Supreme Court

The Conservative vs. Libertarian Take on the U.S. Constitution

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"We're seeing profound disagreements among conservative legal activists over what the Constitution means," explains Reason Magazine Editor Damon Root. "One of the things we are seeing are conservatives and libertarians disagreeing."

In a new video created by the New York based nonprofit 92nd Street Y, Root argues that where traditional conservatives prefer a powerful state built to preserve settled norms, libertarians are more aggressive in striking down laws that infringe on personal freedom. "There is a small island of government power and it's surrounded by a sea of individual rights. That's the libertarian view and I think that is the correct view."

Approx. 2:40 minutes

For more on this topic, read Conservatives v. Libertarians: The Debate Over Judicial Activism Divides Former Allies (Reason, July 2010). To receive automatic updates when new stories go live subscribe to ReasonTV's YouTube Channel.

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126 responses to “The Conservative vs. Libertarian Take on the U.S. Constitution

  1. Federalists vs. anti-federalists, in a way?

  2. OT: http://espn.go.com/

    But was it Daniela Hantuchova doing?!

    1. *what

      And probably NSWF, even though it’s ESPN.

  3. I’m off to pay $100 for a permission slip to buy drugs, bye everyone!

    1. If you’re married, you had to pay money for a permission slip, too.

      It’s so bad, you need a permit to swing a dead cat.

  4. “There is a small island of government power and it’s surrounded by a sea of individual rights. That’s the libertarian view and I think that is the correct view.”

    A small island of federal government power, yeah. I don’t see where the Constitution puts up a lot of barriers to the states doing whatever the hell they want to, even if it is non-libertarian.

    1. Your point is well taken, but I can think of one exception. The First Amendment says “Congress shall make no law”. The Second says simply “Shall not be infringed.”. To my mind that would mean that neither Federal, State, nor Local governments have the authority under the Constitution to do ANYTHING that would make it more difficult for citizens to obtain military grade infantry weapons (I think you can reasonably argue that ‘bear’ plus the reference to ‘militia’ indicates that protected weapons should be limited to infantry weapons that are normally carried and used by a single soldier).

      No licenses. No permits. No taxes. No gun control of any type. Period.

      And no talking with Gun Control Advocates until they are ready to talk about what kind of amendment to the Constitution they envision.

      I’m not really all that attached to guns, but I fear a government that thinks it gets to redefine the Law at whim more than I fear my neighbors.

    2. That’s where irony comes into play. With the Court’s use of the 14th Amendment to apply some of the Bill of Rights to the states, they’ve at least begun to form an ocean around the Australia sized island representing the power of the states.

    3. Theoretically the federal government remaining within it’s limits would mean it would be easier to move to a state that is more liberty oriented. If I can just jump from MD to NC, because NC is freer than it would be prove harder for MD and others to retain populations.

      On another note, the US constitution wasn’t designed to prevent state level abuse, merely federal, while enabling a stronger defense and a better economy through freer trade.

      1. It was amended to prevent state-level abuse in 1868.

  5. You don’t have to read the constitution to know that it says no butt sex.

    1. That’s a state-level matter. In Utah, it’s forbidden. In California, it’s mandatory.

      1. My wife says it’s in the constitution.

        1. Like having to go to major national monuments to get birth control?

          1. The giant Washington Phallus seems the logical dispensery.

        2. No, your government sticking it to you is in the constitution.

      2. Reading the constitution is forbidden in Utah y mandatory in Cal.?

    2. You just made my day 🙂

  6. I think libertarians probably value the Declaration of Independence more than the Constitution, at any rate.

    1. I hope not… Valuing a declaration of war over the foundation of a free state?

      1. Actually, it was just a declaration of independence. The British were perfectly free to say “well, if that’s how you really feel, I guess we should go our separate ways.”

        1. Haha, right… And when we declared war on Japan, they could have just surrendered sovereignty right away :p Fancy pants political scientists today would call it a “Unilateral Declaration of Independence” which, unless the parent state is a failed state, is essentially always a declaration of war.

          1. Only because some people feel entitled to put their boots on others’ necks. Sometimes, when a spouse is being mistreated and decides to leave their abuser, the abuser feels they have the right to engage in a vicious assault to keep their property spouse in line. Doesn’t mean their view is backed up by any sane concept of justice.

