Sotomayor Misstates Constitutional Law

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Georgetown University law professor Randy Barnett catches Supreme Court nominee Sonia Sotomayor misstating constitutional law during today's confirmation hearings:

As she did yesterday, Sotomayor asserted that a right is "fundamental" if it is "incorporated" against the states via the 14th Amendnent rather than that a right is incorporated against the states if it is fundamental. She then claimed that Supreme Court precedent established that that the Second Amendment is not incorporated. This too is inaccurate. As Justice Scalia stated in Heller, the precedents refusing to apply the Second Amendment to the states (on which Sotomayor's panel relied in Maloney) did not address the modern "fundamental rights" doctrine. Judge Sotomayor's panel in the Second Circuit said nothing about the merits of the claim that the individual right to bear arms meets the modern test for identifying a fundamental right.

Barnett goes on to highlight the offending portion of Sotomayor's testimony, and ends with this damning observation: "This is both a grossly incorrect (and empty) understanding of the doctrine governing the protection fundamental rights and an inaccurate statement of the precedents concerning the incorporation of the right to keep and bear arms into the Due Process Clause of the Constitution."

Whole thing here.

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  1. A Senator actually did ask her about Justice Scalia’s Kyllo decision (5-4, Scalia, Thomas, Ginsburg, Breyer, Souter for the majority) saying that cops needed a warrant to use temperature sensors to spot marijuana grow lamps.

    She, of course, demurred, saying that she doesn’t know a lot about growing pot. Nothing to do with the jurisprudence, of course.

    Still, there’s a good chance that her nomination could mean that the cops won’t need warrants any more to look for heat lamps.

  2. She is going to get slaughtered by the people currently sitting on the court. Scalia is going to eat her lunch in dissents against her holdings and concurrences and concurrences that conflict with her dissents. She isn’t exactly looking like the sharpest rock in the box.

  3. Dang it, when will these idiots let me hang up my pair of bear arms that I recovered from a car accident that was in no way related to hunting? They will make great decorations!

  4. Near as I can figure, “Sotomayor” is Spanish for lying whore.

  5. I wonder if any of the flesh-eating zombie robots on the Judiciary Committee have the processing power to follow up on her gross misstatements of fundamental Con law from yesterday?

    I know, to ask the question is to answer it . . . .

  6. Hey, speaking of Con Law, some army officer filed a suit refusing his orders to deploy until the Commander In Chief demonstrates, with an original long-form birth certificate, that he is in fact a US citizen.

    The Army promptly rescinded his orders, in an attempt to render his suit moot. Which is an interesting way to avoid the issue, and raises the question:

    Why hasn’t Obama put this to rest by issuing the original long-form certificate filed by the hospital when he was born?

    [Sits back, grabs popcorn for ensuing fray].

  7. Her testimony is living, breathing proof that the framers did not want the judiciary to accord “deference” of any kind to other “learned” judges and courts.

  8. Those who argue that the Second Amendment recognizes only a right of the state governments to form their own armies have had to struggle with what “the instrument itself” says: “the right of the people to keep and bear Arms.” Their solution, remarkably, is to contend that the “people” who have a right under the Second Amendment are not the same “people” — namely, individual citizens (“natural persons,” in legalese) — who have rights under the First, Fourth, and Ninth Amendments. Rather, the Second Amendment refers to a “collective” — and thus to a “collective right.”

    This schizophrenic construction almost by definition has no integrity. An attempt to provide some measure — by extending the “collective right” reading beyond the Second Amendment — has been made in recent times by University of Tulsa law professor Paul Finkelman:

    Consider, for example, the term “people” in the First Amendment — “Congress shall make no law … prohibiting … the right of the people peaceably to assemble.” If it is hard to construe the word “people” in the Fourth Amendment to be anything but a reference to individuals, it is equally difficult to construe the term in the First Amendment as anything but a collective right. Clearly, the idea of the people assembling contemplates a large number of people and not a single person assembling.

    And all this means — what? That an “assembly,” like a state army (i.e., their “Militia”), is a government-controlled unit of select persons? That “the people” can assemble only when, with whom, and for what reason as determined by the legislature? Extending this to another First Amendment clause, does it mean people-as-a-collective may form a church (a “religion”), but no one individual has a right to his own personal theological convictions?

