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Archive for the ‘States Rights’ Category


What we really need to know about nullification can be found in two places.  Many naysayers, who think they know, simply don’t know about nullification.  I am a proponent of state nullification of federal laws, rules, regulation, and executive orders when these exceed the federal government empowerment found in our Constitution.  You may think that I am a crack pot.  However, I have two allies in the nullification fight – Messrs Jefferson and Madison, the two chaps who are the principal architects of the Declaration of Independence and the Constitution of the United States.

Both these men have written on nullification and proposed it as far back as 1798.  Nullification was proposed for the Kentucky and Virginia state governments, and passed by both to refuse to honor two federal laws – the Alien and Sedition Acts at the time.

The first appearance of the right to nullify occurred in 1798, and the two collaborators in the Resolution of ’98 were Thomas Jefferson and James Madison. This duo should bring gravitas to the argument. Madison wrote of the right to nullify in the Virginia Resolution of 1798, wherein his document was adopted by the Virginia General Assembly and agreed to by the Virginia Senate in that same year. These were a nullification of the Alien and Sedition Acts passed by Congress and signed into law by President John Adams.

Jefferson also very eloquently and clearly wrote of the right of a state to nullify in the Kentucky Resolution of 1798, where-in he cited Article I, Section 8’s enumerated powers and the tenth amendment. This collaboration, but mostly Jefferson resolution was adopted by the Kentucky legislature in the same year.

Nullification means that any state legislature can declare an act, regulation, or a law of the federal government not supported by the powers afforded the federal government, to be unconstitutional and nullified under the powers granted the states in the tenth amendment – “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

This has been tried, but is not directly found in the Constitution. Nullification, that is not “constitutionalized” would be a sticky event. There is precedent provided by and arguments for nullification from the two rather influential and important founders mentioned above.  These two men were the quintessential constitutional scholars.

Nullification is a solution! These two very key founders were in favor of nullification. James Madison was a principal architect of the Constitution and the father of the Bill of Rights. He knew and understood better than any human on the planet, the intended relationship between a state, the states, and the federal government? Yes, Madison did late in life indicate that he did not intend for nullification, but his reasoning and words of the Resolution of ‘98 and Jefferson’s nullification argument can be used to prove that something nullification-like does fall to the states.

Nullification was also authored during the War of 1812 and with the Embargo of 1807 through 1809. Oddly enough, Jefferson was President for the Embargo; the federal government enacted an embargo of shipping, prohibiting all American ships from leaving American ports bound for any foreign port. This was to combat acts from Britain and France against America’s neutral rights on the seas. These are not the only examples of nullification in the history between the states and the federal government.

The following is taken from the website constitution.org and is the reprint of the text of resolution.  The website also states “The following resolution was adopted by the Virginia Senate on December 24, 1798, as a protest against the Alien and Sedition Acts passed by Congress. It was authored by James Madison, in collaboration with Thomas Jefferson, who authored a set of resolutions for Kentucky.”

THE VIRGINIA NULLIFICATION RESOLUTION

RESOLUTIONS AS ADOPTED BY BOTH HOUSES OF ASSEMBLY.

1. Resolved, That the General Assembly of Virginia doth unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State, against every aggression, either foreign or domestic, and that it will support the government of the United States in all measures warranted by the former.

2. That this Assembly most solemnly declares a warm attachment to the union of the States, to maintain which, it pledges all its powers; and that for this end it is its duty to watch over and oppose every infraction of those principles, which constitute the only basis of that union, because a faithful observance of them can alone secure its existence, and the public happiness.

3. That this Assembly doth explicitly and peremptorily declare that it views the powers of the Federal Government as resulting from the compact, to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no further valid than they are authorized by the grants enumerated in that compact, and that in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States, who are the parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.

4. That the General Assembly doth also express its deep regret that a spirit has in sundry instances been manifested by the Federal Government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which, having been copied from the very limited grant of powers in the former articles of confederation, were the less liable to be misconstrued), so as to destroy the meaning and effect of the particular enumeration, which necessarily explains and limits the general phrases, and so as to consolidate the States by degrees into one sovereignty, the obvious tendency and inevitable result of which would be to transform the present republican system of the United States into an absolute, or at best, a mixed monarchy.

5. That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the “alien and sedition acts,” passed at the last session of Congress, the first of which exercises a power nowhere delegated to the Federal Government; and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government, as well as the particular organization and positive provisions of the federal Constitution; and the other of which acts exercises in like manner a power not delegated by the Constitution, but on the contrary expressly and positively forbidden by one of the amendments thereto; a power which more than any other ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been juslly (justly) deemed the only effectual guardian of every other right.

