“Posthegemony and the Crisis of Constitutionalism in the United States”. Paper presented at “All’ombra del Leviatano: tra biopolitica e postegemonia”. (Universitá Roma Tre, May 2017). By Gerardo Muñoz.

In what follows, I will only have time to roughly sketch a couple of ideas of a larger project on “Constitutionalism and posthegemony”. The starting point driving this investigation forward is that we are currently living in the ruin of hegemony, understood as the orienting principle of modern political thought, as it pertains to the crisis of popular sovereignty for democratic legitimation. To the extent that legitimacy is integral to constitutional designs, I want to advance a populist posthegemonic model as one of the ways to think democratic reinvention. I must say here at the offset, that if the trending populist experiments around the globe teach us anything, it is that appealing to the notion of ‘hegemony’, in the wake of Ernesto Laclau’s theorization, is bound to be consistent with neoliberal and administrative machination, but also bound to a communitarian metapolitics [1]. Of course, Laclau’s theory of hegemony is already a theory that tries to come to term with the crisis of popular sovereignty as such, and it is a hegemony after the crisis of inter-state hegemony [2]. My thesis is that hegemony cannot do the work. An implicit premise that guides this reflection is that the rule of law is central to any discussion of the contemporary crisis of democracy. I think that if we are to move beyond liberalism’s impasse, we must do more than traverse the myth of political theology or reenact the critique of political economy. In other words, posthegemony needs to seriously challenge the current transformations of juridical rationalities and legal developments.

From these premises, it follows that constitutionalism has never been more pressing, albeit the skepticism of some scholars, and the systematic disregard for institutional thinking in critical and political theory today in the wake of the ‘political turn’ [3]. But I will return to this debate at the conclusion of my paper. As follows, the route of my exposition will be pretty straightforward, consisting of three precise movements: first, I want to draw attention to the internal crisis of legal legitimacy in the United States; secondly, I will move on to the external crisis of political legality focusing on the work of Krisis Kobach; and lastly, I will state the contours of my larger thesis on posthegemonic populism as an institutional design.

1. Crisis of Legitimacy in the America

There is a wide agreement that there is an ongoing crisis of American constitutionalism. The Terrorist attacks of 9/11, led to several transformative acts, such as the enactment of the Patriot Act, and the boundless statuary power of the Office of Legal Council (think the so-called “torture memos” written by John Yoo), which have severely brought to the attention of the general public the undermining of the separation of powers in conjunction with the menacing rise of the emergency securitarian state [4]. But for many constitutionalists, the effective executive power as a re-ordering of internal national security has been an expression and consequence of the rise of the Imperial Presidency. Although popularized by historian Arthur Schlesinger Jr. during the Nixon presidency in a book of the same title, the imperial presidency has been the central diagnosis of accounting for the rising threat within the constitutional republic [5]. Presidential illegitimacy is expressed today thoroughly in a set of concrete practices, such as executive orders, unilateral declarations of wars to non-existent entities (ISIS), or ‘rubber stamping’ by NSC lawyers. On the other hand, let us recall that Congress has become incapable of legislating for almost a decade now, which has led some, including the recent SC appointee, Neil Gorsuch, to argue that the courts is now the legislating site (Gorsuch 2005). Let me recall here what liberal constitutionalist Bruce Ackerman told me in an exchange I conducted with him at the beginning of the year: “With the new president, Donald J. Trump, what we are really going to see is if the Constitution will survive the next four years” (Muñoz 2017). The concern is not only coming from Yale Law School. Take, for instance, historian Timothy Snyder, who has made the case in On Tyranny (2017), that Trump’s populism is almost entirely paralleling the constitutional crisis of the Weimar Republic of the 1930s in his depreciation of truth and the rule of law.

Although these diagnoses have many sharp insights in them, it is also the case that they are instances of what Eric Posner and Adrian Vermeule have termed “tyranophobia”, which emphasizes the rise of presidentialism in a sort of vacuum (Posner & Vermeule 2009). The reality is that a potential rise of a tyrant in the American politico-legal context will be rare, if not almost entirely impossible. As a case in point, let us remember Trump’s early executive decision to bar certain nationalities from entering the US was immediately dismissed by lower courts. Or what is more, let’s recall the expedite way in which Trump redirected his anti-globalist views of foreign policy into a more global cohesive imperial strategy as suggested by the military cadres. In fact, Presidentialism is not the most threatening menace of the constitutional crisis, and I would like to suggest that there are two other internal tracks that are more worrisome, to the extent that they have legal and political effects. I call them internal, because they emerge from within the development of American law, putting legitimacy in dispute. One is a long duré transformation, and the second, a specific legal case, although both have fundamental implications for democracy.