    The right of assembly is a right of the individual — each and every individual (“the people”) — to assemble with those who’ll consent to join him. The problem comes from the notion that a “collective” is something other than a collection of individuals, and it only gets worse when we are told that “the people” means this “collective,” which is then construed to mean the state governments. For the integrity of the debate, let us acknowledge that those who believe the Second Amendment grants a right to American citizens are advocating the “civil rights” theory, while those who contend the enumerated right belongs to only the state governments are advocating what cannot be called anything but the “states’ rights” theory.

    WHOLE STORY

  9. R C-

    It looks like you have your good stuff today, i.e., you’ve got some movement on your fastball and your breaking stuff is Blylevenesque.

  10. some army officer filed a suit refusing his orders to deploy until the Commander In Chief demonstrates, with an original long-form birth certificate, that he is in fact a US citizen.

    Some Army Officer is a retarded fuckhead.

  11. Mr. Dean is absolutely right: Just where the heck is our robot zombie posting? Some of us are paying subscribers, you know. And don’t forget to mention Hank, who first led us to the promised land of robot zombies! Frankly, I think people would be in the streets if Bush had implemented such a scheme.

    Back to the topic at hand, why oh why couldn’t we have gotten a wise black woman from Alabama? Named, I dunno, Janice Rogers Brown?

  12. As much as I dislike this nominee, I hadn’t heard anything that I thought would disqualify her – until now.

    It may be grasping at straws, but this is a fundamental misunderstanding. I’ve always said that the way to keep bad nominees from the bench is at the ballot box. Get the right nominators, no issue. BUT they need to be qualified… this may turn the tables. We’ll see.

  13. Barry-

    You should delete “almost” from the first sentence of your second paragraph.

  14. Some Army Officer is a retarded fuckhead.

    He’s a retarded fuckhead who isn’t going to Afghanistan after all, though.

  15. TAO-

    Did he attain his objective?

  16. Well, she’s certainly no intellectual heavyweight like Harriet Miers. But it looks like Obama’s doing the best with what he’s got.

  17. He’s a retarded fuckhead who isn’t going to Afghanistan after all, though.

    Yeah, but that case was more about a lawyer using this kid to get the info about the birth certificate and less about one guy going to Afghanistan.

    Objective attained? No.

  18. Scalia is going to eat her lunch in dissents against her holdings and concurrences and concurrences that conflict with her dissents. She isn’t exactly looking like the sharpest rock in the box.

    She’s not, but with five votes coming from dumb rocks, the dumb rocks can do anything they want.

  19. He’s a retarded fuckhead who isn’t going to Afghanistan after all, though.

    We’ll see about all that. If Officer Chucklehead gets promoted, is he going to have to turn it down because of the President?

  20. some army officer filed a suit refusing his orders to deploy until the Commander In Chief demonstrates, with an original long-form birth certificate, that he is in fact a US citizen.

    Some Army Officer is a retarded fuckhead.

    It’s his duty as an officer to refuse an order that is unconstitutional.

    “I, Soandso, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same;

    Note the constitutional defense and allegiance come before obeying the president. There’s a reason for that. No matter how trivial it may seem. I’m not much of a BO birth certificate truther. But it could be looked at as it not only being his right to question, but his duty.

    None the less, he’s not going anywhere anytime soon.

  21. Mike in PA-

    Cite? I do not doubt that your representation is true as far as the lawyer’s motive is concerned. However, how about the soldier’s motivations? Do you claim that the soldier did not care one way or t’other about being deployed? At first blush, I do have a hard time buying that proposition.

  22. hmm – I might know something about “The Oath”, but be rest assured that it isn’t full license to just go off any any half-baked nutjob Truther scheme – if the Electoral College certified the President, then that should be good enough for some chucklehead LT to move out and draw fire.

  23. I’m not much of a BO birth certificate truther.

    Me neither. But I wonder why the original certificate hasn’t been released. It would be very easy to do, and (assuming it is as advertised) would put this whole thing to rest.

    I must say, though, that if it turns out that there is a serious question as to his eligibility to be President, it would be the most entertaining thing in politics since, well, forever. So I’m kind of rooting for it, but I feel bad about it.