6. That this State having by its convention which ratified the federal Constitution, expressly declared, “that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified by any authority of the United States,” and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, having with other States recommended an amendment for that purpose, which amendment was in due time annexed to the Constitution, it would mark a reproachful inconsistency and criminal degeneracy, if an indifference were now shown to the most palpable violation of one of the rights thus declared and secured, and to the establishment of a precedent which may be fatal to the other.

7. That the good people of this commonwealth having ever felt, and continuing to feel the most sincere affection to their brethren of the other States, the truest anxiety for establishing and perpetuating the union of all, and the most scrupulous fidelity to that Constitution which is the pledge of mutual friendship, and the instrument of mutual happiness, the General Assembly doth solemnly appeal to the like dispositions of the other States, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional, and that the necessary and proper measure will be taken by each, for co-operating with this State in maintaining unimpaired the authorities, rights, and liberties reserved to the States respectively, or to the people.

8. That the Governor be desired to transmit a copy of the foregoing resolutions to the executive authority of each of the other States, with a request that the same may be communicated to the legislature thereof. And that a copy be furnished to each of the senators and representatives representing this state in the Congress of the United States.

The Kentucky Resolution as provided by pinzler.com

The representatives of the good people of this commonwealth [of Kentucky], in General Assembly convened, have maturely considered the answers of sundry states in the Union, to [the ongoing debate and discussion of]… certain unconstitutional laws of Congress, commonly called the Alien and Sedition Laws, would be faithless, indeed, to themselves and to those they represent, were they silently to acquiesce in the principles and doctrines attempted to be maintained…. Our opinions of these alarming measures of the general government, together with our reasons for those opinions, were detailed with decency, and with temper and submitted to the discussion and judgment of our fellow-citizens throughout the Union…. Faithful to the true principles of the federal Union, unconscious of any designs to disturb the harmony of that Union, and anxious only to escape the fangs of despotism, the good people of this commonwealth are regardless of censure or calumniation. Lest, however, the silence of this commonwealth should be construed into an acquiescence in the doctrines and principles advanced… therefore,

Resolved, That this commonwealth considers the federal Union, upon the terms and for the purposes specified in… [the Constitution], conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact… and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact [the Constitution], by a total disregard to the special delegations of power therein contained, an annihilation of the state governments… will be the inevitable consequence: [That the construction of the Constitution argued for by many] state legislatures, that the general government is the exclusive judge of the extant of the powers delegated to it, stop not short of despotism ­ since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers: That the several states who formed that instrument [the Constitution] being sovereign and independent, have the unquestionable right to judge of the infraction; and, That a nullification of those sovereignties (sovereigntys), of all unauthorized acts done under the color of that instrument is the rightful remedy: That this commonwealth does, under the most deliberate reconsideration, declare, that the said Alien and Sedition Laws are, in their opinion, palpable violations of the said Constitution…. although this commonwealth, as a party to the federal compact, will bow to the laws of the Union, yet, it does at the same time declare, that it will not now, or ever hereafter, cease to oppose in a constitutional manner, every attempt at what quarter soever offered, to violate that compact…. This commonwealth does now enter against [the Alien and Sedition Acts] in solemn PROTEST.

So when you think about whether a state can nullify a federal law regulation, rule, or executive order, just consider that two men with more knowledge of the Constitution than the consummate knowledge of all the supreme Court justices since the first court combined, thought it was the right of every state to do so.  Challenge the premise and you are challenging two of the founders who brought us the Declaration of Independence and the U.S. Constitution with the Bill of Rights.  Remember, Madison wrote the constitution document and understood what was intended.

 

 

 

 

 

 

 

 

 

 

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Where will the progressives go next – tax free speech with a blog or a youtube tax or will they lay a gun/ammunition tax to control the right to bear arms?

Where will this now unlimited ability for the federal government to tax its citizens as a behavior modification tool end?  If you wish to control free speech, tax certain types of blogs or youtube submissions and views.

Chief Justice John Roberts may not yet fully understand the full extent of the demise of this free Republic he has unleashed, with this unchecked ability for the progressives to tax, not to raise revenue, but to make behavior modification and pick and choose who is modified.

Can we now have an Article V Constitutional Convention by the states to take back the progressives 100 year assault on this Republic?

 

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Twist and turns from an unpredictable Chief Justice of the supreme Court of the land – what does it mean?  While the health care mandate is struct down as unconstitutional under the commerce clause, it is Phoenix rising from the ashes as a tax, under the authority of Congress to lay and collect taxes.