Let me first start with the transformation. The crisis of American legitimacy has everything to do with the expansion of the administrative state, or the exceeding power of governmental agencies. Take, for instance, Columbia University Professor Philip Hamburger, who in his book Is Administrate Law Unlawful? (2014) argues that the juridical and executive delegations to Federal Agencies are unconstitutional under the principle of separation of powers and the illegality of a deferred delegation of power (undermining the common law delegate potestas non potesta delegari). When Steve Bannon says that one of the missions of the White House is to ‘deconstruct the administrative state’, he is actually popularizing the libertarian opinion against the administrative law’s deference and delegation powers allocated to bureaucracies. Although some (Mashaw 2012, Ernst 2014), have argued that the administrative state has been a long process of American legal tradition, its centrality has undertaken a more controversial tone after the watershed case Chevron vs. NRDC (1984), in which the Burger Court inaugurated the so called principle of ‘deference’. Simply, this means that whenever there is an ambiguous interpretation of a regulatory statue, the case is deferred to the agency for clarification. This does not mean that courts will always rule in favor of agencies; it just means that deference always takes place (agencies still win in about a 92% ratio, according to statistics compiled from 1983 to 2014). But the most important consequence is this: Courts since then have given administrative agencies a broad statutory discretion to enact several components at once: rationalize, interpret, allocate, and execute specific norms and facts under highly arbitrary contexts of decision-making within a ‘thin rationality’ framework.

From an abstract historical projection, the rise of the administrative state into all spheres of public regulation and everyday planning is an assault on the Jeffersonian tradition of democracy, which sought to lessen centralization of power among a large federalist arrangement. For good reasons, some theorists have called it “Tocqueville’s Nightmare”. If what Tocqueville admired in American Democracy was its communitarian and free association patchwork, the new ‘heart’ of law’s integrity in America since the New Deal rests on a bulky administrative state. However, from an internal perspective, the expansion of the administrative state is consistent with development of law’s rationalization to abandon the centrality of courts and judges. This is important, since it is difficult to name what is exactly illegitimate in terms of the law’s integrity. According to Adrian Vermeule (who follows Ronald Dworkin’s premise of Law’s Empire as integrity) the administrative state appears as the natural and rational process of abnegation. Vermeule’s thesis goes as such: “…law has abdicated its imperial pretension, and has done so for valid lawyerly reasons. But there is no real methodological puzzle here; good Dowkinians have to follow integrity where it leads…The trend of deference is not derived from any one judicial decision; it is a global feature of law in the administrate state, observable in many legal systems over time […] Law has decided that it best serves its own ends by lying more or less quietly under the throne” (Vermeule 18-22). It is important to note, however, that the triumph of the administrative state is, in some way, a shadow katechon or second degree Leviathan, at the moment of the disintegration of the popular sovereign state. It is as if the state had to compensate the crisis of democratic deliberation with a form of administrative machination. In the void of sovereignty, a new legitimacy is supplemented with an effective form of machination that widens its domains without fissures.

​Let us now consider the second case, which should make visible this problem in an even brighter light. In 2008, the non-profit group with strong ties to the Tea Party Movement, Citizens United released a documentary entitled Hillary: the documentary (2007), just a few days before the Democratic Primaries at the beginning of that year. I do not have time to comment the documentary, although it only takes a few seconds into the movie to perceive its apocalyptic overtones, conspiracy tropes, and ultra-nationalist rhetoric, to make spectators believe that Hillary Clinton would bring the Armageddon if elected. The documentary did not see its worldwide screen as scheduled, due to FEC (Federal Election Comission) regulation of funding sixty days before an election, which led to the filing of the case by C.U demanding that those regulations were unconstitutional restrictions in violation of the First Amendment (Moss 2017). The question that the Roberts Court had to decide was uniquely worrying: do corporations have 1st Amendment rights? And if so, could they be treated like “persons”, which would amount to an unlimited scrimmage for funding as a necessary condition for speech? In a highly contested opinion, which divided the court 5-4, Justice Kennedy decided in favor of C.U in these terms:

“By definition, an independent expenditure is political speech presented to the electorate that is not coordinate with a candidate. The fact that a corporation, or any other speaks is willing to spend money to try to persuade voters presuppose that they have the ultimate influence over the elected officials. This is inconsistent wit many suggestions that the electorate will refuse to take part in a democratic governance because of additional political speech made by a corporation or any other speak” (Post 63).