  24. Has anyone asked her about keeping that innocent guy in jail for an additional six years because his attorney filed a couple days late? I suspect that’s no problem for the sentars at all.

  25. hmm – I might know something about “The Oath”, but be rest assured that it isn’t full license to just go off any any half-baked nutjob Truther scheme – if the Electoral College certified the President, then that should be good enough for some chucklehead LT to move out and draw fire.

    He’s a major, not a lieutenant. And the EC isn’t the arbiter of eligibility to be President, only of the vote.

  26. “She’s not, but with five votes coming from dumb rocks, the dumb rocks can do anything they want.”

    She’ll make her decision based on ideology then her clerks will flesh it out. From what I’ve heard it won’t be the first time a justice has done htis.

  27. ah, there was a lieutenant in February that had the same lawsuit.

    OK, RC, and if the EC isn’t the determiner, who, exactly, is? Sorry, but I think you’re wrong here: certifying the vote also involves certifying eligibility. If you’re ineligible to receive votes, then the vote isn’t certified. If Mickey Mouse received 1 EV, the EC wouldn’t certify it because he’s ineligible.

  28. Angry Optimist — May I just inform you that you are dumb motherfucker. You NEVER use argument. You always use insult and attack.

    So, until you change this tactic, I think all others here should return the favor and refuse to answer anything you say with anything but an insult due to the fact that your tiny brain cannot apparently be operated before your mouth starts moving.

  29. I’m inclined to believe he’s foreign born. But I’m okay with that as the US is not 18th century Poland.

  30. Just becasue you do not agree with the “chucklehead” officer does not mean that he has gone off on some “half-baked nutjob Truther scheme” TAO.

  31. Fred – I politely invite you to die in a fire.

  32. I’m with TAO. Drop dead, Fred.

  33. you’re right, libertymike, my agreement with Major Fuckhead has nothing to do with the validity of his claims. His own nutjobbery speaks to that very well all on its own.

    So, what if the major filed a suit that said that Obama isn’t the President because he was born on Talos IV and is actually a member of the race of Ant People? The conspiracy theory behind the birth certificate thing is equivalent in its lunacy.

  34. *my DISagreement

  35. Judge Sotomayor says “eminent” when she means “imminent,” “providence” instead of “province,” “story of knowledge” instead of “store of knowledge,” and so on. Does the fact that she is a Latina immunize her from attention to that sort of (admittedly not uncommon) foible?

  36. some army officer filed a suit refusing his orders to deploy until the Commander In Chief demonstrates, with an original long-form birth certificate, that he is in fact a US citizen.

    Is he still taking a salary while refusing those orders?

  37. It would be so awesome if Obama really were disqualified to hold office, right up until the moment they removed him and Biden took over the presidency.

    I doubt there’s anything at all to the birth certificate issue, but we deserve that kind of scandal right now.

  38. TAO, I do not claim to know a whole lot about this birth certificate issue. Having said that, I will not insult your intelligence by trying to hide my preference that the issue gets 24/7 cable coverage and blows up in BOs lap.

  39. Note the constitutional defense and allegiance come before obeying the president.

    There is NO mention of obeying the president, in fact currently there is no oath to obey orders – only to “well and faithfully discharge the duties” of the office. Refusing to follow orders of superior officers has nothing to do with the President – the guy should get an article-15 and be made an example of.

  40. TAO-

    Perhaps Fred is suggesting that instead of telling a person “to eat shit and die”, it mught be more polite to tell that person “to consume defecation and perish.”

  41. PL –

    now, I am no elections lawyer, but aren’t the President and VP certified as a ticket now? Wouldn’t we have to have the whole election over?

    Anyway, the Presidential succession list makes me weep:

    1 Vice President – Joe Biden
    2 Speaker of the House of Representatives – Nancy Pelosi
    3 President pro tempore of the Senate – Robert Byrd
    4 Secretary of State – Hillary Rodham Clinton
    5 Secretary of the Treasury – Timothy Geithner

    So, be careful what you wish for…

    Refusing to follow orders of superior officers has nothing to do with the President

    domo – here I actually disagree with you. The ultimate authority for those orders is the President. Granted that he generally delegates that authority, but if he has no authority, then the delegated authority is also moot.

