Immigration

Reason Writers Around Town: Shikha Dalmia on the Restrictionist Crusade Against Citizenship for Undocumented Children

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The anti-immigration crusade to scrap birthright citizenship for the children of undocumented aliens has drawn some surprising allies recently. Among them is columnist George Will, a constitutional strict constructionist, who nevertheless wants to rewrite the 14th Amendment's guarantee of birthright citizenship. Will maintains that if the authors of the amendment had foreseen the problem of illegal immigration, they would never have enshrined this right in the Constitution.

But as Reason Foundation Senior Analyst Shikha Dalmia argues in her latest column at The Daily, by this logic, conservatives like Will should simply tear up the Constitution and start anew. After all:

Would the Founders have written the First Amendment enshrining the freedom of the press if they had known that the Internet would one day allow WikiLeaks to release classified documents and jeopardize soldiers on the battlefield? Or the Second Amendment guaranteeing the right to bear arms in a world of cop-killing bullets? Or the Fourth Amendment's injunction against improper searches and seizures in an age of terrorism? Or the Fifth Amendment's prohibition against government takings of private property when rare species are facing extinction?  

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  1. Among them is columnist George Will, a constitutional strict constructionist[.]

    When he feels like it, of course.

    1. a constitutional occasionally strict constructionist

  2. Will maintains that if the authors of the amendment had foreseen the problem of illegal immigration, they would never have enshrined this right in the Constitution.

    Yeah, that’s definitely a dangerous road to travel down. There are mechanisms in place if aspects of the Constitution need to be changed, other than playing the game of “if they knew about this back then this is what they would have meant”.

    1. Aside from the imagined and real costs of immigrants dipping into our welfare state how would the Founders see anything that the immigrants are doing as any real problem?

      Immigration at the time of the founders was happening at a far higher rate in terms of population growth then it is today. The founders did not seem to mind these huge influxes of unwashed masses.

      Plus the immigrants we were getting in the founders time were far less healthy, far more violent, far more poor, and far less educated. Yet they still had no problem with it.

      As to the problem of immigrants eating up all the welfare handouts I think the Founders would have a pretty elegant solution for that myth. Under their rule there would be no state sponsored welfare.

      1. Actually, quite a few founders did have problems with those pesky immigrants — from Germany, and Ireland, and other such heathen places.

        We’ve got over that, only to have some demonize a different set of immigrants.

        Sigh.

        1. Actually, quite a few founders did have problems with those pesky immigrants — from Germany, and Ireland, and other such heathen places.

          I am sure they did have personal issues. My point was that it is not expressed in the constitution in any meaningful way.

          I mean look at the document. They liked slavery and they put stuff in there to to make sure it was kept. If they hated the immigrants so much why doesn’t the constitution say anything about it?

  3. Would the Founders have written the First Amendment enshrining the freedom of the press if they had known that the Internet would one day allow WikiLeaks to release classified documents and jeopardize soldiers on the battlefield? Or the Second Amendment guaranteeing the right to bear arms in a world of cop-killing bullets? Or the Fourth Amendment’s injunction against improper searches and seizures in an age of terrorism? Or the Fifth Amendment’s prohibition against government takings of private property when rare species are facing extinction?

    The answer to all these questions is yes the Founders would have written them.

    1. And it sounds like Dalmia is push-polling the writers of the Bill of Rights* at that. There’s no evidence that WikiLeaks jeopardized any soldier’s lives or that we live in an age characterized significantly by non-state terrorism…and armed citizens were killing govt agents in 1789 as well.

      * The Founders didn’t want a bill of rights, believing it unnecessary given the strictly limited powers the federal government was given in the document.

      1. The federalists believed that, yes.
        The anti-federalists wanted the Bill of Rights, believing the current constitution made the federal government too powerful and needed a specific guarantee of certain freedoms.

        1. The federalists believed that, yes.
          The anti-federalists wanted the Bill of Rights, believing the current constitution made the federal government too powerful and needed a specific guarantee of certain freedoms.

