerce.
Brett seems to ignore the many, many variations of originalism (excluding Jack's) included in Solum's Lexicon that suggest that originalism cannot be reconciled within itself. And we come full circle back to Brett's implicit position that there are no "good originalists" on the Court currently. Brett has chosen not to respond to my questions posed in the closing paragraph of my 2:55 PM comment. Perhaps the only good originalist is a dead originalist.
Shaq, originalists come in different flavors, but they're all flavors of the same thing.
People who intend a text to mean something, write it in the language of the day so that other people, reading it, will understand it to mean what they intended. So all real versions of originalism tend to converge, even if imperfectly.
The only thing non-originalists agree about, necessarily, is that they don't like originalism.
Further, in response to your comment of 2:55, I'd note that "originalism" is a reaction to living constitutionalism. You don't NEED a philosophy of constitutional interpretation that says you interpret the document to mean what it says, until it becomes popular to interpret it as meaning what it DOESN'T say.
Which is to say that identifiable originalists didn't show up until the judiciary was already being deliberately staffed in a way which would preclude their ending up on the Court.
When Brett says:
"The only thing non-originalists agree about, necessarily, is that they don't like originalism."
he is still looking through the wrong end of the telescope. Many of us don't like what Brett and others pass off as originalism - or legal history. The practice of originalism has been demonstrated to be flawed, resulting in a Howard Johnson flavor-board. Originalists are as subjective as libertarians. Originalism seems to be a recent invention - I still hate Meeses to pieces - that seems to be evolving, like the dreaded living constitutionalism that Brett says it responds to.
Brett fails to respond to my 2:55 PM comment. He seems to be suggesting that even prior to the recent showing of "identifiable originalists" SCOTUS lacked "good originalists," that accordingly SCOTUS has been a failure from its beginning in interpreting the Constitution. If originalists are so smart, why can't they agree on just plain vanilla originalism ?
Look, I just DID respond. Maybe you drafted your comment before mine?
My point is simply that originalism, as a distinct philosophy of constitutional interpretation, is a reaction to living constitutionalism. You don't need a theory that says, "It means what it originally meant!", until you've got one saying that it DOESN'T mean what it originally meant. Which is pretty much all 'living' constitutionalism amounts to, the various flavors of THAT theory agreeing on only that one thing: That the Constitution's meaning changes without amendments.
A theory created to justify bypassing Article V, because the political class wanted changes in the Constitution they didn't think they could get ratified.
So, prior to living constitutionalism, there was no identifiable theory of originalism, because one wasn't needed. Nobody was, at that time, defending the proposition originalism exists to deny.
But, after living constitutionalism, originalists of any degree of consistency could not get on the Court, because the political class IS in charge of who gets on the court, and they wouldn't have created living constitutionalism if they'd wanted Justices who'd continue interpreting the damned Constitution to mean what it had meant all along.
So, yes, there are no originalists worthy of the name on the Court, and never really have been.
You do, of course, have people on the Court who CLAIM to be originalists. This is because, much to the disgust of the legal community, originalism and judicial legitimacy are pretty tightly linked in the public mind. Postmodernism never having won over the general public, who find words too useful for communicating meaning to entertain it.
The result is that, in cases like Heller, (With high public salience.) everybody on both sides on the Court feels the need to pretend to be looking for the original meaning, even though NEITHER side is engaged in honest originalist analysis.
Must bug the hell out of people who are proud to be living constitutionalists...
No, there are no good originalists on the Court, and can never be until we have justices appointed by a President who doesn't want any more power than an originalist reading of the Constitution would give him.
My comment took into consideration Brett's lame attempt at a response. Brett now tells us:
"So, prior to living constitutionalism, there was no identifiable theory of originalism, because one wasn't needed. Nobody was, at that time, defending the proposition originalism exists to deny."
Perhaps Brett can provide us with a chronology - and name names - of when "living constitutionalism" came into existence. Was it at the very beginning, including C.J. Marshall? If not, was there any " ... distinct philosophy of constitutional interpretation ... " before that that can be identified - with names named? Perhaps the Constitution had embedded in it originally interpretive DNA for evolving to address unanticipated events, of which there have been many over the 200+ years since 1787. What makes Ed Meese and those reacting to his Pied Piper role in more recent years so much wiser than those in times closer to originalism dates?
It's my understanding that Madison enjoyed Pac Man but was somewhat disturbed by Leisure Suit Larry just before his death.
Brett, there is no such thing as "originalism". It's nothing but a scam to try to convince people that your view of the Constitution is more valid than the views held by others.
The NYTimes Book Review yesterday (11/7/10) includes Adam Cohen's review of Noah Feldman's "Scorpions - The Battles and Triumps of FDR's Great Supreme Court Justices" that focuses upon Felix Frankfurter, Robert Jackson, Hugo Black and William O. Douglas, all of whom were around when Brown v. Board of Education came down (UNANIMOUSLY) in 1954. The review includes this:
"Black was an originalist, insisting the Constitution be given its original meaning, based on a close reading of the text. Today, originalism is generally considered a conservative doctrine, freezing the Constitution in an earlier time. Black, however, was attempting to free it from decades of conservative precedents by going back to first principles."