What does this mean?  Simple, the Affordable Health Care Act survives mostly intact, with medicaid in jeopardy.  States cannot be punished for not expanding medicaid.  The real meaning of the Affordable Care Act decision is that the democrats in Congress and President Obama insisted, promised, that this new Act is not a tax, but when they went to court they argued that it was a tax – gross misrepresentation, again from this administration!

Since the President was adamant that this mandate was not a tax, repeatedly over time and in all forums, then argued in federal court and in the supreme Court that the mandate was justifed as a tax, will he pay the price for this massive deception?  Did he win a battle and perhaps lose the war?  The majority of americans are opposed to the mandate, and it appears that they are not opposed because it is a violation of the commerce clause, and that it really was a tax.  Americans just don’t want to be mandated by our federal government to do anything and don’t care by what means this was accomplished.

Has Chief Justice Roberts, as the swing jurist in this decision, created a mine field for President Obama?  Does the president have to explain his supreme misrepresentation to the american people?  In addition, the hidden decision here is that the federal government has been reined in under the commerce clause, limiting its commerce clause power, but unleashed as a taxing giant to use taxes to control the behavior of the citizens of this nation?

I am sure the founders never dreamed of a free nation under the thumb of the central government created by its states to make the states, as a whole, stronger, but with “limited” powers.  It appears that the federal government under the right to lay and collect taxes to influence the behavior of its citizens is now unchecked with unlimited powers – thank you, President Obama for the deception!

 

 

 

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The question is: Whether the States should have access to immediately challenge the federal government’s enacting of laws and rules that fall outside the limited powers provided to the federal government by the States under the Constitution?

It appears that the federal government created by and empowered by the States has now trumped the collective States in matters of redress as redress pertains to the federal government’s enumerated powers.  For a State or States to challenge the federal government’s violation of its enumerated powers, it or they must go to the lowest federal court and get in line just as you or I might have to do.  The States created the federal government and empowered it in a limited way for the good of the collective states, yet States are routinely treated by Congress and the supreme Court (supreme is lower case as it is in the Constitution) as having the same status as an individual citizen.  Below is an excerpt from the Constitution and one from subsequent federal law.

Our United States Constitution, Article III Section 2, states: “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction…”

What is original jurisdiction? “original jurisdiction n. the authority of a court to hold a trial, as distinguished from appellate jurisdiction to hear appeals from trial judgments.” (Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill.)

However, the United States Code (federal law) 28 USC § 1251 – Original jurisdiction;  states – see Cornell law:

(a)The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.

(b)The Supreme Court shall have original but not exclusive jurisdiction of: 

  1. All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
  2. All controversies between the United States and a State;
  3. All actions or proceedings by a State against the citizens of another State or against aliens.

Why should the States, as the founders of the federal government and having only relinquished some of their powers – providing limited powers to the progeny of the union of the states – be relegated to normal and customary standing in the court system, when matters between the States and the federal government generally deal with sweeping Constitutional  issues of an immediate nature?

The relegation of the States to second class status versus the Federal Government began in 1877, when the supreme Court ruled it did not have exclusive original jurisdiction over matters between the states and the federal government, but that inferior courts (known as tribunals in the Constitution) also had original jurisdiction.  Since the supreme Court has no Constitutional authority over inferior courts (tribunals), this decision should have been challenged at that time by Congress and the executive branch – it was left unchallenged.

Per the Constitution only Congress can establish and ordain inferior tribunals (courts).  At that time and through today, the supreme Court had and has no authority to establish or ordain inferior courts as having original jurisdiction.  Subsequently in the late 30’s and early 40’s Congress which ordains and establishes these inferior courts decided to put this into the U.S. Code.  Upon seeing this in the U.S. Code, the supreme Court created its rule 17 – original jurisdiction.  They then cited U.S. Code, which was based on a supreme Court ruling as the reasoning.  The country had now created a circular firing squad.

Now let’s talk about standing. 

Definition from Nolo’s Plain-English Law Dictionary: “The right to file a lawsuit or make a particular legal claim. Only a person or entity that has suffered actual injury has standing to seek redress in court. For example, an advocacy group may not file a lawsuit challenging the constitutionality of a statute on its own; there must be a plaintiff who has actually been harmed by the statute.”

While “standing” goes back to the Byzantine Empire and maybe prior, the use of standing in the United States has been defined by the supreme Court.

From the Cornell law website we find this excerpt (…At the Federal level, legal actions cannot be brought simply on the ground that an individual or group is displeased with a government action or law…).  Here is another case where the States cannot immediately seek redress against an action that is perceived to be outside the limited powers.  Instead, the States have to standby waiting for the federal action to actually cause damage which may affect millions of citizens and billions of dollars,  In fact, legal actions taken because the federal government is outside of the limited powers need to be allowed before the federal government’s actions become interwoven with the fabric of the nation. It is an exigent circumstance that only the States can rectify in the Court.  