  42. Fred | July 15, 2009, 12:50pm | #
    Angry Optimist — May I just inform you that you are dumb motherfucker. You NEVER use argument. You always use insult and attack.

    So, until you change this tactic, I think all others here should return the favor and refuse to answer anything you say with anything but an insult due to the fact that your tiny brain cannot apparently be operated before your mouth starts moving.

    Go fuck yourself, Fred. Even if everything you stated was true, at least Tao is not boring as a lump of cow shit baking in the sun. Try a combination of words that haven’t been market tested by a million idiots before you got hold of them.

  43. “This is both a grossly incorrect (and empty) understanding of the doctrine governing the protection fundamental rights and an inaccurate statement of the precedents

    This, alone, should guarantee that she gets the job.

  44. You don’t need a birth certificate to be a citizen or to be eligible to be President.

  45. It would be so awesome if Obama really were disqualified to hold office, right up until the moment they removed him and Biden took over the presidency.

    Move out of the way, CIA. Let a real pro handle this — no time to talk, men. Got some documents to forge.

  46. I must say, though, that if it turns out that there is a serious question as to his eligibility to be President, it would be the most entertaining thing in politics since, well, forever. So I’m kind of rooting for it, but I feel bad about it.

    It’d be worth it just to read the torrent of lonewacko posts. Until the 9/11 troofers started using it as “evidence”.

    Oh, and Xenoes would probably need to get new Ctrl and V keys.

  47. LM – in the interest of harmony with you, I think we should declare March 4th “Anarchy Day” in honor of the day in 1849 where we effectively had no government.

  48. “The ultimate authority for those orders is the President. Granted that he generally delegates that authority, but if he has no authority, then the delegated authority is also moot.”

    So, supposing that an ineligible person was elected President, no otherwise lawful orders given in the military would be valid and should not be followed? All of the people currently deployed in dangerous places would no longer have any obligation to follow orders?

  49. TAO,

    I assume that Biden would remain as VP and be eligible for succession. There’s no process for a special election or anything, and the disqualification wouldn’t affect him directly. Besides, the Court would never allow Pelosi to be president.

    I don’t want Biden to be president or anyone else in the chain, but the outcry over that kind of scandal would be delicious. Given the state of affairs today, I think there would be a real danger of Obama refusing to vacate the office. Fortunately, the Honduran army is near by. Rested. Ready.

  50. She doesn’t view the 2nd amendment as a fundamental right? Then fuck her and all her rights she thinks she has. She has none in my eyes.

  51. “Perhaps Fred is suggesting that instead of telling a person “to eat shit and die”, it mught be more polite to tell that person “to consume defecation and perish.”

    TAO used to be a pretty logical and straight forward poster on this board. He must be feeling the pressure of graduating from a third tier law school (tOSU) when the job market for attorneys does suck so. My theory is that he’s in the process of sucking up to the liberal professors in the hope of scoring a job. ;~)

  52. libertymike,

    link

    According to this, the guy says he wanted to go to Afghanistan, but couldn’t follow an order by this President. It wasn’t about staying home like they’re trying to make it out. It’s not cowardice.

    This lawyer, Orly Taitz, has been rounding up several soldiers to do the same thing in several jurisdictions to spark the controversy. Whether it’s valid or not, I think it’d definitely slow things down if Obama had to defend this stuff.

  53. domo – here I actually disagree with you. The ultimate authority for those orders is the President. Granted that he generally delegates that authority, but if he has no authority, then the delegated authority is also moot.

    Not so. The authority to maintain a military flows from the constitution – which is the object of the oath. The majors superior officers have authority that vests from their own commissions, and are entrusted with that on the basis of their own oaths to uphold the constitution. If there is a usurpation of the presidents authority, that does not result in the dissolution of the military: In fact that would defeat the whole point of swearing allegience to the constitution. The military can and should continue to function via the chain of command.

    This is a low level guy streaking across the quad to make a stupid point and get out of a deployment. If the CJCS were saying he would not obey orders then we would have something, but you simply do not have the authority as a rank and file officer to refuse legit orders from ANOTHER officer, because the boss 15 steps up is illegitimate. That is a decision for the guy 14 steps up.