The opinion not only decided that corporations can influence elections, a precedent that was already in place in Buckley vs. Valeo (1976), but more effectively that there was no limitation on campaign expenditures, since corporations’ medium of public speech is money. It follows from this, of course, that to the extent that money is a medium that amplifies speech, politics, and democracy at large, benefits from the incremental influence of currency in the public. Regulations of financial capital, within this logic, discourage democratic exchange. Robert Post has made the case that the strict reading of the 1st Amendment in Kennedy’s opinion was utterly oblivious to the fact that it not only protests collective right to speech, but also the integrity of electoral campaigns. Corporations have rights of speech under the 1st A and the Commerce Clause, but speech presupposes that we freely speak and remain silent. Money, on the other hand, makes corporations each and every time obliged to speak as public speech.

Of course, legitimacy in a democratic republic rests upon the belief that political representation is responsive to your needs and concerns. When this fails, legitimacy enters a crisis, making democracy into pure administration. If Citizens United means anything it is that, analogous to the administrative state, money becomes an active general equivalent for democratic decision and deliberation. For instance, take a step back and think about how this case fundamentally erodes political parties’ structures (which I think we must stop and reflect how at a global scale we are witnessing the decline of political parties as another expression of the interregnum): between insider loyalists, and those in the shadow; between visible party constituents and members, and corporations and interest groups that support legislation for deregulation effects only (Gerken 2013). Through the principle of equivalence, politics becomes anti-politics as they draw systematically towards a well-established end, always on reserve and computed to bypass the administrative state [6].

That is why, one of the aftereffects of Citizens United’s decision is that it marks the end of political parties as legitimate actors, installing long shadows of players, corporations, and groups as actors of a new anti-democratic structure. This is the factual realization of what Roberto Esposito has called in his book Due: La macchina della teologia politica e il posto del pensiero (2013), the process of machination or ge-stell, which today expresses itself in what I have been calling the principle of general equivalence as the compensatory form of hegemonic domination (Moreiras 2017). In both cases, the administrative state and corporate speech, the People become a phantom sovereign in what is clearly an anti-democratic metastasis.

2. Kris Kobach and the activist legality

​When this occurs, politics and law conflate and become not very different from the police. In fact, one of the consequences of the fall of legitimacy is a crisis of legality, as it trends towards a politics of citizen policing. Take here, as an example, Kris Kobach, a Yale Law School graduate, and current Secretary of the State of Kansas. Who is Kris Kobach? To just draw a minimal profile of the figure: before Yale Law School, Kobach finished his dissertation under Samuel Huntington on the role of political participations of corporations during the apartheid in South Africa, and later in Oxford he completed a book about referendums in Switzerland [7]. He is a comprehensive actor that combines in his research interests on the one hand, populist plebiscitary mechanisms, and on the other, corporation flexibility in the state. In the United States, however, he is known for having drafted the Arizona Bill 1070, which required that state police made irregular arrests to undocumented immigrants wherever it thought there was ‘reasonable suspicion’ (Anderson & Smith 2015). Kobach appears in the context of constitutional crisis, as a representative of what I call, paraphrasing Judith Shklar, an activist legality of moral cruelty [8]. When liberal legitimacy crumbles into machination and administration, politics can emergence to uphold a hegemonic closure, and the effect can only be one of cruelty for those standing on the margins of the rule of law (i.e.: virtue of being citizens). This is very clear if one reads attentively a series of academic articles that Kobach published in 2008, all of them treating the problem of illegal immigration and offering radical solutions.

