Constitution

"Electing Good People Isn't Enough"

Talking with Mark Meckler about using an Article V "Convention of States" to amend the Constitution to limit government size and growth

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Mark Meckler, a California attorney, started his political activist career as a co-founder of Tea Party Patriots in 2009. He's since come to believe that national policy changes to shrink the expense and overreach of the federal government can be best—and likely only—achieved via an Article V convention to amend the Constitution.

Last month I interviewed Nick Dranias, running an alternate version of a project to call for an Article V convention under the name "Compact for America." Here's how I described the basics of the Article V process:

Most of us are familiar with the way the Constitution actually has been amended in the past—via 2/3 votes of both houses of Congress followed by ratification by ¾ of the states. But Article V says there is another way: "Congress…on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments" which again have to be approved by ¾ of the states. The "shall" is interpreted by many legal scholars to mean that Congress has no real say in the matter at that point: if the states ask them to set up that convention, they legally must.

Meckler is running a distinct project to convince 34 states to pass resolutions to convene such a convention under the name Convention of States. Meckler believes a sea change in the governing philosophies of the Supreme Court (shifting from any consideration of the Founders' original intent, a change he thinks started dominating about 115 years ago) as well as Congress and the executive branch make severe structural changes via amendment necessary to rein in government's size, scope, and expense.

Meckler is proud of public support for his notion from a range of conservative and libertarian-leaning figures, from talk radio host and bestselling author Mark Levin to Sarah Palin to Tom Coburn, including libertarian law professor Randy Barnett and conservative law professor Robert George at Princeton University.

Senior Editor Brian Doherty interviewed Meckler by phone earlier this week about the project's progress and why we can't count on the federal government to rein itself in. Following is an edited transcript of that conversation.

Reason: What problem are you trying to solve with the Convention of States project?

Mark Meckler: The Constitution acted upon and interpreted by the Supreme Court and Congress and the president is systematically, dramatically different [from what the Founders intended], with the Commerce Clause being the best example. The Commerce Clause was meant to be narrowly designed to regulate interstate commerce, and we now think of that as meaning the regulating of business or trade. In 1787 it specifically meant the shipment of goods.

That power was meant to be narrowly construed to regulate the shipment of goods across state lines, so the Constitution gave the federal government the power to deal with [interstate shipment of goods].

But over the last 115 years, that clause has been interpreted so broadly as to justify huge swaths of federal legislative power. [One thing that could come from Article V convention] is that we could redefine [the Commerce Clause] so that it means what it was intended, literally change the language so it says power to regulate the shipment of goods across state lines.

Reason: Some of the things you are trying to achieve via the Convention of States have been conservative and libertarian movement goals for a long time. What made you decide the Article V approach was best?

Meckler: It was primarily seeing the results achieved or not achieved by the conservative and libertarian movement. The best example is the Reagan administration. One of the things he said he'd do is eliminate the Department of Education. But the structural behemoth is too difficult to move and the department ended up growing. You put a guy like Reagan who was professing conservative and libertarian beliefs but government moves in the opposite direction. Electing good people isn't enough.

I come from a Tea Party background. I found [there] a great desire for some sort of plan, what to do to really fix things. It was a natural evolution from there. We screamed and yelled and protested and it felt good and met like-minded folk which was exciting as the media denied we existed. We did political action, went to work for candidates and donated and canvassed and did standard political stuff and in 2010 we saw the biggest swing in the majority in the House since 1938. But as far as actual government change, almost nothing.

For me that was a signal that maybe that was not the best approach. [Tea Party] folks went local, at the local and state level more was accomplished, but at the national level, we saw little change. Now I'm not a Republican, but we see them win the Senate in 2014 and again, we see little change in the direction [of smaller government]. I had left the Tea Party in February 2012; I felt the organization I helped found was slipping into the same old political morass about raising money and what was accomplished in my opinion wasn't much

I got introduced to the idea of an Article V convention, ended up doing reading on it and crossed paths with Lawrence Lessig at Harvard. He advocates it and he's a progressive, but he believes as I do that government has spiraled away from control of the people. I cohosted a conference [on the idea] with Lessig [at Harvard Law School in 2011]. At the time I didn't have much historical knowledge so my position was mostly neutral. [After being convinced of its merits by Mike Farris of the Home School Legal Defense Fund and chancellor and founder of Patrick Henry College in Virginia] I adopted the Convention of States as a project of [my organization] Citizens for Self Governance.