Essentially, what the federal government, including the supreme Court, has done is find ways to preempt the States and preempt their limited powers.  Should not the States as the founders of the federal government in a limited way, be given “super-standing” in all matters related to the powers of the federal government under the Constitution, as the grantor’s of that power?  There is precedent that Congress has modified “standing” under federal law in the past.

We need one law, one amendment to the U.S. Code, granting the states permanent and perennial original jurisdiction in the supreme Court.  This is as provided under the Constitution.  We need to prohibit inferior courts from hearing any case or action where a State or States challenge the limited and enumerated powers of the federal government.  On behalf of the States, we also need to eliminate the need for standing created by damages, by providing the States with super-standing in all such matters – meaning they can bring a challenge at any time after enactment on behalf of their citizens. In the case of the States, we can modify standing to be based upon upon enacted law or regulation.

The supreme Court might continue to rule that inferior courts also have original jurisdiction with the States, in violation of the Constitution, but the federal inferior courts will not be able to act, under federal law.  Remember that Congress establishes and ordains the inferior courts and the supreme Court does not.  Thus the supreme Court will be forced to hear such actions as they will be the only remaining court in the land with original jurisdiction on matters between the States and the federal government in matters of enumerated powers. 

Again the question is: Whether the States should have access to immediately challenge the federal government’s enacting of laws and rules that fall outside the limited powers provided to the federal government by the States under the Constitution?  I think yes!

 

 

 

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Over the last 100 years and more specifically throughout the last 50 years progressives have infiltrated our media, unions as progressive socialists, universities under the protection of tenure, K through 12 school systems via the socialist teachers’ unions and tenure, judiciary, and a host of other key areas of society, especially the U.S. Congress.

Of little note was the infiltration of our state legislatures, with 49 separate houses (Nebraska has only one), by progressive candidates masquerading as moderate and liberal Democrats and Republicans, yes Republican in name only – RINO.  After the election of 2008 and the supreme take over of the U.S. Senate and the House, along with the White House, by the progressive socialists of America, now known as the Democratic party, these folks got pretty smug.  Nancy Pelosi truly thought she could ram unpopular legislation through the Congress and did just that.  President Barack Obama, stocked the executive branch with one communist or communist sympathizer after another to begin his quest for one branch rule of this nation,with the help of his union and other friends (by the way, who is on the other end of his Blackberry).  The new Congress promptly accommodated him by abdicating its role of law making to the executive branch.

These folks knew that in 2010, a limited number of Senate seats were up for election and that the way congressional districts have been defined by federal law a host of safe seats existed, insuring that the core progressive faithfull, many ranking members of committees, would be reelected, and they were.  Despite the historic turnover of Congress, Pelosi kept her role as the leader of the Democrats in the House of Representatives.

Well surprise, the progressive playbook had a flaw.  It did not properly consider the role of the state legislatures.  2010 meant that nearly 700 democrat and democrat progressives were thrown out and replaced by Republicans, conservative Republicans to boot.  27 states currently have both houses controlled by Republicans.  Many more states have at least one branch and the executive branch controlled by Republicans with the other branch holding only a tiny majority for democrats.  Wisconsin replaced a progressive Democrat controlled Senate, Assembly, and Executive Branch with Republicans.

The movements bubbling up from the states offering a host of federal government push back are building steam.  These include efforts for state driven balanced budget, debt ceiling, nullification, and general states rights U.S. Constitutional Amendments.  A reassertion of the 10th Amendment, herculean efforts to stop Obama-care, reclaim land seized by the federal government, anti-public union give-aways, and a host of other anti-federal government legislation and lawsuits.

The war between traditional individual liberty, free market, limited government believers – the Tea Party types, and the progressive socialists who despise our Constitution and equal justice system – everyone has an opportunity not a promise to succeed way of life – is not over, but of late the progressives have been seriously outflanked.

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You may not hear this tonight from either side of the isle, so I thought I would summarize the current state of the union.

Our economy still struggles, but is picking up steam, but unemployment remains unacceptably high. How can the economy pick up steam and yet unemployment is a serious laggard? The Obama administration simply does not no how or does not wish to address the issues keeping unemployment high. Once you take a hard look at this administration, you will see that no one in the power level has ever built a business and through growth hired people – not even the GE Chairman, Jeffrey Immelt.