          This cannot ever be repeated enough.

  4. First of all, it’s not anti-immigration to want to get rid of birthright citizenship. Secondly, the 14th amendment was never intended to give birthright citizenship.

    “Framer of the Fourteenth Amendments first section, John Bingham, said Sec. 1992 of U.S. Revised Statutes meant “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” If this statute merely reaffirmed the old common law rule of citizenship by birth then the condition of the parents would be entirely irrelevant.”

    http://federalistblog.us/2007/…..ction.html

    1. of parents not owing allegiance to any foreign sovereignty

      this clause is meant to keep foreign soldiers or people otherwise employed by a foreign government (spies) from having children here.

      you are thinking that a Mexican couple because they are Mexican citizens they somehow owe allegiance to Mexico or some bullshit.

      No that is not what is meant by owing allegiance….”owning” something is a monetary term. They must be employed by that foreign sovereignty.

      1. “I pledge allegiance to the flag of the United States of America and to the Republic for which it stands…”

        I’m sure Mexico has some kind of Pledge as well.

        1. The pledge is bullshit just as Mexico’s is.

          If any government wants me to “owe” them allegiance then they can write me a check otherwise it is slavery.

          As to the legal right of states to hold its citizens in slavery then I would like to refer you to the thirteenth amendment.

          Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

          The US is under US jurisdiction. If Mexico wants to claim that its citizens “owe” them allegiance on US soil then Mexico can read our constitution and go fuck itself.

        2. Re: Matrix,

          I’m sure Mexico has some kind of Pledge as well.
          Yes, and it’s equally pure bullshit.

          “Oh flag,
          Mexican flag,
          Our heroes’ legacy,
          Symbol of our Fatherland
          and our unity…”

          And other fascist crap. We had to recite it every morning at school. Puke.

          1. You know who else had a Fatherland?

            1. We have a “homeland”

          2. We had to recite it every morning at school.

            We’re really all the same after all.

      2. The foreign sovereignty clause was put into the 14th amendment because the US was under the very real threat by foreign power that had very real interests in colonization of the new world.

        It was not intended to keep regular poeple out.

        1. So, it’s your contention that the foreign sovereignty clause of the 14th amendment is, as written, no longer appropriate, due to changing circumstances not envisioned by the original authors of the Constitution. Fascinating.

          1. He is saying that the clause was put there against the threat of foreign colonial conspiracy, not ordinary migration.

            I expect that he thinks that its rules are still appropriate. Children of neither ambassadors nor occupying armies are citizens by birth.

          2. So, it’s your contention that the foreign sovereignty clause of the 14th amendment is, as written, no longer appropriate, due to changing circumstances not envisioned by the original authors of the Constitution.

            yeah pretty much…i guess if forgin governments started colinizing again and we had threat of colinization then we could use it…so no need to get rid of it.

            But anyway IceTrey is wrong about the 14th amendment. There is no “owning allegiance” clause. So this whole debate is mute.

          3. What the hell? There is no “foreign sovereignty clause” of the 14th amendment.

            And the framer’s intent means diddly squat. I’m pretty sure the First Amendment wasn’t intended by the framers to protect pornography. What matters is the meaning of the language at the time of ratification, period.

            1. What is also odd is that the 14th amendment was not written by the framers…it was written after the civil war.

              But It should be noted that before the 14th amendment there were constitutional cases that did say birthright citizenship was guaranteed by the constitution.

              Wikipedia (if it can be trusted) has a pretty good article on the subject:

              http://en.wikipedia.org/wiki/B…..ted_States

              1. You mean, nobody wrote the Civil Rights Amendments? Quite mysterious.

                1. I think he means Founders, not framers.

            2. “And the framer’s intent means diddly squat… What matters is the meaning of the language at the time of ratification, period.”

              You lost me; those two statements seem to contradict eachother. If you’re talking about the meaning of the language at the time, then that reflects the framer’s intent. If I’m misreading you, I apologize, and I’d appreciate it if you clarified.