The history of Article V is important. George Mason [at the first Constitutional Convention] pointed out the flaw, that Congress had been given the right to propose amendments but not the people through the states. He asked a rhetorical question, are we so naïve as to believe that if the federal government becomes a tyranny that it will propose amendments to restrain its own tyranny? Madison's notes reflect there was no debate and the vote [to include that power to call an amending convention for the states in article V] was unanimous.

Reason: Unlike other Article V movements like the Compact of the States approach pushing merely one balanced budget amendment, you want to restrict the convention the Convention of States proposes to one general overarching subject rather than one amendment. [The subject is defined on the Convention of States FAQ as "for the purpose of limiting the power and jurisdiction of the federal government."] Explain exactly what you want the Convention of States to accomplish.

Meckler: Our first subject matter is fiscal restraint, which is broad enough to include any balanced budget amendment, spending caps, [but the specific shape should be hashed out in] debate meant to take place at the deliberative event [the convention itself].

The second is to limit the jurisdiction and scope of the federal government. 66 percent [in some polls] say it's too big and does too many things. Our third subject matter is term limits, 80 percent of Americans say we should have term limits, and Congress won't propose an amendment to limit its own terms but we the people can do it through Article V. [Term limits are] another area of broad consensus, like balanced budget amendments, and helps build broad consensus [for an amending convention].

We [as an organization] generally stay away from [proposing] specific amendments [that the Convention might consider in pursuing its subject goal]. What I hear on the streets, not in political circles but from regular folks, [is a desire for an amendment saying that] any bill [out of Congress] can only be about a single subject. People understand the problem legislators face with huge omnibus bills on dozens of subjects. Many in Congress are forced to vote for something bad to get something good. Another amendment I hear broad support for is term limits for the federal judiciary, including the Supreme Court.

Reason: How far along are you toward the goal?

Meckler: 38 states have introduced resolutions [that need to be passed by both houses, but not signed by governors] and they have passed in Georgia, Florida, Alaska and 10 days ago we added Alabama. I think it's certainly much easier in states that are Republican controlled to get passed, but that's less about ideas than about the public intellectuals who support it.

For Democrats, if they go to the website and see Levin and [Glenn] Beck and [Sean] Hannity, the reaction generally is, that's something I probably wouldn't like. But as a starting point that's a better place to be since in 31 states both Houses, if you include [unicameral] Nebraska, are controlled by the Republicans.

Reason: The biggest objections I've seen from people who might agree with your goals but not your methods are that a convention called via Article V could become a "runaway convention" and do all sorts of horrible things.

Meckler: That idea has been around for a long time, and if you trace the source of it's generally from the John Birch Society [who Meckler considers a disreputable crank organization whose paranoia about communism has been extended to undue paranoia about an Article V convention]. It's a radically irrational fear. The most important point is the Framers set up a high bar. 38 states will have to ratify any amendment that comes out of the convention. So it takes only 13 states to fail to ratify any amendment, and regardless of your political persuasion, just run the numbers.

Conservatives are worried people might propose [if they ignore the rules set for the convention] things that limit liberty and they have to believe that 13 of the most conservative state Houses would ratify amendments that overturn the Second Amendment or whatever, that's literally absurd and impossible.

Same for folks on the left, if they are worried that conservatives in the convention might propose, I don't know, banning gay marriage, if they believe that could happen in the convention, and they think 13 state Houses wouldn't block that, that's an outrageous presumption. The convention will not [make any amendments stick] that are not accepted by a vast majority of state Houses. [Meckler's detailed arguments against "runaway convention" fears can be examined here.]

Reason: The presidential race is sucking up most of the political oxygen for next year or so; any intersection with that from your project?

Meckler: Huckabee has endorsed the COS specifically. Rand Paul is in favor of using Article V to impose term limits and a balanced budget amendment. Rubio was asked on Hannity about the Convention of States and said he's for anything states can do to take power away from the federal government. [People on] Fox have said recently it's a good question for the presidential debates. I think that's all happened because so many activists are engaged on the issue. We've got 700,000 active people doing things, we have got Facebook reaching over 2 million people.