This was well before Ed Meese came along with "original intent" in the early 1980s in an effort to undermine not only the Warren Court but also the New Deal. Meese was obviously NOT interested in freeing the Constitution for the same reasons as Black.
Bartbuster makes the point that originalism is in the eye of the beholder. Compare Black and Meese as originalists. But Bartbuster puts it too mildly. I prefer Mitchell Berman's "Originalism is Bunk" (available via SSRN). So Brett can bunker-down with Justice Thomas back in 1787-89 holding dead hands that would have stifled commerce that thrived as America grew.
"So Brett can bunker-down with Justice Thomas back in 1787-89 holding dead hands that would have stifled commerce that thrived as America grew."
How could originalism 'stifle commerce'? Presumably, every change that's been accomplished by simply interpreting the Constitution differently, could have been done by amending it. To assume otherwise, after all, is to concede that the 'changes' did NOT have popular support.
The only constitutional changes originalism could prevent are unpopular constitutional changes.
But, of course, the point of living constitutionalism isn't to enable the Constitution to change. We've got Article V for that. It's to enable the Constitution to be changed in ways that don't have enough support for ratification.
Brett, this is just too silly:
"To assume otherwise, after all, is to concede that the 'changes' did NOT have popular support."
Go back in time to these so-called "changes" to see if they had support. Were they challenged? Names, dates, places, please. America grew by means of commerce - not what you and Clarence would have understood while holding hands but by actual people who did things to grow America's economy beyond agriculture.
Consider the steps in the amendment process which are far from simple. How many amendments of the Commerce Clause, for example, would have been necessary - per Brett/Clarence hand-holding - to get us to the point of our economy today? Brett/Clarence hand-holding would take us back to the economic dark ages. Is there popular support to take us back to those days? Let's hear a round of "How'ye Gonna Keep 'Em Down on the Farm .... "
I see Brett and Shag in a re-release of "I'm Not Rappaport," with Shag probably in the Walter Matthau role. It's getting a bit chilly around here to sit on park benches though.
Justice Black does suggest the flexibility of 'originalism.' Justice Harlan, his friend if not compatriot jurisprudential in various cases, noted as much when Black tried to explain that it's perfectly obvious that "one person, one vote" is totally originalist. Then, Black dissented when a poll tax was deemed a violation of Equal Protection.
The fact that the Constitution has provisions that are open-ended and by nature can have specific meanings that change over time was a principle held by many from the start. Madison in fact noted in the Federalist Papers that it would take experience to actually give specific meaning to the words, meanings that might not be totally clear at the time.
I'm not really too enthusiastic about Prof. Balkin's attempt to label his view "originalist," since the word has a certain cachet and he won't convince the people who don't want to be convinced. I see his point, that his view does not go against what many Framers wished to do.
But, Brett's replies are telling: he isn't really convincing anyone else. Balkin should just focus on arguing his p.o.v. and avoiding the labels. This is made easier by the fact that he talks to himself around here.
Joe, I would have preferred "The Odd Couple" in Walter Matthau's role with Brett as Felix Unger.
By the Bybee (judge not less ... !), I received in the mail just a short time ago the Summer 2010 issue of Constitutional Commentary and noted an article "Our Boggling Constitution; or, Taking Text Really, Really Seriously," by Anonymous who's footnote includes:
"The author is a constitutional law expert at a top American law school. This may not narrow things down much, since every law school calls itself a top law school and every law professor considers himself or herself a constitutional law expert. If it helps, the author did not graduate from Yale Law School, which brings the suspected number of suspected authors down to the single digits. Of course, if my name does get out, let me hasten to say that any offense to any authors cited herein, living or dead - especially living! - is strictly unintended."
The note goes on, but I have to stop laughing. I hope I don't drip too much of my dinner on the article as I read it. If Felix - I mean Brett - decides to read it, i prescribe he have Prilosec OTC at the handy, as well as napkins..
The play I referenced concerns two older guys arguing a lot. The Odd Couple is less fitting for this format. Brett doesn't quite seem the Felix type.
But Felix is an uptight dude, like one suffering from "Wick-burn."
By the Bybee (@$#%&*!), I read Anonymous' article and the footnotes are not to be ignored. For example, the final footnote 89: "See Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2002). Not having read it, I am unaware of whether Balkin's book actually relates to constitutional interpretation, but no piece on tendentious theories of constitutional interpretation would be complete without mentioning Balkin again."
While Anonymous' premise utilizes the game Boggle, perhaps I can come up with Legal Mumbo Jumble as an alternative.