            1. I’m not saying anything against the declarations (or battered spouses leaving for that matter o.0); As a matter of fact I usually have a knee-jerk support of separatists. Just saying that even as libertarians, we should probably value the constitution more closely than the declaration.

              1. I absolutely don’t. Read No Treason by Lysander Spooner and the things Patrick Henry said against the Constitution.

                I wish we’d kept the Articles of Confederation.

                1. Me too. DOI is some good philosophizin. Constitution was just the Hamiltonian/evil Camel’s Nose gettin up under the tent. They gave it a good n informed effort and all, but they underestimated the way evil mother fuckers can play with words to fuck our freedom.

        2. Worked for Czecho and Slovakia.

          Of course, it damn well wasn’t going to work with 18th Century England.

    2. I think libertarians probably value the Declaration of Independence more than the Constitution, at any rate.

      Not this one. If we actually complied with the Constitution, this would be a libertarian country. We would still bitch about it being not libertarian enough, of course, like the True Scotsmen we are(n’t).

  7. I’m not sure Root has it right here. His characterization of the conservative view sounds a lot more like the “progressive” view. My take is that the major difference between conservative and libertarian interpretation has to do with stare decisis. I know it’s one of the big splits between, say, the opinions of Scalia and Thomas.

    1. Conservatives are just progressives in a different colored suit.

    2. I have to agree with you that Root has gotten this wrong. I don’t know *any* conservatives who have that view of Federal government power. Even when they oppose something like gay marriage, it is usually a mix of reasons, but primarily one of not wanting their money used to support something they think is morally wrong. Which is not the same as what Root seems to be suggesting. When Conservatives want to impose their moral perspectives, they almost always want to do it locally, at the state level–and we all know what the Constitution says about that. So, forgive me for thinking that Root is a bit confused on this matter.

      1. I guess technically advocating for a constitutional amendment banning gay marriage is working within a limited constitutional framework. But as a rule one shouldn’t trust theocrats to see the virtues of limited power if they get their hands on it.

        1. If the “theocrats” ever get their hands on unlimited federal power, you can thank the left-wing fascisti such as yourself for putting all the levers within reach.

          1. Theocrats have never seemed terribly bothered by the First Amendment, regardless of liberal constitutional jurisprudence on other matters. If they get hold of power I doubt they will look to liberals for permission.

            1. I’m quite sure you have nothing in the way of evidence for that statement, but no matter. They won’t need permission by time you fascists get done stripping away the last remnants of the limits on federal power.

              If theocrats ever did do what you claim, it was at the state level and thus limited in scope. Thanks to the newly-omnipotent Central State, they’ll get to do it at that level now.

              1. Notice he never blames his Team, which shoulders at least half of it.

                But that’s Tony for you. Loyal minion to the Fuck You, That’s Why State.

                1. Notice that he bristles at the thought of “theocrats” rising to power, yet insists on complete the State having complete “democratic” control of everything. If I didn’t know better, I’d think Tony has some vague idea that he has rights that shouldn’t be violated.

      2. I agree. I think what he’s doing is comparing Republican politicians with libertarian principles, which is not fair to conservatives. There is a pretty big gap between what conservatives would like and what they vote for. Meanwhile, libertarians hardly ever get anyone elected so they get to compare their unelectable principles with what everyone else settles for?

  8. Jefferson was brilliant but he did lose the limited vs. activist government debate, and he was totally unable to implement his initial theories when he was president.

    No new modern government would use the US constitution as a model in drafting a new one. Without denying its historical importance and brilliance, it is just outdated and can’t cope with current realities, as is evidenced by our current federal government, which is run by corporate interests and politically dysfunctional. Even Jeffersonians would require that the constitution provide for “common defense” against private power centers such as large corporations. Even though the constitution is not in fact as limited as Jefferson or libertarians would have wanted, it’s clearly not capable of handling that kind of threat, ironically largely thanks to the supposedly nonpolitical judicial branch.

    1. In Jefferson’s time corporations were mostly under State not Federal control and most States put great restrictions on them in return for their limited liability status and other privileges granted.

    2. Interesting. I hear this from thoughtful liberals all the time. So, for instance, how would you reword the interstate commerce clause?