In some states we've far exceeded our goals [on activist support], some fallen short, on the broad scale we have support from 97 percent of state legislative districts, which is something I never expected to get. In Texas we made it through the House but got stuck in committee in the Senate. There was really nasty maneuvering in the Senate, our folks flooded the state legislature with 20,000 emails in four days, overwhelmed them 15-1 with calls in favor. 

We can build a grassroots infrastructure that's hard to beat but we've also proven some [legislators] don't care; they don't listen to their constituency. It's a good lesson; our grassroots have learned they might have to remove some folks from office. 

NEXT: It Begins! Montana Man Being Prosecuted for 'Hate Speech' and Holocaust Denial

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  1. Absolutely. People used to pray that the next absolute monarch would be benign, but the real answer is to not let anyone have anywhere near that kind of power over you. That goes for our system, too.

    1. At least with monarchs there is a reasonable chance he’ll be a decent person. After all, the royals were raised from birth to rule, they’re selected on the basis of heredity and they had the Sword of Damocles hanging over their head in a way that democratic leaders almost never do. If the absolute ruler were selected by popular elections, it’s virtually assured that he won’t be a good dude. Elections are nothing if not a contest between pathological liars to see who is best at hiding their inner sociopath.

      For all it’s faults, monarchy has been more conducive to property rights and liberty than democracy ever has been. And it unlike democratic rulers, monarch’s authority is at least ostensibly rooted in the auspices of property rights. For a monarch to undermine the validity of the property rights of his subjects, was to erode his own position.

      1. Read Barbara Tuchman’s A Distant Mirror.

        Monarchs, good or bad, invariably crap all over anybody but the nobility. The most the ordinary people can hope for is that they won’t be taxed to death or outright murdered.

        One of the things I find most appalling about the Imperial Presidency is how people who disagree with the person holding the office are invariably accused of what amounts to l?se-majest?.

        1. What do the ordinary people hope for in democracies? That they’ll be allowed to loot those who have more than they do? The trampling of average joe is a facet of statism in general, not monarchy in particular.

          1. To paraphrase Heinlein: The difference between ‘bad’ and ‘worse’ is much sharper than the difference between ‘good’ and ‘bad.’

            Whatever your complaints against the governments of the United States and Western Europe, the difference between them as a group and the state of affairs in Monarchies is like day and night in terms of how the average person is treated.

            1. Now while I may not be sure which Hollywood hits you’ve watched which have told you how life was prior to glorious democracy, surely you’re not supposing that the decentralized monarchies of the past killed more people than democratically elected leaders of modern times…

              1. That’s probably not saying much, given the difference in technology. Plenty of past cultures would’ve been perfectly happy slaughtering on a modern scale, if they had the means.

                In aristocratic systems, the one thing they typically did have was an honor cult, which has some plus sides. People caught doing dishonorable things often suffered in some way for that. . .unlike now.

                1. Ghengis Khan had only technology very basic technology and he killed millions, which is all the more amazing when you consider how few the population was back then. They had the means, but very few ways to externalize costs both morally and economically.

                  Well there is a difference between ‘natural aristocracy’ and the aristocracy imposed by the state. Similar to the difference between a regular business, and a business owing it’s fortune to state force.

                  1. I’m responding to both of your comments in this subthread

                    “surely you’re not supposing that the decentralized monarchies of the past killed more people than democratically elected leaders of modern times…”

                    Not really sure how you would compare the body count, very different time frames, and record keeping is a lot better today, plus the world population is far greater, meaning there’s more potential victims (not to mention technology, which I’ll address below). Also, what exactly constitutes “decentralized monarchy” and why are centralized forms of monarchy excluded from a philosophical debate on monarchy vs. democracy? Over the centuries, monarchies racked up pretty high body counts with all the wars, crackdowns, imperialism, etc. The biggest horrors of modern times generally didn’t happen in democratic states (Stalinist USSR, Maoist China, Khmer Rouge, Nazi Germany, etc.) either.

                    “Ghengis Khan had only technology very basic technology and he killed millions, which is all the more amazing when you consider how few the population was back then.”

                    Ghengis Khan is also known for being perhaps the greatest conqueror in human history. Using him to argue that people could have killed on that scale but usually didn’t in the past is asinine. There’s no disputing the fact that technology (as well as population growth) made mass killing far easier than it was in the past.