  54. Again, domo… Do a little research.

    It’s not about avoiding the deployment, it’s about getting the controversy stirring. Some of the soldiers doing this have already been deployed in other theaters.

  55. Mike in PA – I can read what they say – tell me why I should believe what they claim their motives are?

  56. TAO used to be a pretty logical and straight forward poster on this board. He must be feeling the pressure of graduating from a third tier law school (tOSU) when the job market for attorneys does suck so. My theory is that he’s in the process of sucking up to the liberal professors in the hope of scoring a job. ;~)

    You see, Fred? Do you see? Now, that is a take down. Put a little effort into it next time.

  57. Does any state actually issue long form birth certificates any more?

    I keep wondering why this question comes up. No one wlse seems to have to meet these requirements.

    Obama has to furnish a Birth Certificate, Obama and Kerry have to furnish school transcripts, Kerry has to furnish his military file.

    What the fuck does anyone think this is going to prove?

    All I can say is thay IMO if B Hussein Obama is not a citizen, born in Hawaii, he is the beneficiary of a conspiracy on a scale that’s not been seen since JFK was assassinated.

  58. Sorry, but I think you’re wrong here: certifying the vote also involves certifying eligibility. If you’re ineligible to receive votes, then the vote isn’t certified. If Mickey Mouse received 1 EV, the EC wouldn’t certify it because he’s ineligible.

    I believe you are incorrect, TAO. According to the US archives website, the Electoral College certifies the vote:

    “The Certificates must list all persons who received electoral votes for President and the number of electors who voted for each person.”

    There is no mention of certifying eligibility, and the way this reads, if Mickey Mouse got an EC vote, it would be listed on the certificate.

    As to who determines whether a candidate is eligible, states generally control their own ballots, so I think a state could refuse to list a candidate who wasn’t eligible. If that candidate got elected anyway, then I think its a SCOTUS matter. How it gets to SCOTUS, is another question entirely.

  59. and even if he really does want to deploy – he is still just trying to make a point. Obviously the many flag-rank career military people appointed over him have no such doubts – so where does this guy get off? It’s like these people who refuse to acknowledge that certain amendments were actually ratified properly – you have to have standing to make a claim of this sort.

  60. or at least BE SOMEONE…

  61. sure, I was at one point, straightforward and logical, but my irascibility has nothing to do with school. It has to do with weariness of the Merry-Go-Round that arguments go through sometimes, is all. I know, understand and somewhat respect radical skepticism, but come on folks, we have to get with reality here.

    Anyway, OSU as third tier? 😛 I’ll assume you actually know the tiers and were just making a low-rent joke.

  62. I don’t think Ohio State is third tier. I had some students on my staff when I worked at the university (at the supercomputer center, not the law school, but I had students from the latter), and they were pretty bright.

    However, any attorney that graduated from there who capitalizes “The” before Ohio State University, is personally third rate.

  63. As to who determines whether a candidate is eligible, states generally control their own ballots, so I think a state could refuse to list a candidate who wasn’t eligible.

    then I suppose you would have to sue the Secretaries of State in all fifty states.

  64. Since I have studious ignored the Birther movement… even if he wasn’t born on US soil, doesn’t his mother make him a US citizen anyway?

  65. I had some students on my staff when I worked at the university (at the supercomputer center, not the law school, but I had students from the latter), and they were pretty bright.

    This is hardly conclusive proof. For all we know, there are students at Harvard Law who are “pretty bright”. You know, outliers.

  66. “OSU as third tier? 😛 I’ll assume you actually know the tiers and were just making a low-rent joke.”

    My brother-in-law graduated from Northwestern Law. He’s a partner in Christianson et al out in LA. I have to listen to his crap all the time about how he gets pal around with Robert Shapiro. My only revenge is I make twice as much money as he does. His tears taste so sweet. Go Bucks.

  67. Anyway, OSU as third tier? 😛 I’ll assume you actually know the tiers and were just making a low-rent joke.

    It is kind of like if the Detroit Lions were to get a rookie quarterback and that quarterback took them to the Superbowl, or hell, to the playoffs. Would you prefer to be a drone coming out of Harvard Law, banking on the reputation of that school to make your career, or would you rather be the person coming out of a third tier school whose eventual career prominence makes the reputation of that school.

