|You are reading the appendix to"The
37th Amendment," a novel by Susan Shelley. Copyright 2002. All
rights reserved. This material may not be republished, retransmitted,
printed, copied or distributed in any manner, in whole or in part, without
the written consent of the author. Permission is granted for publication
of short excerpts in the context of a review or commentary, provided the
material is appropriately credited.
Incorporation of the Bill of Rights
into the Fourteenth Amendment,
Why It's a Problem,
and How to Fix It
(If you missed the beginning and want to start at the top, click here)
Continued from Part I
The new doctrine of due process "in substance" surfaced again seven years later when the Court heard the case of Joseph Lochner, convicted for the second time of violating a New York state labor law that said he could not require or permit an employee in his bakery to work more than sixty hours in one week. The Court struck down the New York law, calling it a violation of the due process clause of the Fourteenth Amendment.39
Let's stop once again. If the due process clause relates to "trial in a court of justice," as Justice Harlan put it, how can a workplace safety law violate the due process clause?
That's what a lot of people wanted to know.
Justice Rufus Wheeler Peckham, in his opinion for the Court, explained:
The statute necessarily interferes with the right of contract between the employer and employees, concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution.40
This new "liberty of contract" idea met with immediate opposition from some of Justice Peckham's colleagues on the Court. Justice Harlan, who had advanced the idea of due process "in substance" in the Chicago railroad case, pointed out in his dissent that the people of New York obviously believed their law was necessary to protect the health of bakery workers.41 Justice Peckham dismissed him. "It is unfortunately true that labor, even in any department, may possibly carry with it the seeds of unhealthiness," he wrote, "But are we all, on that account, at the mercy of legislative majorities?"42
Justice Harlan warned that the Court's decision in the Lochner case invaded the rights reserved to the states. By using the due process clause of the Fourteenth Amendment to strike down the New York law, he wrote, the Court was "enlarging the scope of the amendment far beyond its original purpose," and "bringing under the supervision of this court matters which have been supposed to belong exclusively to the legislative departments of the several states."43
Justice Oliver Wendell Holmes, in a separate dissent, blasted the Court's opinion as well. "I think that the word 'liberty,' in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion,"44 he wrote.
The Court's creation of "liberty of contract" to strike down popular social legislation incurred the wrath of political leaders like President Theodore Roosevelt. "I may not know much about law," TR thundered, "but I do know one can put the fear of God into judges."45
"Liberty of contract" enjoyed a very short run.46
You are reading the appendix to"The 37th Amendment," a novel by Susan Shelley. Copyright 2002. All rights reserved. This material may not be republished, retransmitted, printed, copied or distributed in any manner, in whole or in part, without the written consent of the author. Permission is granted for publication of short excerpts in the context of a review or commentary, provided the material is appropriately credited.
In 1925, the Court was deciding the case of an anarchist named Benjamin Gitlow when Justice Edward Terry Sanford dropped this bombshell into his opinion:
It was 121 years since Thomas Jefferson had written to Abigail Adams and explained that the states had the right, and the exclusive right, to "controul" the freedom of the press. Did the Fourteenth Amendment change that? Apparently not, because just three years earlier, in 1922, the Court had held that the Constitution "imposes upon the States no obligation to confer...the right of free speech."48 Then what had changed?
Legal historian Charles Warren was mystified:
By 1931, Chief Justice Charles Evans Hughes would write in the case of Near v. Minnesota:
Perhaps if the chief justice had read Thomas Jefferson's mail, he would have concluded that it wasn't impossible at all. As a matter of fact, four justices dissented from the Court's opinion in the Near case, complaining:
With precedent or without it, the U.S. Supreme Court had declared freedom of speech and the press to be "fundamental rights" that the states would not be permitted to abridge. But what about the other provisions in the Bill of Rights? Weren't they "fundamental" as well?
It is true, as Professor Charles Warren wrote in 1926, that the Supreme Court had for fifty years refused to find that the Fourteenth Amendment made the protections of the Bill of Rights apply in state courts. Take, for example, the case of Joseph Hurtado,52 who argued to the Court in 1884 that California could not execute him for murder because he had not been indicted by a grand jury. California's state constitution allowed district attorneys to prosecute accused murderers by filing an "information" charging the defendant with the offense. Hurtado claimed that the California procedure violated his rights under the Fifth Amendment to the U.S. Constitution, which states in part, "no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury."