        2. Yup. Essentially the only times that monarchs have been “good for property rights and liberty” is when they’ve had to do so to keep from being beheaded.

          1. Essentially the only times that monarchs have been “good for property rights and liberty” is when they’ve had to do so to keep from being beheaded.

            Yeah that’s literally what I said. The Sword of Damocles is ever over their head…

            What do you suppose the average tax rate was prior to the rise of democratic institutions?

            1. “What do you suppose the average tax rate was prior to the rise of democratic institutions?”

              Using the average tax rate as a sole barometer for the status of property rights (let alone liberty in general) is simply a far too incomplete method of analysis. There are so many other relevant factors that could dwarf the importance of tax rates even if it were proven or conceded that taxes were much lower in those days.

              Furthermore, one can’t really ignore the differences in income levels in such a comparison. A 10% tax on income when you make $500 a year is a lot more burdensome than a 30% tax when you make $100,000. A $100 head tax for a subsistence farmer is a lot more significant than a 5% sales tax is on a person living today.

              Lastly, to actually answer the question, I think it would depend. Taxes were actually pretty high in pre-Revolutionary France, at least on people who weren’t clergy or nobles, which was a huge cause of the Revolution in the first place.

      2. “At least with monarchs there is a reasonable chance he’ll be a decent person.”

        Is there? And does him/her being a decent person guarantee a free society?

        “royals were raised from birth to rule”

        “Rule” very rarely meant anything that would coincide with making a free society.

        “they’re selected on the basis of heredity”

        You’re listing this as a positive? Also not all monarchies were/are hereditary, but most are, so point taken.

        “they had the Sword of Damocles hanging over their head in a way that democratic leaders almost never do.”

        I don’t think the fact that the only way to get rid of them is through violent force is a positive at all. Also, that Sword wasn’t necessarily dependent on them behaving in a way conducive to freedom. It very well could be coming from nobles, religious establishments, militaries, etc. if the monarch did not give them enough of what they wanted.

        “For all it’s faults, monarchy has been more conducive to property rights and liberty than democracy ever has been.”

        What the hell are you basing this off of? I’ve seen this claim before, I’m familiar with Hoppe in a general sense, but it’s simply astoundingly wrong. Other than tax rates (which I’ll address below in response to the comment you mentioned it in), what is that based on?

      3. “And it unlike democratic rulers, monarch’s authority is at least ostensibly rooted in the auspices of property rights.”

        When said “property rights” consists of “I have the right to rule over all these thousands of square miles because of who my dad was and/or because God said so” I don’t think that’s a very significant or positive thing. One could far more easily make the case that democracy at least ostenibly being rooted in the notion of consensual governance is much more conducive to liberty than the tenuous connection between monarchy and property rights.

        “For a monarch to undermine the validity of the property rights of his subjects, was to erode his own position.”

        No it wouldn’t, because that’s assuming the monarch recognizes that his subjects have property rights in the first place. When your system is based on the notion that one person is uniquely entitled by right of birth to certain rights, then he/she is not at all forced to respect those rights for others, because they don’t even exist in the eyes of said system. This is also contradicted by the historical record of atrocious protection of property rights by monarchies.

  2. If we are going to have a convention then I want total say over what those amendments are going to be. Otherwise it will be a circle-jerk of positive rights advocates and we will end up with something indistinguishable from the Soviet Constitution.

    1. Or…..I demand to preside over said convention armed with my Saiga 12. That would work.

    2. “Otherwise it will be a circle-jerk of positive rights advocates and we will end up with something indistinguishable from the Soviet Constitution.

      I was going to post something like this.

      Do you really want a Constitutional Convention with Obama, Clinton, Boehner, Feinstein, Brown, Christie, McCain, de Blasio, Warren and the rest of them writing it?

    3. Any amendments would still have to be ratifed by 3/4 of the states and liberals don’t control that many.

      1. It ain’t just Team Blue.

        Do you really want your 4th and 5th amendment rights defined by Mitch McConnell and Joe Arpaio?

