Originalism

Justice Story on Originalism and Judicial Independence

An old argument against "flexible and changeable interpretation."

|The Volokh Conspiracy |

A few days ago, looking for something else, I happened across this section of Justice Story's Commentaries on the Constitution. Story defends the independence of the judiciary based on something that sounds surprisingly like originalism. Some particularly interesting passages highlighted:

§ 1609. The argument of those, who contend for a short period of office of the judges, is founded upon the necessity of a conformity to the will of the people. But the argument proceeds upon a fallacy, in supposing, that the will of the rulers, and the will of the people are the same. Now, they not only may be, but often actually are, in direct variance to each other. No man in a republican government can doubt, that the will of the people is, and ought to be, supreme. But it is the deliberate will of the people, evinced by their solemn acts, and not the momentary ebullitions of those, who act for the majority, for a day, or a month, or a year. The constitution is the will, the deliberate will, of the people. They have declared under what circumstances, and in what manner it shall be amended, and altered; and until a change is effected in the manner prescribed, it is declared, that it, shall be the supreme law of the land, to which all persons, rulers, as well as citizens, must bow in obedience. When it is constitutionally altered, then and not until then, are the judges at liberty to disregard its original injunctions. When, therefore, the argument is pressed, that the judges ought to be subject to the will of the people, no one doubts the propriety of the doctrine in its true and legitimate sense.

§ 1610. But those, who press the argument, use it in a far broader sense. In their view, the will of the people, as exhibited in the choice of the rulers, is to be followed. If the rulers interpret the constitution differently from the judges, the former are to be obeyed, because they represent the opinions of the people; and therefore, the judges ought to be removable, or appointed for a short period, so as to became subject to the will of the people, as expressed by and through their rulers. But, is it not at once seen, that this is in fact subverting the constitution? Would it not make the constitution an instrument of flexible and changeable interpretation, and not a settled form of government with fixed limitations? Would it not become, instead of a supreme law for ourselves and our posterity, a mere oracle of the powers of the rulers of the day, to which implicit homage is to be paid, and speaking at different times the most opposite commands, and in the most ambiguous voices? In short, is not this an attempt to erect, behind the constitution, a power unknown, and unprovided for by the constitution, and greater than itself? What become of the limitations of the constitution, if the will of the people, thus inofficially promulgated, forms, for the time being, the supreme law, and the supreme exposition of the law? If the constitution defines the powers of the government, and points out the mode of changing them; and yet, the instrument is to expand in the hands of one set of rulers, and to contract in those of another, where is the standard? If the will of the people is to govern in the construction of the powers of the constitution, and that will is to be gathered at every successive election at the polls, and not from their deliberate judgment, and solemn acts in ratifying the constitution, or in amending it, what certainty can there be in those powers? If the constitution is to be expounded, not by its written text, but by the opinions of the rulers for the time being, whose opinions are to prevail, the first, or the last? When, therefore, it is said, that the judges ought to be subjected to the will of the people, and to conform to their interpretation of the constitution, the practical meaning must be, that they should be subjected to the control of the representatives of the people in the executive and legislative departments, and should interpret the constitution, as the latter may, from time to time, deem correct.

§ 1611. But it is obvious, that elections can rarely, if ever, furnish any sufficient proofs, what is deliberately the will of the people, as to any constitutional or legal doctrines. Representatives and rulers must be ordinarily chosen for very different purposes; and, in many instances, their opinions upon constitutional questions must be unknown to their constituents. The only means known to the constitution, by which to ascertain the will of the people upon a constitutional question, is in the shape of an affirmative or negative proposition by way of amendment, offered for their adoption in the mode prescribed by the constitution. The elections in one year may bring one party into power; and in the next year their opponents, embracing opposite doctrines, may succeed; and so alternate success and defeat may perpetually recur in the same districts, and in the same, or different states.

§ 1612. Surely it will not be pretended, that any constitution, adapted to the American people, could ever contemplate the executive and legislative departments of the government, as the ultimate depositories of the power to interpret the constitution; or as the ultimate representatives of the will of the people, to change it at pleasure. If, then, the judges were appointed for two, or four, or six years, instead of during good behavior, the only security, which the people would have for a due administration of public justice, and a firm support of the constitution, would be, that being dependent upon the executive for their appointment during their brief period of office, they might, and would represent more fully, for the time being, the constitutional opinion of each successive executive; and thus carry into effect his system of government. Would this be more wise, or more safe, more for the permanence of the constitution, or the preservation of the liberties of the people, than the present system? Would the judiciary, then, be, in fact, an independent co-ordinate department? Would it protect the people against an ambitious or corrupt executive; or restrain the legislature from acts of unconstitutional authority?

An ensuing Twitter discussion questioned whether Story was really an originalist avant la lettre, or whether he's just participating in the debates of his time, in a way that sounds originalist to modern ears. I don't know enough about Story to know if this is an anachronistic reading. But the views expressed here certainly sound originalish to me. He says our Constitution isn't "an instrument of flexible and changeable interpretation," but "a settled form of government with fixed limitations"—one that sets out rules for its own alteration, and that makes no legal provision for changes outside these rules. That seems quite compatible with a view that our law is the Founders' law, as lawfully changed.