Alas for Hurtado, he met the same fate as John Barron and his sludge-filled wharf. Justice Stanley Matthews, writing for the Court, held that the Fifth Amendment didn't apply to the states. If the Fourteenth Amendment had been designed to extend the Bill of Rights to the states, Justice Matthews wrote, it would have said so in plain English.53
The question was before the justices again in 1900 when "Gunplay" Maxwell's appeal reached the Supreme Court.54 Maxwell had been arrested, tried, convicted and sentenced to prison for robbing a Utah bank of $3,000 in gold coins. His attorneys argued to the Court that his rights under the due process clause of the Fourteenth Amendment had been violated because Utah had prosecuted him by information, not grand jury indictment, and tried him by a jury of eight men, not twelve.
Justice Peckham, who five years later would find that the Fourteenth Amendment's due process clause protected bakeries from labor laws, found nothing in the same clause to protect "Gunplay" Maxwell from the laws of Utah. "The proceeding by information, and also the trial by a jury composed of eight jurors, were both provided for by the state Constitution,"55 he wrote, calling it "settled" that due process of law did not require a grand jury indictment,56 trial by a jury of twelve, or trial by jury at all.57
Justice Peckham reminded everyone that the first ten amendments to the Constitution "were not intended to and did not have any effect upon the powers of the respective states," adding dismissively, "This has been many times decided."58
Let's just stop here for a moment and get a good look at this: As late as 1900, a majority of the justices on the U.S. Supreme Court agreed that the Bill of Rights did not apply to the states.
Dissenting from this view, Justice John Marshall Harlan wrote, "It seems to me that the privileges and immunities enumerated in these Amendments belong to every citizen of the United States."59 But Justice Harlan's ideas were, to quote future Supreme Court Justice Felix Frankfurter, "eccentric."60
In 1908, banker Albert C. Twining attempted to persuade the Supreme Court that a state should not be permitted to abridge the right against self-incrimination. Indicted for deceiving a New Jersey state bank regulator, Twining refused to testify at his trial and was convicted after the judge instructed the jury that they could, if they wished, infer from Twining's silence that he might be guilty. This was allowed under New Jersey law, but Twining argued that the law violated his rights under the Fifth Amendment, which states that no person "shall be compelled in any criminal case to be a witness against himself."
The Court didn't see it that way. Justice William Henry Moody wrote, "We think that the exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the Federal Constitution."61
Justice Harlan tried again to argue for a broader interpretation of the Bill of Rights. "Immunity from self-incrimination was recognized in the 5th Amendment of the Constitution," he wrote. "It should be deemed one of the immunities of citizens of the United States which the 14th Amendment, in express terms, forbids any state from abridging."62 He argued that the same should be true of the First Amendment's freedom of speech, the Eighth Amendment's ban on cruel or unusual punishments, the Fifth Amendment's protection against double jeopardy and the Fourth Amendment's prohibition of unreasonable searches and seizures.63
The year was 1908, and none of these "immunities" had yet been incorporated into the Fourteenth Amendment and applied against the states. Even Justice Harlan, in stating that the right against self-incrimination "should be" deemed an immunity of citizens of the United States, tacitly acknowledges that, forty years after the ratification of the Fourteenth Amendment, it is not.
If the Fourteenth Amendment's due process clause did not apply the Bill of Rights to the states, what exactly did it do?
A good example can be found in the 1936 case of Brown v. Mississippi.64
On March 30, 1934, a white planter named Raymond Stuart was brutally murdered in his home in Kemper County, Mississippi.65 That night, deputy sheriff Cliff Dial and some others came to the home of a black sharecropper by the name of Arthur "Yank" Ellington and asked him to accompany them to Stuart's house. There the group was met by a crowd of white men who accused Ellington of the murder, which he denied.