      1. Thoughtful liberals would replace the notion of semi-independent and largely autonomous states with provincial governments that answer directly to Washington, so the question would be moot.

      2. I don’t know, but as a general principle government should have regulatory powers over commerce within its jurisdiction and any commerce should be under some government’s jurisdiction. I believe capitalism should be seen as one of many tools in society’s toolbox for promoting certain social ends, not as an end unto itself.

        1. Mussolini couldn’t have said it better, Tony.

          1. Not really. I’m simply advocating Democratic sovereignty over any nondemocratic private power centers.

            1. Aka, the Corporate State, your feeble attempts to put smiley faces on it notwithstanding.

              1. No, the democratic state. The corporate state is what libertarians exist to provide the philosophical justification for.

                1. “Corporate” =/= “corporation”

                  The omnipotent Central State will be (and is, as we see now) a hive of corporate corruption, all courtesy of the one-stop shopping set up by the Left.

                2. All these years here sockpuppet and you still don’t understand what libertarianism is about.

              2. Actually, you’re advocating for Brutus’ Mussolini reference; you’re just afraid you’ll tip Obama’s hand on his plans for a second term.

            2. You mean bureaucratic sovereignty, with some nominal democratic checks on the use of state power.

              1. Relax, ant1sthenes, every two years you get to cast a vote that represents 1/600,000th of 1/435th of 1/2 of 1/3 of the federal government.

                Now THAT’s power!

                1. How much more power do you think you should have?

                  1. How much more power do you think you should have?

                    I think I ought to be able to run my own life unless I do some aggressive, provable harm to someone else. I think I should be left to bargain for what I get from others, in terms of wages, products or services. I think I should be able to dispose of my property in much the same way.

                    Is there something wrong with that?

                    1. Nope, only your limited ability to appreciate exactly how much your interactions actually do affect noninvolved parties. Avail yourself of any public resource, even to the extent of stepping up to the sidewalk in front of your house (and even prior to that–drinking a glass of water or using electricity) and you’re involved with your community.

                      Even supposing there were some practical way of negotiating for these services individually, the principle remains that you share the planet and its resources with others, and share with them some common stakes.

                      Your individual sovereignty ends where someone else’s begins, and that distance isn’t as big as you think it is.

                    2. “Nope, only your limited ability to appreciate exactly how much your interactions actually do affect noninvolved parties.”

                      So… we shouldn’t be able to run our own lives. Fuck, just come out and say it, Tony. You’ll feel better.

                    3. So… we shouldn’t be able to run our own lives. Fuck, just come out and say it, Tony. You’ll feel better.

                      Except in one respect. Can you guess what that might be?

                    4. Your individual sovereignty ends where someone else’s begins, and that distance isn’t as big as you think it is.

                      Insofar as when I draw breath, it debars others from taking that same breath, what I do affects others. But it does not harm them. Nor does my glass of water. Air is necessarily problematic, but I’d have no qualms about bargaining for the water, electricity or any other good. My use of them does not harm anyone.

            3. I’m simply advocating Democratic sovereignty over any nondemocratic private power centers.

              So, majoritarian totalitarianism, then?

              1. No Dean for about the millionth time.

                1. Oh, don’t be coy, Tony. You’re for what Dean outlined. Just ‘fess up already.

                  You’re as bad as the rightest of right-winger control freaks. Just in your own way.

                2. No Dean for about the millionth time.

                  I don’t see a lot of limiting principles in your loathsome political philosophy, Tony. Exactly where are the boundaries of the State in Tonystan?

                  1. The boundaries of the state exist in law itself, such as in a constitution. But if 99.9% of the people wanted to do something I don’t see how you justify letting the .1% get its way. To what arbiter do you appeal?

                    1. I’d agree it’s Constitutional. If 99.9% want something that is outside of what said Constitution permits, then the 99.9% can seek to amend the document.

                      That said, what’s in Tony’s Constitution?

                    2. I favor a global governance in which resources are strongly controlled and managed and individual civil rights strongly enforced. Libertarians favor natural selection with a few collectively paid-for armed men protecting those who own stuff.

                    3. “Civil rights” are a sad joke when resources to exercise them is “strongly controlled” by the State.

                      “Everything within the State, nothing outside the State, nothing against the State”

        2. “but as a general principle government should have regulatory powers over commerce within its jurisdiction and any commerce should be under some government’s jurisdiction.”