The Obama administration has been heaping hurdles and regulations on small businesses for two years, and since the small business segment creates 70% of the jobs, they will not hire. No small business owner will hire if he or she is faced with hire unemployment costs – yes “unemployment” costs. Businesses pay into the unemployment fund based on their experience level with unemployment – they are rated on how many have left the business and are in or have been in the unemployment income collection system. Extend unemployment for a year or two and your increase the rating for the business and its expenses.

Require small businesses to provide health insurance and you again increase their costs, thus they do not hire. Their are countless regulations adding cost to small businesses and when the future bottom line inclusive of future expenses is forecast, they do not hire.

Congress, regardless of which party is in power in each house will not make government smaller and more limited.  Ever since the seventeenth amendment was passed taking the appointment of senators from the states and giving the election of senators to the people of the various states, the states cannot control an out of control ever growing self perpetuating federal “central” government.  A little over one hundred years ago, the states could vote down unconstitutional growth in Washington, D.C.

Today, the states just stand by and wish the federal government would follow the eighteen enumerated powers it has in the Constitution.  Unless and until outside forces, such as the states are allowed to apply pressure on the Congress, it will just continue feeding on itself.  We no longer have a free market system and we can no longer call what we have capitalism, because the federal government has intruded for one hundred years, inhibiting how the free market is supposed to operate.

The Supreme Court no longer considers issues based on the law and the written Constitution.  Instead it relies on social interpretation of what is needed, believing itself to be a law making body.  It considers laws of other nations when it decides our legal issues of the day.  These are laws not made by any elected U.S. Senator or Congressman, but this is okay, since they believe that other nations are more enlightened.  Maybe it is the Court that need to be enlightened!  It has used the “Commerce Clause” to turn the limited federal government into an unlimited central planning socialist type of governance.

The Executive Branch now routinely writes regulations with the force of law.  I believe we will have to rename the executive branch – “Congress Lite”.

I would go on, but the list of things gone wrong is too depressing to continue.  You get the idea – the state of the union is dismal and in need of immediate repair by the citizens of this nation – who else will fix the problem?

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At the founding of our country, we had thirteen sovereign states come together and create a new federal government.  These sovereign states were desirous of building a common defense, improving trade amongs themselves and with foreign nations.  The states held that a representative form of government was needed and that a House of Representatives, similar to the lower or “people’s” house of England, the House of Commons, was needed to ensure that the peoples wishes were heard at the new federal level.

However, these states wished to only cede limited power to this federal government.  They knew that a local form of government was best for local issues and that the federal government was only necessary to handle the larger defense and international issues.   These states knew that they would be sharing power with the people under this new federal arrangement.  The intent was for both the people and the states to remain masters of the new federal government.

To accomplish this new limited power arrangement, the founders, representing the states, created a senate.  Under this arrangement the senators would be elected to their federal senate position by the legislatures of the “states united” for a six year period.  The founders placed some key controls in the new constitution to insure that the federal government could not usurp the states and take on un-ceded power, which could and would make the states subordinate to the federal government.

The new senate was given the sole right to try all impeachments, approve treaties, and approve the appointment of ambassadors, public ministers, and consuls (counselors to the president), Supreme Court and inferior court appointments, and officers of the federal government, all with a two thirds approval.

This new senate was specifically provided these controls over the federal government to ensure that the power ceded to the federal government remained limited.  Beyond these specific controls over the president and the federal government, the founders knew that having senators appointed by and representing the respective states would insure that the federal government answered to the states and would remain subservient to these states.

For added measure the founders, more correctly the early Congress and the States, added an amendment in the Bill of Rights.  Number ten states: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This power sharing arrangement worked very well from 1787 through 1912 – 126 years.  It was not until a populist progressive movement got a headwind from the Hearst newspapers around the country that a push for the people to directly elect their senators became a seemingly correct thing to do in a democracy.  Remember, we are a republic and that Randolph Hearst and the progressives stirred up public opinion to believe that there was no reason why in a democracy the people should not directly elect the senate.

The real motive was to have the Hearst publications, at that time found in most states, drive public opinion to select Senators suitable to Randolph Hearst and the progressives – the goal was to enlarge the federal government and to remove the necessary control of the states.

The seventeenth amendment was ratified in 1913, thus ending the careful plans of the founders to ensure balance between the states and the federal government through power sharing.  Today, Senators are subject to the will and money of lobbyists, rather than the will of their state.  Some Senators have created a power base so strong that they have been in office for more than forty years.

If you really want to take back your government, then you must repeal this ill advised amendment, stampeded through ratification by, Big Government Progressives (read “What The Progressives Want”) holding public office at that time and most importantly by the highly influential Randolph Hearst and his powerful national dailies.

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