              1. The 1776 meaning of, “All men are created equal and endowed by their creator with inalienable rights,” included black people, women, and Native Americans — even if Thomas Jefferson didn’t intend it to.

              2. No, the “meaning of the language” refers to what those words were commonly understood to mean at the time. If the words “arms” no longer refers to weapons at some point in the future, the meaning of the 2nd amendment will not then protect the right to appendages.

                Now, original intent, in the sense that Tulpa is describing, is where you attempt to divine what the authors of a law or amendment was intended to accomplish. E.g., to only include the children of slaves as the supporters of SB 1308 (the Arizona birthright citizenship bill) would have it.

                1. Yeah, that’s a good explanation. I’m not sure what the “contemporary meaning of language” interpretation would be called — is that “literalism”? My knowledge of constitutional interpretation schools is rusty.

            3. I understand the point you’re making now, thank you.

      3. parents not owing allegiance to any foreign sovereignty

        I tend to be in favor of birthright citizenship, because the alternative has a certain aroma of “Ein Volk, Ein Reich . . . “, but I don’t think it is unreasonable to read “owing allegiance to” as “is a citizen of”.

        1. Then why isn’t George will making that argument? Or Ron Paul?

          No they make the argument that the constitution should be changed ie amended because they know what the fuck is meant by “owing allegiance to”.

          What? You think Ron Paul who wants to do away with Birth right citizenship does not know what is written in the 14th amendment?

          1. Then why isn’t George will making that argument? Or Ron Paul?

            I dunno. They didn’t think of it, maybe?

            Maybe there’s some commentary on what was intended by the rather unusual phrase “owing allegiance to” that I don’t know about?

            You did read the first half of my one-sentence post, right?

            1. You did read the first half of my one-sentence post, right?

              Of course and I agree. It is only the second part that I disagree.

              1. Never mind IceTrey is quoting from the Civil rights act of 1866…not from the 14th amendment which reads:

                Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

                There is no “owes allegiance” clause in the 14th amendment.

                1. The “owes allegiance” hogwash originally comes from, I believe, the Wong Kim Ark decision. There is a long and irrelevant discussion of British common law and what people were considered thereunder to be subjects of the king. They had allegiance, they were not the children of hostile foreign forces, etc. Again, it’s all irrelevant as it has no basis in the 14th Amendment.

      4. “this clause is meant to keep foreign soldiers or people otherwise employed by a foreign government (spies) from having children here.”

        Think of it reasonably. A couple visiting from Japan has a baby here. Should that child be a birthright citizen? Should we send out draft registration notices when he is 18? Send out the navy when we believe Japanese law is violating the rights of one of “our citizens”?

        Citizenship comes with rights and responsibilities, and automatically seeking to extend those to the offspring of non-citizens does not make a lot of sense.

        1. A child born to Japanese parents on vacation probably isn’t going to be staying here to take advantage of citizenship. But yes, I think they should have dual citizenship if they want it.

          And we shouldn’t be sending the Navy when a country, consistent with its own laws, acts toward one of our citizens in a way we wouldn’t here. When you enter a foreign country of your own free will you lose coercive US protection from their government.

      5. Are you as dumb as that sounds? If I “owe” you a favor that doesn’t mean I’m in your employ. Owe in this case means to be obligated to. A citizen has an obligation of allegiance to their country. The biggest problem with “subject to the jurisdiction thereof” is that people think it means only “territorial” jurisdiction. But there is also “personal” jurisdiction to deal with. No matter where you are the country of which you are a citizen has personal jurisdiction over you. A Canadian visiting in the US is under the territorial jurisdiction of the US but is under the personal jurisdiction of Canada. Get it? “Subject to the jurisdiction thereof” means the complete jurisdiction, both personal and territorial. Read the link i posted above. I posted it so I wouldn’t have to explain all of this here.