    Anywho, two years of being a paralegal sucked any desire of going to law school right out of me. Liabilities incurred are more than what any rational human being should ever care to be dealt.

  68. Here’s a link on miliary.com:

    http://www.military.com/news/article/anti-obama-gis-afghan-orders-revoked.html

    The lawyer Orly Taitz has apparetly filed a lot of “birther” lawsuits against BO.

    For an enlilsted man if your enlistment contract doesn’t say you don’t have to obey orders if the pres is illegtimate, then you obey orders. The oath you take as a EM says you will obey your officers.

  69. The Constitution mandates the president be a natural born citizen of the US. It does not say the Electoral College decision on who won the election can make that mandate irrelevant or moot. Biden would be president and that would be awesome because he’s a bumbling fool. But mostly because Democrats deserve to have their hero shamed. Just like Republicans deserve the discomfort that came from Pelosi becoming House Speaker in 06.

    We, however, deserve no such discomfort so we have to be happy that the Red and Blue teams continue to abuse each other. Biggest loser in all this would be Hillary who was not able, or did not try, to prove Obama was foreign born when it mattered most, and for that we should all rejoice and snicker.

  70. I have to listen to his crap all the time about how he gets pal around with Robert Shapiro.

    I have an uncle who once was a private dick who had a run in with Shapiro. From his telling, Shapiro wasn’t exactly the shiniest link to come out of the Kosher meat factory.

    Interesting story actually, good chance one of the editors will post a thread relevant enough to make it worth posting some day.

  71. even if he wasn’t born on US soil, doesn’t his mother make him a US citizen anyway?

    No, there are residency requirements* for cases where only one of the parents is a US citizen and because of her age BHO’s mother would not have met them.

    *That is numbrer of years that the citizen-parent lived in the US after a certain age. If I remember rightly it’s five consecutive years after the parent fourteenth birhtday. BO’s mother was only eighteen at the time of his birth, I believe.

  72. As to who determines whether a candidate is eligible, states generally control their own ballots, so I think a state could refuse to list a candidate who wasn’t eligible.

    I’m fairly sure that it is up to the state officials responsible for elections to verify the eligibility of any person who file papers for the office that they are seeking, just as they are responsible to verify that anyone who registers to vote is, in fact, eligible to vote.

    New Jersey did actually allow some third party candidate (for VP IIRC) on the presidential ballot who was not a native born citizen, but I find the possibility that anyone from a major party could get through the vetting process of their own party as well as the state is kind of remote.

    Hell, if the Clinton machine couldn’t get the goods on BHO nobody ever will.

  73. Although I have a problem with people being put on the supreme court based on race & political reliability, it could be a lot worse. There are many extremely intelligent, capable, left-wing jurists who could do much more to sway other members of the court, as well as write very persuasive opinions/dissents.

    Practically, she is about as least-damaging an outcome as one could hope for.

  74. “Kerry has to furnish his military file.

    What the fuck does anyone think this is going to prove?”

    That Kerry is a lying, fucking coward and as such, should have me rammed up his ass.

  75. It’s not that OSU is 3rd tier; it’s that lawyers are third tier:

    1) Most humans and pets
    2) Pond scum and compost
    3) Lawyers, fire ants, cockroaches and bedbugs
    4) Politicians and their appointees

  76. TAO,

    the EC just votes. CONGRESS certifies the votes. The EC doesnt even open them.

    If an EC member votes for Mickey Mouse, then congress throws that vote out.

  77. Don’t blame me, I voted for Optimus Prime!

  78. Judge Sotomayor says “eminent” when she means “imminent,” “providence” instead of “province,” “story of knowledge” instead of “store of knowledge,” and so on. Does the fact that she is a Latina immunize her from attention to that sort of (admittedly not uncommon) foible?

    Plagiarizing Ed Whelan isn’t nice, Hank.

  79. Not to sling any mud, but..

    Zeb said: “You don’t need a birth certificate to be a citizen or to be eligible to be President.”

    The Constitution says: “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”

    Article 2, section 1

    Wow, now that’s ignorance for you.

    RonC

  80. nice post..
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