        1. A Constitutional Convention is nothing more than an advisory board. It discusses what potential Amendments are put forward for 3/4 of the states to consider. If the states don’t ratify, it ain’t going in the Constitution. Your example presumes that 3/4 of the state legislatures will go along with Joe Arpaio’s ideas. Considering that much of the country thinks Arizona fucking insane on this issue, that seems unlikely.

          1. What’s interesting is that the Constitutional Convention that generated the 1789 Constitution was, in a way, a coup d’?tat. The delegates far exceeded their authority in producing what they produced. That said, the states did ratify it.

          2. Considering that much of the country thinks Arizona fucking insane on this issue, that seems unlikely.

            But support need not be popular. For example, the tremendous population of states like New York and California would earn those populations political culture absolutely no advantage over states like Wyoming or Utah in the ratification process. While most people in these United States may not be inclined to swing conservative, most of the state legislatures would be. For what it’s worth…

    4. Otherwise it will be a circle-jerk of positive rights advocates

      This is probably what it would turn into. When the Constitution was written, there was a general understanding that the purpose of government was to protect our rights and provide those public goods which are not excludable. These days, the prevailing view seems to be that government exists to give us stuff and make sure we never have to worry about anything.

      1. I would highly recommend actually reading and considering the arguments put forward by this guy. He’s actually considered this idea and has a response to it. In my view, his assertion that a Convention can limited to a narrow topic is probably right, and definitely well-documented.

        http://www.conventionofstates……be_limited

    5. We will ratify article 58 specificially due to you comrade. Enjoy Siberia!

  3. How does an apparently mostly rational person like this think a constitutional convention will end up restricting government?

    1. OK, maybe rational isn’t the right word to describe someone who thinks electing good people is a likely outcome of an election.

    2. Yeah. They basically ignore the Constitution as it is. Why would they follow an amended one?

  4. Doesn’t matter. The Constitution will be interpreted to mean whatever the people in power want it to mean, no matter what it says.

    1. I don’t know that this is true. There are all sorts of things that get followed because a failure to do so would go too far. For instance, we’ve yet to see a President just say “fuck it, I’m staying in” when his term ends. I imagine that things like term limits for SCOTUS would have the same effects. Maybe a balanced budget amendment would be ignored. But it would require a brazen disregard of something clearly spelled out, unlike the present situation. That would provoke at least some hesitance to overreach. In general, things are not as bad as many here seem to assume. The 1st Amendment might be violated occasionally, but it’s generally respected. The 2nd Amendment is subject to all sorts of strange rules, but you can still own (at least some) firearms. It’s pretty clear that this constitutional language provides at least some restraints on government. If that’s the case for language which is 200 years old, why wouldn’t it hold true for new language that is in the public spotlight?

      1. I don’t know that this is true. There are all sorts of things that get followed because a failure to do so would go too far. For instance, we’ve yet to see a President just say “fuck it, I’m staying in” when his term ends.

        And that’s determined by the political culture, not the constitution itself. The Soviet Constitution for example, was absolutely full of clearly spelled out restrictions and norms which Soviet leaders didn’t even pretend to adhere to. That’s because the political culture of the Russians and most of the rest of the subjugated soviet countries was rather tolerant of the de facto norms, practices and “laws” of the soviet state.

        1. That’s all well and good and I certainly agree with you about political culture. Are you claiming that Constitutional Amendments resulting from a state-called Convention wouldn’t be subjected to the same constraints? Why would our political culture (which is actually the result of a huge body of citizens with many different political motivations) allow politicians to get away with ignoring newly enacted Amendments when they clearly can’t get away with it (at least fully) on the old ones? That’s what sarcasmic seems to be implying.

          1. Why would our political culture … allow politicians to get away with ignoring newly enacted Amendments when they clearly can’t get away with it (at least fully) on the old ones?

            You are twisting sarcasmic’s argument a bit. His point is that the law will be upheld only insofar as those with power are inclined to uphold it. Saying that it is sometimes upheld doesn’t disprove his point. If they can get away with violating the law, they will.

          2. Are you claiming that Constitutional Amendments resulting from a state-called Convention wouldn’t be subjected to the same constraints?

            US political culture has been pretty damn ad hoc about which constitutional principles they want to give a fuck about. For example, the 2nd Amendment has held up remarkably well all considered, the 4th Amendment meanwhile, is toilet paper.