        “In Steel Co. v. Citizens for a Better Environment (1998) the court said “jurisdiction is a word of many, too many, meanings.” Therefore, it is important to discover the operational meaning behind “subject to the jurisdiction” as employed under the Fourteenth Amendment rather then assuming its meaning from other usages of the word jurisdiction alone. Both Sen. Trumbull and Sen. Howard provides the answer, with Trumbull declaring:

        The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.”

        “Sen. Trumbull further added, “It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government that he is ‘subject to the jurisdiction of the United States.'” Sen. Jacob Howard agreed:

        [I] concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word “jurisdiction,” as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now. “

    2. Thank You! Why is it so politically incorrect to say that?

      Immigration is not a right, it’s a privilege, and when someone sneaks into the country that person is committing a CRIME. Can criminals be forgiven? Sure, but they must pay for their crimes first.

      Scholarships for White Students – Racist or Fair?
      http://libertarians4freedom.bl…..hy-is.html

      1. So your ancestors committed a crime? Deportation time, bitch.

        1. Yeah aside from the pure racism of the whole issue I have the nearly equal problem of “If i am not a citizen by birth right then what the fuck makes me or any none native American a US citizen?”

          Do I now have to register for citizenship? Is the government going to make me do some sort of bullshit pledge that according to assholes like Matrix binds me to forever servitude to the state?

          Even if you take away the racist element this “solution” is very problematic in terms of individual liberty and a citizens relationship with the state….and none of it is moving in the direction of liberty.

          1. Presumably, that would be the same citizenship and naturalization process that has historically made non-natives into American citizens. You know, with a test, an oath of allegiance, etc. The “bullshit” process that bound 743,715 new citizens to “servitude” in 2009.

            I really don’t like the idea of tampering with birthright citizenship, but it’s irrational and counterfactual to argue that every control on immigration is “racist” or somehow un-American. It’s not a serious argument.

            1. but it’s irrational and counterfactual to argue that every control on immigration is “racist

              It depends on your definition of racist. The people who support anti-immigration may or may not be racist but the actual movement is racist.

              I guess a comparable to demonstrate what i mean would be growth management land use regulations which i also think are racist.

              Essentially Growth management makes it harder for poor minorities to acquire, own, and hold real property and favors the rich majorities. this can and has been demonstrated by ownership trends. Non-growth management areas have higher minority real estate ownership then Growth management areas.

              Obviously growth management proponents are not themselves racist (or at least the majority are not overtly motivated by racism).

              So just as it is possible to not be a racist and support anti-immigration which is racist it is possible to not be a racist and support growth management which is racist.

              I could probably explain that better if needed…but i really do not want to. I hope you understand what i am saying.

          2. Why are you crying racism. The issue of birthright citizenship would apply just as much to white Europeans or even god forbid CANADIANS!

      2. Immigration is not a right, it’s a privilege…

        Migration from Kansas to Missouri: right or privilege?

        Migrating from inside your house to your place of work: right or privilege?

        1. Migration between jurisdictions is quite obviously a privilege.

          Since KS and MO are both members of a federation whose constitution guarantees free movement between states, then it becomes a right (in the sense of a contractual right, not a human right) for citizens in good standing (ie, it can be taken away after conviction for a crime).

          1. Migration between jurisdictions is quite obviously a privilege.

            It’s not so obvious to me — unless all that “unalienable rights” crap is only so much silly justification for people to rebel against the contractual rights their government was imposing on them.

        2. And furthermore, if you believe migration across national borders is to be treated the same as migration across state borders, then do you favor (a) requiring border checkpoints and background checks, searches of vehicles, etc at state borders, or (b) getting rid of those border checkpoints and procedures at national borders?

          1. Re: Tulpa,
            The answer is:
            42!

            No, it’s (b). Checkpoints are manned by tax-fed leeches, and I don’t want to feed any leeches. Not today.

          2. if you believe migration across national borders is to be treated the same as migration across state borders…

            I did not say they are to be treated the same. I said they are both exercising the same individual right — a right that, like other rights, can be abrogated for specific causes individually applied in the compelling public interest.