          No and no.

          1. You sure about that 2nd no? Really there is no true stateless commerce since there is by definition no legal framework for such a thing. Even rudimentary forms of commerce always come with rudimentary forms of rule enforcement.

            1. Why do such “rudimentary forms” require government? Why can I not simply decide for myself if the farmers milk is worth buying, and for how much? He and I will follow all of the necessary “rudimentary forms” namely, price.

              Why do you hate Human Liberty, Tony?

              1. He’s a Leftist.

      3. “No state shall have the power to impede, throttle, tax, or restrict the free flow of goods and services between the several states.” Or what ever legalese words will limit the CC to this narrow power.

    3. You don’t have to even go as far as Jefferson’s ideas on the Constitution. Madison, Jay and Hamilton – all of them the “big-government” guys of the day, all had a vision of the federal government that is a tiny fraction of the Leviathan we have in place today.

      Most of the wealthy and successful jurisdictions of the world are relatively small and homogenous. It’s not the mega-states that bring about harmony and prosperity, but the small and decentralized ones.

    4. “common defense” against private power centers such as large corporations

      The federal government dwarfs even the wealthiest and most powerful private corporation.

      1. Not only that, but no private corporation has the legal power to imprison or kill you, nor to decide to do so. No private corporation can draft you into its army to go die in some faraway and irrelevant shithole like, say, Vietnam, on its whim.

        And the government isn’t subject to competition, either. You can’t tell the government that you’d rather pay your taxes to someone else, whose products and services are better.

  9. “There is a small island of government power and it’s surrounded by a sea of individual rights. That’s the libertarian view and I think that is the correct view.”

    In actuality: there is a small caldera of individual rights in the middle of an active Volcano.

  10. “Even Jeffersonians would require that the constitution provide for “common defense” against private power centers such as large corporations.”

    I’m sure that if McDonalds launches an armed invasion of the U.S., we’re covered. But please, continue to twist the meaning of words to support your pernicious agenda. Your persistent intellectual dishonesty makes it easy to disregard anything you say.

    1. Corporations don’t generally take up arms but they can and do pollute common natural resources and force bad social outcomes.

      1. Sure. But the term defense is clearly tied to the notion of military threats and large-scale organized violence, not to elevated cancer risks. Don’t abuse language.

        At any rate, Jeffersonians would be dealing with a federal system, so the fact that Washington lacked a certain power would not mean that the system overall lacked that power.

        1. If Washington doesn’t have the power, no one does.
          If you don’t want something done by the government, you don’t want it done at all.
          Not giving is taking.
          Freedom is slavery.

      2. “Bad social outcomes”

        I’m sure Tony can’t define that, but he knows it when he sees it.

        1. It doesn’t have to be totally subjective. Take McDonald’s for example. Everywhere it starts popping up people start getting fatter. People getting fatter is arguably a bad social outcome.

          It is possible to measure things such as health, education, even happiness. Capitalism can create bad outcomes. And people should be free to demand better outcomes. What libertarians fail to grasp is that reducing state power tends to mean nonstate entities see their power increase. I don’t like any form of tyranny, including the tyranny of the outcomes of laissez-faire capitalism.

          1. If it’s “arguable,” isn’t it subjective?

            And what if people weigh the merits of being fat vs those of enjoying Big Macs and decide being fat is okay as long as they can get the Big Macs? Isn’t a happier populace a good social outcome, even if it offends your dainty sensibilities?

            1. Yes. People should be free to make such choices. But as far as government’s stake in general welfare, health should probably take priority over Big Mac-derived happiness.

              1. The right hand giveth, the left hand taketh away.

                The government has no stake in what I decide to do to myself. None. I do not exist for the sake of the State.

              2. Really, Tony? Think about that for a second. Isn’t it a fact that homosexuality causes increased risks of certain diseases? Should government’s stake in general welfare take priority over sexually derived happiness? If Big Macs can be banned for their health effects, what else can be banned? Just the stuff you don’t like? It doesn’t work that way.

                You don’t get it that however they are viewed now, homosexuals are the first to get fucked when the government attains the kind of power you envision.

                1. “Isn’t it a fact that homosexuality causes increased risks of certain diseases?”

                  No.