The men grabbed a rope. Yank Ellington was hanged by the neck from a tree, let down, ordered to confess, and hanged again when he refused. Then he was let down, tied to a tree, and whipped. Still he refused to confess to the murder. Finally he was released and allowed to return home. But a day or two later, deputy sheriff Dial returned to Ellington's home and arrested him. During the trip from Kemper County to the Meridian jail, the deputy sheriff stopped and whipped Ellington viciously, vowing that he would continue until Ellington confessed to the murder. Broken and bleeding, Ellington agreed to confess to whatever the deputy dictated. He was then taken to jail.
Two other black men, Ed Brown and Henry Shields, were arrested for the same crime. They were likewise taken to the jail in Meridian, where they were tied to chairs and beaten with leather belts until they "confessed" to the murder. They were warned to expect more of the same treatment if they changed even one word of their statements.
Although there was no evidence against the three men other than the coerced confessions, and although the court was aware of the violence that had produced them--the deputy and others freely admitted to it--the men were convicted of the murder of Raymond Stuart. They appealed to the Mississippi Supreme Court, arguing that their right to due process of law, guaranteed by the Fourteenth Amendment, had been violated by the court's decision to admit forced confessions into evidence. The state high court ruled against them, upholding the convictions.66
Ellington, Brown and Shields appealed their case to the U.S. Supreme Court. In response, the State of Mississippi argued that the forced confessions were, in fact, constitutional. The Supreme Court had already held, in Twining v. New Jersey, that "exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the Federal Constitution,"67 and in the case of Snyder v. Massachusetts68 that "the privilege against self-incrimination may be withdrawn and the accused put upon the stand as a witness for the state."
Chief Justice Hughes wasn't buying it. "The question of the right of the state to withdraw the privilege against self-incrimination is not here involved," he wrote for the Court. "The compulsion to which the quoted statements refer is that of the processes of justice by which the accused may be called as a witness and required to testify. Compulsion by torture to extort a confession is a different matter."69
Chief Justice Hughes acknowledged that the state of Mississippi was free "to regulate the procedure of its courts in accordance with its own conceptions of policy." However, he noted, "The due process clause requires 'that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.'"70 The chief justice made sure there was no misunderstanding: "The rack and torture chamber may not be substituted for the witness stand," he wrote. "It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for the conviction and sentence was a clear denial of due process."71
And with that, the U.S. Supreme Court stepped in and rescued three black men from unjust death sentences in a former slave state, exactly as the 39th Congress had intended when it framed the Fourteenth Amendment. The Court did not expand the Fifth Amendment privilege against self-incrimination to state courts. The plain language of the Fourteenth Amendment, barring states from denying due process of law, was sufficient to strike down what Chief Justice Hughes called "a wrong so fundamental that it made the whole proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void."72
Four years earlier, the Court had taken a small step toward enforcing the Bill of Rights in state courts. In the 1932 case of Powell v. Alabama,73 the Court held for the first time that a state conviction was void because the state had not provided the defendants with adequate defense counsel. By a vote of 7-2, the Court decided that, in this case, due process had been denied. "Whether this would be so in other criminal prosecutions, or under other circumstances," Justice George Sutherland hedged, "we need not determine."74
What were the circumstances that prompted the Court to throw out this particular state court conviction? Nine young black men traveling on a train were accused of raping two white women. Reaction in the community of Scottsboro, Alabama, was so intensely hostile that the sheriff was forced to call in the militia to protect the men from the possibility of mob violence.75 Lawyers were not appointed for the defendants until the morning of the trial.76 In short, there were serious questions about the quality of justice available to blacks in a former slave state, and the U.S. Supreme Court invoked the due process clause of the Fourteenth Amendment to protect their rights. The Powell case broke new ground. Part of the Sixth Amendment--the right to the assistance of counsel in criminal prosecutions--now applied to the states, although only in capital cases.
In his opinion, Justice Sutherland took note of the Court's holding in the 1884 Hurtado case that the Sixth Amendment did not apply to the states. But he also noted several more-recent examples of the Court incorporating some bits of the Bill of Rights into the Fourteenth Amendment. He cited the 1897 Chicago railroad case with its doctrine of due process in "substance," the 1925 Gitlow free-speech case with its assertion of "fundamental personal rights," and the 1931 Near case with its declaration of the "essential personal liberty" of freedom of the press. "These later cases establish," Justice Sutherland wrote, "that notwithstanding the sweeping character of the language in the Hurtado case, the rule laid down is not without exceptions."77
The year was 1932, and the Bill of Rights still did not apply to the states, except for the "exceptions" carved out by the Court.