            For example, someone who is charged — not convicted — of a crime can be denied emigration from the state. Similarly, someone who is suspected of being a terrorist or criminal can be denied entry into the country.

      3. Re: Gregory Smith,

        Immigration is not a right, it’s a privilege[…]

        “Freedom of movement” is a right, it is an extension of our freedom to act.

        If one migrates from place X to Y, buys or rents a house, honoring a contract, and indulges in peaceful trade/exchange/productive effort, why would it suddenly become a “privilege” to stay in place Y?

    3. Re: IceTrey,

      First of all, it’s not anti-immigration to want to get rid of birthright citizenship.

      I would agree with that as long as it means the person born in the US but not a citizen does not have to pay a single tax.

      Otherwise, the person becomes a slave of the government, in contradiction of the 13th Amendment. Ergo, either he’s a citizen if the gov pretends him to pay taxes, or you can go fuck yourself.

      1. Non citizens who work in the US already pay taxes. If I as a US citizen went to Canada to work I’d have to pay Canadian taxes. Taxation has nothing to do with citizenship.

  5. At Will, as a strict constructionist, recognizes that the 14th Amendment has to be consciously altered through legislative action, due to the circumstances he sees as having changed. Those of us who oppose that alteration can do so via the same mechanisms.

    I’m much more at odds with the brand of “Strict Constructionism” espoused by Bork, et al., who seek to define the Constitution’s limits on government power as narrowly as possible (e.g., the 1st amendment only protects Political Speech, not artistic expression, or potentially even political blogging).

    Of course, I also don’t much care for the loosest sort of “Living Document” theory, when used to selectively interpret the Constitution to support some particular contemporary agenda. There are plenty of good arguments against capital punishment, for example, but I don’t think its being “cruel and unusual” qualifies, either in historical terms or contemporary ones — when polls start showing 60% or more of the public being in opposition to it in all circumstances, maybe there will be a case.

  6. But as Reason Foundation Senior Analyst Shikha Dalmia argues in her latest column at The Daily, by this logic, conservatives like Will should simply tear up the Constitution and start anew.

    Considering that people like Dalmia are generally using the Constitution as a bludgeon against Americans anyway, why is tearing it up and starting over such a bad idea?

    1. Move along, nothing to see here. Just a fascist prick spouting his bullshit.

  7. I’m sure Mexico has some kind of Pledge as well.

    And you’re right. I actually doubted it.

    As for the pledge establishing any status of allegiance though, it doesn’t. A bullshit rote recitation of a vacuous piece of fascist claptrap has no legal or moral status at all.

  8. I understand the arguments against birthright citizenship.

    But I’m skeptical that the founders would have opposed birthright citizenship, or looked kindly on immigration restrictions themselves. At the time, most people were much closer to their “original” immigrant ancestors, and more likely to see birth in the “new world” as a mark of solidarity. Plus it’s not like early America was a ethnically uniform place. They wanted birthright ciritzenship for the same reasons we do now – to ensure that everyone .. french, english, scottish, german .. was ensured equal citizenship. Even if there was less of an issue with private discrimination – equal citizenship across ethnic lines was a key point. “All men are created equal”.

    I think ther’e a decent chance they would have bene horrified if someone came up with law that classified some immigrants as “illegal”, and then denied citizenship to their offspring.

    1. At the time of the Constitution’s ratification, you were a citizen of the US if you were a citizen of one of the states — ie, the definition of citizenship was completely left up to the states. So the Founders/Bill of Rights people had nothing to do with birthright citizenship at the federal level. That was the work of the Radical Republicans who wanted to close every loophole possible to prevent Southern states from denying free blacks citizenship.

  9. I wonder if George has heard a good argument for open borders. He seems so attuned to libertarianism that I find it hard to believe he would reject one of the easier libertarian arguments.

    1. He seems so attuned to libertarianism that I find it hard to believe he would reject one of the easier libertarian arguments.