​In “Reinforcing the Rule: What States can do to stop illegal immigration” (2008), Kobach begins with the Freedmanian premise that a contemporary state cannot be a welfare state and have free migration at the same time. He immediately lays out a detailed set of provisions recommending how states and local authorities could tighten migratory restrictions in order to exert what he calls in another article “attrition through enforcement”: removing social protections, drivers licenses, and higher state education grants to illegal residents. Kobach writes these articles in the wake of the terrorist attacks of 2001, and in fact, he begins most of them considering illegal migrants and refugees always already as potential terrorists. Kobach’s implicit response to the crisis of democratic legitimacy hinges on three forms of reactionary legal-political tactics: first a fiscal premise, in which an immigrant is not considered a subject for the expansion of citizenship, but as a burden to taxpayers. Hence, the only possible solution is self-deportation as a more efficient solution than amnesty (Kobach 2008).

Secondly, he draws on a legal argument that asks the Federal State to become activist at local and state levels. This is a novel political transformation of in United States, since until the 1960s, Republicans and conservatives ideologues favored states rights, and this made sense during the decades of Jim Crow in the South as a way to ‘resist’ the national government anti-segregation laws passed in the 1950s in the Warren Court (Brown vs. BOE). But today, someone like Kobach emerges as a “Conservative Hamiltonian” who incites states to subordinate their federal sovereignty to the national government. In part, Kobach is implicitly responding to the unavoidable presence of the administrative state, recoiling to the national government vis-à-vis emergency statutes, in order to act politically in the face of bureaucratic neutralization. His dismissal of amnesty, for example, is predicated on a hatred for what he takes to be costly disputed management within bureaucracies. Thirdly, and perhaps more importantly, Kobach perceives citizenship as an assault on a fictive national identity, which is informed after Huntington’s last book Who Are We?: The Challenges to America’s National Identity (2005).

Forward to the present: Kobach heads Trump’s executive order to establish a Voter Freud Commission, which limits minorities voting access rights and imposes severe registration restrictions for specific electoral filtering under the veneer of anti-freud security. In the wake of Shelby County vs. Holder, which aggressively limited Article V of the Civil Rights Act of 1965, Kobach emerges as an archaic regression of a reactive populism. This is a new politics for and in hegemony while facing bureaucracy, in which cruelty becomes the principle for the logic of inclusion-exclusion mechanism in the polity. As the “People” disappear as a unifying political principle, the hegemonic phantasm of identity and police take the scene.

3. Posthegemonic populism in a constitutional regime

How do we move from the exhaustion of popular sovereignty, as we face the objective and unmovable administrative state and external reactive policing, as the Janus face of a dual hegemonic arrangement? To start, allow me to quote here Bruce Ackerman who asks a similar question in the last chapter “Betrayal?” of his We The People: Civil Rights Revolution (2013), in which he is lamenting decision of the Roberts Court to overturn Article V of the Civil Rights Acts that protects minority voting rights:

“If we hope to sustain the tradition of popular sovereignty into a new century, we cannot afford to cast these leaders as tired epigones living off the constitutional heritage left by the giants of an ever-receding past. We should be reflecting on their achievements – both in adopting New Deal modals to speak for the People and in moving beyond the Frist Reconstruction to establish new egalitarian principles for the modern age” (Ackerman 316)

Following this, Ackerman notes, however, that any hopes for an activist Supreme Court is exhausted, and there is no hope in the horizon that an activist Court will rise to the central scene once again. First all, because the judicial activism was perhaps an epochal reflection that we associate with the Warren Court. But the rise of such decisions was expressions of complex political defeats and contentions of an epoch, now long gone [9]. The administrative state has displaced Court’s hegemony to dynamically play a substantial role in assuming the task of thinking the present under the “living constitution”. This is an epochal transformation of the legal tradition in United States, and which could perhaps inform mirroring problems in Western democracies as we confront new rising Leviathans of equivalences, in which corporations can speak or become persons, and citizens deprived of their legal status become bare persons. I think the pressing question to ask is the following: can constitutionalism become a new form of legitimation amidst the crisis of legitimacy of democracy?

According to scholars such as Bruce Ackerman and Dieter Grimm, constitutionalism as a form of legitimation has been on the rise, since the end of the Second World War (Ackerman 2008 & Grimm 2014). It is worthwhile noting, for example, that Max Weber did not include constitutions or constitutionalism in his typology of legitimacy. Rather, Weber favored charismatic leadership in the spearheaded figure of the President, which can guarantee democracy in the face of factions and the Congress (Weber 1987). Today this is no longer so. The Weberian charismatic figure can rise today to legitimacy only on behalf of the administrative state as best possible case scenario, as Justice Elena Kagan makes the case for in her article “The Presidential Administration”.