            Not to mention a state called convention will be populated almost entirely by non-libertarians, mostly pragmatists if we’re lucky, because sometimes liberty is pragmatic. But in all liklihood it will be dominated by a group that has well established power and a never ceasing drive to obliterate the rights and freedoms of their neighbors. Namely progressives.

            when they clearly can’t get away with it (at least fully) on the old ones?

            uhhhh wut? They clearly do get away with a whole lot of deviation.

            1. In a real way, we’re moving away from a written constitution to the Roman/British model, where the constitution is just “traditional laws of the land.”

              1. We’re moving further and further into ‘statutory law’, which is to say, ‘arbitrary law’. We would be lucky if we moved towards ‘common law’ that was brought about various Germanic tribes, the Anglo-Saxons among them.

                Roman law had some traditional aspects, and those were the best aspects, but Roman law’s major failing was the supremacy of statutes and edicts over the ‘traditional law’, if you want to call it that.

              2. In fact without an understanding of ‘common law’, constitutional provisions that mention things like “due process” and “ex post facto” would have no meaning at all.

      2. If that’s the case for language which is 200 years old, why wouldn’t it hold true for new language that is in the public spotlight?

        The Soviet constitution is a prime counter-example. It nominally protected all sorts of rights, including equality of the sexes and races, as well as freedom of speech, religion, and the press. In practice however none of these rights were even remotely protected. Women were treated as inferior to men, non-Russians and especially Jews were treated as inferior to non-Jewish Russians, political dissidents were jailed all the time, the churches were forcibly closed and religious expression was forbidden, etc.

        1. Free Society beat me to the punch. Here’s the 1936 Soviet Constitution translated to English, for reference.

  5. Every single state has already asked for an Article 5 convention.

    1. Pretty moronic to do it on an individual basis when 2/3 are required…

      1. 0 + 0 + 0 + …
        1 + 1 + 1 + …

        Which one reaches 34 faster?

        1. Depends on how many zeroes you have, or so my Keynesian friends tell me.

      2. The Constitution doesn’t give any time line on how they have to ask.

  6. Can’t say more than others have already said. Beyond the fact that “those pooh-pooh-heads over at the John Birch Society” tend to believe a convention could be runaway, Meckler has yet to provide much evidence that it couldn’t. Most of the political class would be delighted to rewrite the constitution in ways that would get rid of any semblance of restraint. And most of the populace would sign off.

    And if, by some miracle, we ended up with the resulting document limiting the power of the government, the same political class would immediately set about reinterpreting it to their own convenience.

    1. Meh. Things are completely screwed up. They will not be resolved by the usual political processes. They will not be solved by any number of Congressional bills. They will not be solved by Executive Orders. They will not be solved by SCOTUS edicts. Beyond that, what mechanism exists for improvement in federal policy? There is none. The federal government will never spontaneously act in such a manner as to limit its own power. Ever. If that’s the goal, another mechanism is required. The state-called Constitutional Convention may not work. But it should be pretty cleared that nothing short of it will work, either.

  7. Can’t say more than others have already said. Beyond the fact that “those pooh-pooh-heads over at the John Birch Society” tend to believe a convention could be runaway, Meckler has yet to provide much evidence that it couldn’t. Most of the political class would be delighted to rewrite the constitution in ways that would get rid of any semblance of restraint. And most of the populace would sign off.

    And if, by some miracle, we ended up with the resulting document limiting the power of the government, the same political class would immediately set about reinterpreting it to their own convenience.

    1. Dead on, Mr. Dalasio.

    2. So we lock and load?

  8. Mr.Meckler thinks that the states could be trusted not to vote for an ill advised proposed amendment. Is he forgetting the 16th and 17th that were passed. The states make up is different today he says. But, who knows what the states makeup would be by the time a convention is called.

    Plus, the impression that ratification is a check on bad amendments from getting passed fails to take into account that the ratification process can be changed,.

    According to the Constitution of the day in 1787, the Articles of Confederation, the requirement was for all the states to ratify the product of the convention. But, thinking they might not get that many, the convention changed the rules about who ratifies (from legislators to conventions) and the required number for ratification from all the states to ?. This is just as they changed the stated purpose. The Articles stated that they were to make amendments to the existing Constitution but they scrapped it altogether and devised a totally new one. This could happen again.

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