In 1937, Frank Palko tried to become one of the exceptions. He had been indicted in Connecticut for first-degree murder and could have faced the death penalty for allegedly killing two police officers, but a jury found him guilty of second-degree murder instead. The prosecutors appealed, which was permitted under Connecticut law, citing errors by the trial judge. The state Supreme Court granted a new trial, and on the second try, Palko was convicted of first-degree murder and sentenced to death.
Palko appealed to the U.S. Supreme Court,78 arguing that he had been tried twice for the same crime in plain violation of the Fifth Amendment, which provides that no person shall, for the same crime, "be twice put in jeopardy of life or limb."
The Court was not sympathetic to Frank Palko. Justice Benjamin Cardozo, writing for the eight-justice majority, dismissed the argument that Palko's two trials violated the Fourteenth Amendment's due process clause. "Maxwell v. Dow gives all the answer that is necessary," he wrote.79
The answer given by Maxwell v. Dow was that the Bill of Rights doesn't apply to the states. Yet Justice Cardozo included this footnote in his opinion:
So the rules of the game begin to take shape. The Bill of Rights does not apply to the states, but if you can sell the justices on the idea that a right is included in the conception of due process of law, you may have yourself a deal.
Justice Cardozo attempted to establish a basis for determining which rights were to be applied against the states and which were not. He suggested that only those rights which are "of the very essence of a scheme of ordered liberty" should apply to the states.82 Does that seem rather vague and subjective? Justice Cardozo doesn't think so. Trial by jury, grand jury indictments and immunity from self-incrimination may have value, he wrote, but "few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them."83
It certainly sounds strange today to hear an Associate Justice of the U.S. Supreme Court dismiss the right to trial by jury as not "fundamental" to a fair and enlightened system of justice. Although declaring that he would apply to the states any federally-guaranteed right that is "of the very essence of a scheme of ordered liberty," Justice Cardozo seems to leave plenty of room to avoid doing so.
What could explain the justice's seemingly contradictory views? Let's all do the math together. The year was 1937. The Fourteenth Amendment had been ratified sixty-nine years earlier, two years before Benjamin Cardozo was born. While he missed the public debate over the scope and meaning of the new amendment, the law professors who taught him at Columbia Law School in 1891 had enjoyed a front-row seat. The influence of those educators on the minds of Justice Cardozo and his colleagues was the last direct connection to the original understanding of the Fourteenth Amendment. Justice Cardozo shows a reluctance to expand federal control over state law that is exactly what you would expect from a man who knows in his bones that the purposes of the Fourteenth Amendment were limited.
Eight of the nine justices who decided the Palko case were gone ten years later when the Court heard the case of Adamson v. California. Adamson had been convicted of murder and sentenced to death, but he appealed to the U.S. Supreme Court because, like New Jersey banker Albert Twining before him, he had chosen not to testify at his trial, and state law permitted the prosecutor and judge to tell the jury that his silence might indicate guilt. Adamson argued that the California law violated his Fifth Amendment right against self-incrimination, made applicable to the states by the due process clause of the Fourteenth Amendment.
This is exactly the argument that didn't work for Albert Twining in 1908. However, since that time the Court had declared that freedom of speech and the press were incorporated into the Fourteenth Amendment, as were religious liberty,84 the right of peaceable assembly,85 and the right to counsel in capital cases.86 Would Mr. Adamson have better luck?
By a vote of five to four, no, he would not.
"It is settled law," Justice Stanley Reed wrote for the Court, "that the clause of the Fifth Amendment, protecting a person against being compelled to be a witness against himself, is not made effective by the Fourteenth Amendment as a protection against state action."87
Justice Reed cited the case of Barron v. Baltimore as well as the Slaughter-House Cases to demonstrate that the Court had never accepted the idea that the entire Bill of Rights applied to the states. He cited the cases of Twining and Palko to show that the due process clause did not "draw all the rights of the federal Bill of Rights under its protection."