"If Felix - I mean Brett - decides to read it, i prescribe he have Prilosec OTC at the handy, as well as napkins.."
No problemo; Ever since the chemo, I've been taking it every day. Did you know you can get a hiatal hernia from excessively vigorous gagging? Came as a surprise to me, too...
Seriously, though, as living constitutionalists go, Jack is far from the worst. If he'd just lay off this, "I'm an originalist! No, really!" shtick, I wouldn't have much to complain about. There would be a lot less eye rolling when he was in the room, too.
But, as I've remarked before, words retain meaning only insofar as there are things they DON'T mean, and if "originalism" is going to be taken to include Balkin's views, the term will be rendered so broad as to be useless.
Contra Balkin, there damned well IS a contradiction between originalism and living constitutionalism. The two are diametrical opposites, defined by their approach to the question of how the meaning of the constitution changes.
Originalism says, "By amendment". Living constitutionalism says, "Other ways, too."
It's a normative question on the level of, "Can you only withdraw money from the bank by making a formal withdrawal, or are approaches involving high explosives legitimate, too?"
"It's a normative question on the level of, 'Can you only withdraw money from the bank by making a formal withdrawal, or are approaches involving high explosives legitimate, too?'"
doesn't address the withdrawal of money from banks by their executives by other means, e.g., a "countrywide bank."
But seriously, with the varieties and vagaries of originalists as well as of living constitutionalists, it is difficult drawing lines in the sand as the legal tides roll in and out. Perhaps when there are no living legal lemmings left (or right), it may not make a difference.
By the Bybee (*%&#$@!), I hope Anonymous' "Our Boggling Constitution" becomes available via SSRN. The footnotes are priceless: "80. See HERMAN MELVILLE, MOBY DICK; OR THE WHALE 34 (Oxford University Press 2008) (1851). See also the general phenomenon of law professors achieving tenure and then complaining that tenure standards aren't strict enough."
Originalism says, "By amendment"
No, it says, "there might be people who are so stupid that this will convince them that my views are more valid than the views of people who oppose me"
A framer of the Alaskan Constitution was on Rachel Maddow recently to argue that a Balkin-like view of original principle originalism being open-ended in practice is a perfectly logical approach.
I think many framers, if we rev up the Delorean (25th anniversary of Back to the Future!), would agree.
An alternate theory to originalism and living constitutionalism is discussed in Francis J. Mootz III's "Ugly American Hermeneutics" available via SSRN:
recommended by Larry Solum at his Legal Theory Blog, even though the article challenges Solum's new originalism. Mootz takes Justice Scalia to task for his 5-4 Heller opinion and otherwise. Mootz also references Jack Balkin and Brian Tamanaha, as well as Francis Lieber of 150 years ago. Any other theories out there?
Anonymous' "Our Boggling Constitution: ... " on Justice Scalia and "his hapless clerk[s]" trolling through CT newspapers for Heller via footnote: "48. Conroy v. Aniskoff, 507 U.S. 511, 527 (1993) (Scalia, J., concurring). Which raises the question, is there such a thing as a hapful law clerk? And what's a hap, anyway?" (At page 664 of Summer 2010 issue of Constitutional Commentary.) Footnotes can keep us on our toes.
Man, that "Ugly American Hermeneutics" is hilarious, albeit in a dark way.
"They fail to understand that the communists are able to gain traction in Southeast
Asia because they don’t despise the local people and their culture.
In light of the actual history of genocide, and culturally sensitive pyramids of skulls the communists actually racked up in Southeast Asia, this is almost mind boggling for somebody to quote in a non-ironic mode.
The language that Brett quotes is contained in the very first paragraph of Mootz's "Ugly American Hermeneutics" and is presented by Brett out of context. The immediately preceding sentence is: "Most of the Americans are loud, arrogant, ignorant, racist and cloistered." These are the "They" of Brett's quote. I don't know if Brett read the entirety of Mootz's article or Lehrer & Burdick's novel "The Ugly American but the balance of the first paragraph puts Mootz's approach in context with the ugly American of the novel who " ... is a humble and diligent worker who is accomplishing more than all the tuxedoed charge d'affaires [the "Theys"] combined." [The first sentence provides a tie-in to President George W. Bush concerning the epithet "ugly American."]
By the Bybee (@&$%#*). might Gerard Magliocca open to comments his 11/10/10 post "The Impossibility of Constitutional Theory" to permit Brett to vent as he continues to suffer with "Wick-Burn."
Justice Scalia proved that he is an unfaithful originalist when he embraced Wickard v. Filburn to support the notion that the commerce clause is legitimately implicated by the California medical marijuana laws. Nobody with any understanding of what those states rights agrarians felt about the limitations on power being given to the central government would believe that they meant by "commerce" that the central government could regulate the wheat a person is growing in his own backyard for his own consumption. Scalia proved himself to be a phony originalist by embracking Wickard.
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