If a new constitutionalism is predicated in old categories of the legacy of modern political thought, I do not think we could advance forward. This is why, for me, to the extent that constitutionalism is a project for democratic institutionalism it demands what I call a posthegemonic populism, slightly modifying, but carrying forward Alberto Moreiras’ important notion of marrano populism (Moreiras 2017). Against hegemonic charismatic leadership from above, and dispersed mechanistic administrative state, a posthegemonic populism as a regime of constitutionalism is the only guarantee of democratic reinvention in the post-popular sovereignty epoch.

By calling it a regime, I want to take a distance from the constitution as a firm mold to just restrain governmental power. There is no doubt that constitutions not only consolidate rules, but in a commanding way, allow governments to exist to enact mechanisms create order and authority. Let me turn here to Jeremy Waldron’s essay “Constitutionalism: a skeptical view”, where he proposes that we move from a constitutionalism of restrains to one that “empowers those who would otherwise be powerless, the ordinary people with in most polities are the subject, not the agents of political power” (Waldron 37).

I agree with Waldron’s turn from a constitution of counter-majoritarian restrains to one of singular empowerment, and I also accept his intuition that “popular sovereignty can be the source of nondemocratic government” (Waldron 37). I will take issue with Waldron’s stance to the extent that he continues to address popular sovereignty as just a concept: in a way, as if popular sovereignty is nothing but a term in dry ink on paper after the administrative state and the equivalence between corporations, money, and citizens. His constitutionalism is still one of a design for / of the “citizen”. That is why Waldron does not address the question of legitimacy or that of the administrative state. He can only favor a constitutionalism as a concept in the shadow of the People. Let me quote Waldron at length in the closing of his essay, where he takes a clear anti-populist position:

“…popular sovereignty is not always a stable position, even as an account of constitutional origins. In America, a great many constitutionalists are as comfortable talking about “the Framers” and their extraordinary virtue— which is a decidedly nonpopulist conception—as they are talking about popular sovereignty. They will scramble back to the rhetoric of popular sovereignty whenever they feel the need to give constitutional limits and restraints credentials that can stand up to those of the legislative enactments they are supposed to strike down. But their true view of constitutional origins reveals itself as a decidedly aristocratic conception” (Waldron 39).

Here I bracket the ‘originalist’ component of Waldron’s claim, and move on to what I see as the limitation of this position, which analogously allow us to press forward. It is of little interests if the Framers were believes in popular sovereignty (Ackerman), or defenders of Royalism (Nelson). What is important, is a living constitutionalism that can emergence in the wake of the end of popular sovereignty, against hegemonic positions; whether presidentialist, identitarian, or administrative. In all of these three tracks, the People have been erased from the scene. If we accept that populism is a latent expression of democratic deliberation at any given time, always oppositional to an elite, then the solution to Waldron’s skepticism is posthegemonic populism in a constitutional design.

Whereas I think that constitutionalism without posthegemony is blind in practice, I also think that posthegemony without constitutionalism is shortsighted in time. What constitutionalism provides to populism is a temporal register: a horizontal line to institutionalize demotic time against archaic forces of regression in the economic and political spheres. Posthegemonic populism faces the crisis of popular sovereignty and the equivalent machination of the citizen, as a relay for a transitional phase for a possible democratic reinvention. Posthegemony is, in this sense, the figure that allows for a democracy vis-à-vis populism without succumbing to telic and vertical form of hegemony.