This ended the argument for Mr. Adamson, but not for the rest of the country. In a fierce dissent, accompanied by a 30-page appendix of quotations from congressional speeches and committee reports, Justice Hugo Black argued that it was the intent of the 39th Congress to incorporate all the protections of the Bill of Rights into the Fourteenth Amendment and make them applicable to the states.88
Justice Black complained in his Adamson dissent that the U.S. Supreme Court simply had no authority to pick and choose which parts of the Bill of Rights were to be applied to the states through the Fourteenth Amendment. However, he said:
Justice Felix Frankfurter agreed with the majority that Mr. Adamson did not have a Fifth Amendment right against self-incrimination in a state court, but in his concurring opinion, he too complained about the picking-and-choosing problem:
What are the consequences of having a "merely subjective test" to determine which state laws violate the Constitution? Here's one: the appointment of justices to the U.S. Supreme Court becomes a matter of life-and-death importance for those who wish to use the Fourteenth Amendment to strike down state laws which they believe to be oppressive. A single justice's view of what is "indispensable to the dignity and happiness of a free man" could be the deciding factor that determines the law for generations to come.
At least that's what Justice Frankfurter thought in 1953 when Chief Justice Fred M. Vinson died of a heart attack. As Frankfurter dressed to go to the funeral, his law clerk Alexander M. Bickel heard him murmuring over and over, "An act of Providence, an act of Providence." Bickel, who had just had lunch with the justice, knew what he was thinking. "I concluded that he feared a splintered Court on Brown," Bickel explained, "with himself in the role perhaps of casting the deciding vote."91
Bickel was referring to the case of Brown v. Board of Education, first argued before the Court in December 1952, nine months before Chief Justice Vinson's death. In his notes, Frankfurter had listed the chief justice along with Justices Tom Clark, Stanley Reed and Robert Jackson as likely dissenters if the majority voted to overturn Plessy v. Ferguson, the 1896 decision which had held that the Fourteenth Amendment did not require an end to racial segregation but only that the separate facilities be equal. Chief Justice Vinson had stated at the beginning of the justices' December 1952 conference that he found it "hard to get away from that contemporary interpretation of the amendments."92 Vinson pointed out that Congress, far from trying to end segregation in the states, had provided for segregated schools in Washington, D.C. "I don't see," the Chief Justice told his colleagues, "how we can get away from the long established acceptance in the District. For 90 years, there have been segregated schools in this city."93
Justice Frankfurter had long been a proponent of judicial restraint, but this time he had moved over into the activist camp. He had made up his mind "from the day the cases were taken" that racial segregation had to be ended, said his former law clerk William Coleman, who went on to become the coordinator of research for the NAACP.94 Yet Frankfurter feared disastrous consequences if the Court imposed desegregation on the country by a divided decision,95 and he made a relentless effort to convince the other justices to join a unanimous opinion to overturn Plessy and outlaw racially segregated schools.96 He succeeded. And it was only possible because of the sudden death of Chief Justice Vinson. "This is the first indication I have ever had that there is a God," Frankfurter said.97
After President Dwight D. Eisenhower appointed California Governor Earl Warren to replace Chief Justice Vinson, Frankfurter worked hard to educate the new chief justice on the issues in Brown.98 But Earl Warren was not one to be overly concerned about technical legal issues. "Personally," he told the other justices at their December 12, 1953, conference, "I can't see how today we can justify segregation based solely on race....my instincts and feelings lead me to say that, in these cases, we should abolish the practice of segregation in the public schools--but in a tolerant way."99
In the historic 1954 decision in the case of Brown v. Board of Education,100 the Court held that the history of the Fourteenth Amendment was "inconclusive" with respect to the lawmakers' intentions on the subject of school segregation,101 that the Court must not "turn the clock back to 1868" but instead must consider public education's "present place in American life,"102 and that racial segregation deprives minority schoolchildren of equal educational opportunities even if the "physical facilities" are equal.103 Chief Justice Warren wrote in his opinion for the unanimous Court,
Never before had the equal protection clause been interpreted to bar the practice of racial segregation in public schools. Was the legislative history of the Fourteenth Amendment really "inconclusive?" During the debates on the 1866 Civil Rights Bill, which was considered by the 39th Congress to be identical with the first section of the Fourteenth Amendment,105 Senator Edgar Cowan of Pennsylvania complained about the clause in Section 1 that required "no discrimination in civil rights...on account of race." In the state of Pennsylvania, Senator Cowan pointed out,
Similar concerns expressed during the debate in the House led Judiciary Committee Chairman James Wilson to strike out the "no discrimination" clause to prevent any possibility that it "might give warrant for a latitudinarian construction not intended."107
Chairman Wilson did not foresee Chief Justice Earl Warren, who regarded the actions of Congress as optional equipment where desegregation was concerned. Warren wrote in his 1977 memoirs,
Was the Brown decision really grounded solely on the Fourteenth Amendment? In the fifteen years following the ratification of that amendment in 1868, state lawsuits challenging school segregation were brought in Ohio, Indiana, Nevada, California and New York, and a federal lawsuit was brought in Louisiana.109 In every case, the courts held that the Fourteenth Amendment's equal protection clause did not mean blacks had a constitutional right to attend white schools.