                  1. Even you know that’s bullshit.

                    AIDS could well have been relegated to an insignificant epidemic if your health gestapo would have confined around 100 gay men and Haitians from New York bath houses and Miami sex clubs and incarcerated them in quarantine sanitoriums as was done with TB.

                    1. And how many billions have we tossed into the AIDS bucket in the past 30 years? Seems like a perfect reason to regulate sexual behavior under a Tonyreich.

                    2. We’d have to start with the 90% of AIDS cases that are heterosexuals.

                    3. Did you know that 87% of statistics are made up on the spot?

                    4. [We’d have to start with the 90% of AIDS cases that are heterosexuals.]

                      Not at first. Even the CDC documented the first carriers were Jimmy Carter Haitians, and when the virus was first isolated isolated it was contained amongst the Miami boaters and NYC bathhouse fairies, less than 100 in total. Had they been quaranteed it likely would have stopped there, aside from an occasional monkey fucker.

          2. Oh, and I have yet to be tyrannized by a corporation. In fact, they seem to spend all day, every day, trying to persuade me to interact with them. Government seems to spend all day, every day issuing me directives with which I must comply or lose my wealth and/or liberty.

            I know which I prefer.

          3. verywhere it starts popping up people start getting fatter. People getting fatter is arguably a bad social outcome.

            Maybe people get fatter as they get more prosperous, and McDonald’s start popping up where people are getting more prosperous?

            But, mainly, I want to hear how McDonalds is “forcing” this bad social outcome.

            1. The French have no desire to get fat, yet they are getting fat, coincident with the emergence of McDonald’s, etc. But getting beyond the specific case, it’s perfectly legitimate for any corporation to exchange its state-sanctioned existence and state-given benefits for some terms and restrictions.

              1. So if the French don’t want to get fat and they hate McDonald’s, why on Earth do they:

                A) Eat at McDonald’s at all

                B) Eat there so frequently that it is making them portly?

                You post makes no sense. Imagine my surprise.

                1. He’s obscuring the truth of his argument through vagueness of language — if I understand his true meaning correctly, he is saying that some French people (likely, but not necessarily, the elite) do not want other French people (likely, but not necessarily, the underclass) to get fatter.

                  1. You guys suggesting that some French do want to get fat?

                    Why would anyone want to get fat?

                    1. Everything else being equal, people probably don’t want to get fat (I know of at least one exception to that), but given the well-known consequences of eating Quarter Pounders on a daily basis, it’s obvious Frenchmen are making the decision that the happiness they get from eating the QPs outweighs (pun intended) the unhappiness of the extra poundage.

                      What you want, Tony, is to substitute your value judgement for ours. It’s none of your fucking business.

                    2. All I’m suggesting is that, contrary to libertarian Romanticism, not all choices are as free as you think they are.

                    3. Do you have some evidence that the French are being coerced into chowing down on McNuggets?

          4. God damn you are an idiot Tony. I know we say that a lot, but holy shit.

            Freedom is not tyranny, no matter how you try to spin it.

          5. fuck off slaver

          6. “It is possible to measure things such as health, education, even happiness. Capitalism can create bad outcomes. And people should be free to demand better outcomes.”

            Utilitarianism: the philosophical trick by which evil is called “good”.

            1. Capitalism: not the definition of good.

              1. It definitely allows people to make stupid choices. It also makes them take the consequences of those choices. As it should be.

                You claim societal harm for those consequences, thereby giving yourself the power to control the choices.

                Like I said, Mussolini couldn’t have put it better.

                1. Collectivism: not the definition of good, either.

                  1. Oh, but it does bring about the greatest good for the greatest number…of those in the ruling class.

                    One thing you do have to say, though, is that you don’t see too many North Koreans suffering from obesity brought on by excessive Happy Meal consumption.

    2. You fool, McDonalds lacks the technology to launch an armed invasion of the US. Now Apple or Microsoft on the other hand…

  11. Government isn’t even a needed concept in Libertarianism or natural law.

    See http://www.Libertarian-Institute.org for the work being done by Libertarians specifically in law/rights issues, with a new win every weekday now.

    1. The guy draws a giant circle including everything anyone described as “conservative” might want from govt, then draws a tiny circle around a subset of libertarians, setting up a useless strawman fight.