How is this to be done practically, if praxis was, in fact, absent in Waldron’s idolatrous separation of powers unifying popular sovereignty? In this conjuncture I think that constitutionalism plays a temporal dimension of democratic legitimacy, and federalism a dynamic republicanist “living” form against hegemonic phantasies. First of all, because federalism is irreducible to sovereignty, which entails an always contingent and uncooperative dissenting nature (Amar 1987 & Gerken 2008). The are two scenarios where this is plays out in the present, and which I will to elaborate in forthcoming essay: 1. Sanctuary cities and legal defense clinics at state levels in United States, 2. the aftermath of errejonismo in Spain, where after Errejón lost to Iglesias in Vistalegre2, “transversality” is being assimilated in the political design of the autonomy of Murcia, in what is an evident tactic of ‘uncooperative federalism’ against Iglesias’ vertical unity. This does not mean that “transversality” is posthegemonic, and Errejón insistance on building a ‘Pueblo’ is a symptom of an impasse. What we are trying to push errejonismo in a post-hegemonic transversality, where hegemony is abandoned as a way for democratic breakthrough (Muñoz 2017).

Federalism is the practical space by which a posthegemonic populism can be concretely elaborated at an epochal of impasse, dominated by efforts of hegemonic machination of the administrative state, even its Presidentialist phase, and the vertical politization of identity. In this light, only a populism without hegemony can return democracy to a dignity that is infra-political in nature; where democracy is irreducible to the political. This amounts to a transformative turn towards a legitimacy that does requires neither hegemonies nor eschatological awaiting to cover up the void at the center of our epoch.

 

 

 
Notes

1. See here the pieces against hegemonic populism, by Villacañas (2017), Moreiras (2017), and Muñoz (2017) in the context of Podemos in Spain. This exchange took place during a workshop on Populism held at Princeton University, April 4, 2017.

2. I thank Peter Baker for a conversation on this precise point, and who has elaborated this in his essay “Politics of the Multitude”, also read in this conference.

3. Take, as an example, Giorgio Agamben in Il Misterio del male (2013) who argues that all institutions in the West are undergoing a crisis of legitimacy. However, in order to contest such illegitimacy, Agamben portrays Benedict XVI in an eschatological time that is “inherently political”. Agamben writes: “Powers and institutions are not legitimate today because they have fallen into illegality; rather the contrary is true, namely that illegality is so diffuse and generalized because the powers have lost all awareness of their legitimacy…a crisis that affects legitimacy cannot be resolved solely on the level of law”. But as a trade off for law, Agamben offers a metapolitics of salvation. But as Villacañas as shown (2016), legitimacy needs not hegemony or metapolitics. See my review “Illegitimacy? On Giorgio Agamben’s The Mystery of Evil” (2017). The discarding of institutions in political theory has being recently criticized by Jeremy Waldron (2016).

4. Bruce Ackerman. The Decline and Fall of the American Republic (2014), 87-116 pp.

5. Arthur Schlesinger Jr. The Imperial Presidency. New York: Houghton Mifflin, 1974.

6. Moreiras has argued that posthegemony opens up a destiny without calculation, undecidible: “Quizás la practica poshegemónica no es mas que compulsión de destino en la teoría: el intento poslibidinal de retorno a un estado previo…Su única compensación – pero también la sombra de su politicidad efectiva – es que, buscando la manera de producir su propia muerte, la pulsión poshegemónica lucha contra toda muerte impuesta, es decir, contra la invención libidinal del otro sujeto. También aquí el ethos es daimon”. 140 pp.

7. See, The referendum: direct democracy in Switzerland (1993), and Political capital: the motives, tactics, and goals of politicized businesses in South Africa (1990).

8. Judith Shklar (1984): “Moreover, society did not depend on personal virtue for its survival. A society of complete villains would be glued together just as well as ours, and would be no worse in general. Not morality, but physical need and laws, even the most ferocious, keep us together. After years of religious strife, Montaigne’s mind was a miniature civil war…But his jumble of political perceptions reflected not intellectual failure, but a refusal to accept either the comforts of political passivity or of Machiavelli’s platitudes”. 37 pp.

9. Laura Kalman has recalled how the epithet “activist court” emerged during the politized years of the LBJ Presidency and Abe Fortas. See her new The Long Reach of The Sixties: LBJ, Nixon, and The Making of the Contemporary Supreme Court (2017). 252-307 pp.

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One thought on ““Posthegemony and the Crisis of Constitutionalism in the United States”. Paper presented at “All’ombra del Leviatano: tra biopolitica e postegemonia”. (Universitá Roma Tre, May 2017). By Gerardo Muñoz.

  1. Pingback: The administrative state as second Leviathan. A response to Giacomo Marramao. By Gerardo Muñoz. | Infrapolitical Deconstruction

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