That's consistent with the assurances given by Senator Lyman Trumbull in 1866. "This [Civil Rights] bill in no manner interferes with the municipal regulations of any State which protects all alike in their rights of person and property," he told the Senate. "It would have no operation in Massachusetts, New York, Illinois, or most of the States of the Union."110
So at the time the Fourteenth Amendment was adopted, schools were segregated in Ohio, Indiana, Nevada, California and New York, as well as in Pennsylvania, as Senator Edgar Cowan had rather proudly stated. The schools were segregated in the District of Columbia. The Senate gallery was segregated.111 Is it plausible that the Fourteenth Amendment was intended to abolish segregation when the federal government made no effort whatsoever to enforce desegregation anywhere in the country for the next eighty-six years?
Or did the Warren Court simply step in and rescue black schoolchildren from racial segregation, much as earlier Courts had rescued black people from wrongful death sentences in the cases of Brown v. Mississippi and Powell v. Alabama?
A debate over the constitutional warrant for the Brown v. Board of Education decision cannot obscure the monumental injustices that the Constitution permitted against black Americans, first by tolerating slavery (counting each slave as three-fifths of a person for purposes of Congressional representation)112 and later by granting blacks, through the Fourteenth Amendment, the protection of only a limited category of rights. It may someday be the verdict of history that the Court's actions in 1954 were both heroic and, necessarily, unconstitutional.
Chief Justice Warren, a former governor, badly wanted the public to accept the Brown decision. He wrote later,
The chief justice raises an interesting question with that comment. Why did Warren care what the public thought of the Brown decision? The Founders insulated Supreme Court justices from politics by giving them lifetime terms. If the justices determined that the Constitution required an end to segregation, the people had no say in the matter. Of course, the people could amend the Constitution to overrule the justices. On the other hand, the Constitution already reserved to the states the power to operate segregated schools, or it had, up until the Brown decision.
In reality, it was the Court that had amended the Constitution.
In the Brown opinion, Warren wrote,
Among those problems was what Warren later called "the bitterness with which every stride forward has been fought by racists, extreme right-wing groups, and blind adherents of the status quo."115 The Court was faced with the fact that the judicial branch of the U.S. government has no power to enforce its "decrees" on elected officials who do not find "It is so ordered" to be a persuasive argument.116
Suppose the Court had not decided Brown the way it did. Is it possible that the political branches of the U.S. government eventually would have come around to the view that racial segregation was wrong and had to be made illegal? Consider this remark by one elected official, who pulled Chief Justice Warren aside at a dinner in Washington D.C. shortly before the Brown decision was announced. Speaking of the Southern segregationists, the official told the chief justice:
Of course, it's not news that some elected officials in the United States held views of this type during the 1950s. But there were also leaders like President Dwight D. Eisenhower, who sent 1,000 U.S. Army paratroopers to Little Rock, Arkansas, to escort black students safely into Central High School.117 What about President Eisenhower?
That was President
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