  12. I think his analogy is a poor one. First off the Constitution does create a balance between individual rights, states rights and federal authority. The main difference I see between Conservatives and Libertarians are on social issues. The ones that come to mind are abortion, gay marriage and drug laws. I believe Libertarians have it right on the drug laws, but are missing key points on the other two issues. Gay marriage is an attempt to create a right that never exisited before, it is unlike slavery or womans sufferage as these were results not of discriminationbased on behavioral choices but gender or race. Homosexuality is neither, so insisting that it be accorded the same rights as marriage is to create a right based on behavior and nothing else. If anything I think the more consistent position there would be to treat it the same as drug use, not to prohibit the behavior. As for abortion, the question to me is based on ‘when does the unborn have rights’? That’s an arguable question and in my view only has three truly definable answers, at conception, when the fetus become viable or at birth.

    1. at conception, when the fetus become viable or at birth.

      I vote for when he can get a driver’s license.

    2. Rocky, I presume you’re straight, if not, adjust the following gendered words appropriately: Do you believe that you could choose to have a sexual relationship with a person who was the same sex as you? Could you love (Ag?pe) and marry that person, if the law allowed? If the answer to these questions is no, is restricting same sex marriage really about rights based on behavior, or is it more like laws which used to prevent interracial marriage based on people’s “ickiness” response? Now, from a Libertarian perspective, does it really make sense to limit marriage based on sex?

      1. Insert joke here about marriage having nothing to do with sex.

    3. In a sense, Canada is a libertarian paradise considering the first two issues and not very terrible on the third.

      Since the last abortion law was struck down in 1988 by the Supreme Court as unconstitutional, there’s no abortion law in Canada. One can get one up to the last day of the pregnancy (if she’s able to pay for it and can find a doctor to perform it) and nobody really cares. Yeah, there was a protest walk the other day in my hometown against abortion… and no one really cared about that, either. Even the current Conservative govt. isn’t stupid enough to reopen the issue.

      Same-sex marriage is legal since 2005; there was some opposition to it from the Conservatives, but not enough to force the reopening the issue when the Conservatives formed a (minority) govt. and again, no one really sees any political advantage to push the issue.

      There’s no “War on Drugs” in Canada per se, but it isn’t a libertarian wet dream, either. Which makes sense if someone knows that instead of “life, liberty and pursuit of happiness”, here the watchwords are “peace, order and good government”.

    4. So you’re against property rights, as they have nothing to do with innate characteristics and entirely to do with choices people make?

      1. If he were against property rights, he’d be a Democrat.

    5. Homosexuality is neither, so insisting that it be accorded the same rights as marriage is to create a right based on behavior and nothing else

      Marriage between a man and a woman is a created right based on behavior and nothing else.

  13. A warning from a life long Manhattan resident. While this offering will be met with agreement by libertarians, DO NOT trust the source. The 92stY is a Judeofascist (leftist) organization. They are trying to get in your good graces.

  14. How about we sink that small island?

  15. It’s true some Conservatives, including some self described Tea Party Conservatives are not going to want to touch us with a barge pole. I don’t care much for Sarah Palin but I did agree with her 100% when she said the GOP would be making a great mistake to ignore or shut out the Ron Paul Conservatives and other Libertarian-minded factions.

  16. raditional conservatives prefer a powerful state built to preserve http://www.lunettesporto.com/l…..-3_22.html settled norms, libertarians are more aggressive in striking down laws that infringe on personal freedom. “There is a small island of government power and it’s surrounded by a sea of individu

  17. Root argues that where traditional conservatives prefer a powerful state built to preserve settled norms, libertarians are more aggressive in striking down laws that infringe on personal freedom. “There is a small island of government power and it’s surrounded by a sea of individual rights. That’s the libertarian view and I think that is the correct view.”

  18. Tony really thinks the only way for humanity to flourish is to give the Right People more and more power. If (when) they fail, you just put in Righter People.
    The problem is that he has a very specific view of what humanity flourishing looks like, and he is not pleased that his grand future is non spontaneous.
    It goes like this:
    Future should be like this- won’t get that way on its own- it needs people who think like me to get it there- few broken eggs along the way is totally worth it.

    1. squirrels ate my arrows.

  19. Conservatives what to bring the bible into it. The talk about the constitution only when it serves their purpose.

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