      A conservative no matter how attuned to libertarianism is still a conservative.

      He probably looked at immigrant voting patterns and threw his libertarian street cred out the window.

      I wonder what he said about immigration when Reagan gave them amnesty?

  10. Whether the founders would have enshrined various rights knowing the extremes we’ve taken them to is a bit beside the point.

    The fourteenth amendment wasn’t written by the founders–it was written to protect former slaves.

    I think the better approach is to look at the big picture–to look at who has what rights and where they come from.

    Our rights don’t come from the government. Immigrants (legal or otherwise) have all the same rights American citizens have–except for the right to vote.

    Denying the right to vote to people who’ve been born here is self-defeating. You can’t discriminate against people and expect them to integrate and identify with the rest of American society. The more people are free to flourish and participate here in America, the more they come to identify themselves and their interests as American.

    Undermining that process is a stupid thing to do unless you want to reintroduce a two class society into American culture. Unbelievably stupid thing to do.

    1. Immigrants (legal or otherwise) have all the same rights American citizens have–except for the right to vote.

      Immigrants have all the same rights American citizens have, period.

      The “right” to vote is not a right. It is an entitlement granted by government on government terms.

      Most believe that it is best offered universally, so it looks at first glance like a right. But, unlike a right, it does not precede and supersede government and, unlike a right, you can only exercise it on particular Tuesdays.

  11. The other side of this is the sickening welfare queen mentality that underlies much of what the anti-immigrant crowds says…

    Being a citizen in the United States of America doesn’t give you a right to a free education, etc. on my dime,but if you listen to some anti-immigrant people, they make it sound like it does. They use resentment against immigrants as if it justifies their own culture of dependency on the state.

    Doesn’t work on Ken Shultz.

    Immigrants don’t have a right to a free education on my paycheck–why should American citizens be any different? You think I feel any better about the money stolen out of my paycheck going to native born, Caucasian welfare queens?!

    Being in the United States gives you a right to liberty and justice, and if that isn’t enough for native born anti-immigrant activists, then they should go move to a socialist country like Sweden.

    That’s one excellent reason to oppose the creation of a new second class of citizens–it undermines the natural shame people in the first class should have when imagining their parasitic state as an entitlement.

  12. This is what happens when an originalist view is mistaken as a constructionist.

    The plain wording seems to support the status quo (though the “subject to the jurisdiction thereof” clause adds a layer of complexity.)

    But what was the original intent? Written following the civil war to make sure blacks born in the U.S. would be treated as citizens under the law, the admendment’s principle author, Jacob Howard, had this to say during its debate:

    “Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”

    He seems to be of the opinion that the amendment excludes persons born in the U.S. who are aliens.

    My ideal is an extremely liberal immigration policy, but unlike the natural right of migration, citizenship is a privilege. There are many unintended consequences of our current anchor baby interpretation of the 14th amendment.

    1. That quote has been covered ad nauseum. I could try and explain it to you, but why bother when MikeP did so eloquently in another post on immigration.

      “I am persistently surprised by people quoting this as though it means that foreign residents’ children are not citizens when it so clearly says that they are.

      Here, let me write it clearer for you, replacing commas with dashes:

      This will not, of course, include persons born in the United States who are foreigners — aliens — who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.
      Does that make it more obvious what he was saying? Feel free to offer a different way to diagram this sentence so it has the meaning you ascribe to it. You need to explain the lack of an “or” before what appears to me to be a qualifier on “foreigners” as well as the wildly inclusive final phrase.”

  13. Every time some Mexican, Salvaodorean, Dominican, or other undesirable pops out an anchor baby, Michelle Malkin’s panties twist up a bit tighter.

    And we should all be happy for that.

  14. The root of this problem isn’t immigration, it’s the welfare system. How is denying citizenship to children of illegal immigrants going to fix the problem? This just seems like another example of targeting the symptoms instead of the actual cause (i.e. big government).

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