Story's legal theory was connected to a political theory. His discussion of "the deliberate will of the people" reminds me of Bruce Ackerman on dualist democracy, or maybe it should be the other way around. (Though Story is pretty skeptical of constitutional moments "inofficially promulgated.")

Now, maybe the Constitution isn't really the true expression of the Popular Will, any more than currently-serving presidents, governors, or legislators are. But Story could be all wrong on his politics while still being right about the widely shared assumptions that have shaped our legal system. Judicial independence makes some sense if judges are supposed to be apolitical experts, applying a shared body of technical knowledge; it makes less sense if they're supposed to have their ears to the ground, Divining the Spirit of the Age. And it also makes less sense to elect a wide variety of legislators, governors, or presidents, each to a specific job, and then say that the winners get to rewrite their job descriptions after the election is over.

A system based on written law always throws up procedural roadblocks to change. Even if every member of Congress actually favors a given tax hike or spending cut, legally nothing is supposed to happen until they actually take some votes. And no matter how many Americans might want to alter our system of government, legally nothing is supposed to change until that desire is expressed in a "solemn," formalized way. There are some real downsides to these roadblocks, but some real advantages too.

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  1. Interesting, aside from the comma diarrhea. I especially like the distinction between “the will of the people” and “the deliberate will of the people”. I had never thought of that description, and it sounds so good that I think I need to steal that a few times.

    1. How pendantic can you get? Judging his writing by modern style?

      Thank God none of us will ever write anything consequential enough to survive for 2 centuries and be subject to grammatical review by someone momentarily undistracted by cat pictures or a flame war.

  2. Blowhards riding transient political passions to achieve simple majorities to increase their power is exactly how historical democracies, or anything remotely like it, falls Ancient Rome, ancient Greece, 1930s Germany, Venezuela a few years back.

    That is the primary lesson to learn from history.

    Any politician who decries limits on simple majority rule (often decrying supermajority-created rules that deliberately placed said limits) is nothing more than a scam artist, or a fool whistling past the graveyard, trying to drag us all into danger.

    1. A quibble over one of your historical analogies:

      “Blowhards riding transient political passions to achieve simple majorities to increase their power” is not how the Roman Republic fell.

      Instead, try an entrenched oligarchical elite, concerned only with their own status and power, totally indifferent to incompetence and corruption in their ranks, more interested in destroying their opponents than governing. I don’t deny the Populares were part of the problem, but it was the Optimates who were blundering right up ’til the end.

      1. “Instead, try an entrenched oligarchical elite, concerned only with their own status and power, totally indifferent to incompetence and corruption in their ranks, more interested in destroying their opponents than governing. ”

        Sounds like today and the people responded with Caesar, ah, I mean Trump.

    2. “(often decrying supermajority-created rules that deliberately placed said limits)”

      The supermajoritarian rules in the US were not created by super majorities.

  3. The “deliberate will of the people” is overrated. What if the majority deliberately decides that they can own and enslave the minority? This has happened quite a lot in history, and may happen again.

    I would hope that a written constitution is more than “Popular Will” – it should provide some (admittedly imperfect) protection against tyranny of the majority and due process for those unlikely to be well-served by majority rule.

    1. So you support the deliberate will of some elite self-selected very small minority guided by, one supposed, you — over the deliberate will of a majority?

    2. All democracies must by definition have limits. A democracy that bans voting ceases to be a democracy. That has nothing to do with many supermajority-protected freedoms in the US. You can have a democracy that quarters soldiers. There are many democracies that have gun control, or less free speech than the US. I’m generally in favor of more individual freedom than less. But your example is unhelpful. It’s also ahistorical since slavery was one of a tiny list of things the ratifiers tried to preserve by banning even supermajority amendment to the institution.

      1. All democracies? My understanding is tat the Founding Fathers rather expressly wanted to avoid creating a democracy. Instead they created “a Republic, if you can keep it”. And ever since, we have been trying not to do so.

        1. “My understanding is tat the Founding Fathers rather expressly wanted to avoid creating a democracy. Instead they created “a Republic, if you can keep it”. And ever since, we have been trying not to do so.”

          America is a democracy and a republic. This insistence that those are two different things is a lie your high school teacher told you. See here.

          You are right that the founders were soft on democracy, since they extended the right to vote to a fraction of the population. Thankfully we did not keep the shit heap that the founders created. For example, we added some rather important amendments several years after Franklin’s quip. And later we started treating black people and women like fully fledged human beings.

  4. What this thread needs, is someone to come along and post a couple very long and didactic comments about “the Sovereign” and how it applies.

    1. mad_kalak, your comment fills me with quiet happiness. My efforts have not been in vain. It shows you have understood the concept of sovereignty, and recognized that this is an appropriate instance to use it as a critique. Congratulations!

      1. I understood the concept of the Sovereign quite well before you, and thus I know how you misapply it on a cosmic scale, which led to the tongue-in-cheek joke. I am glad it reached my intended audience, even if it may (or may not) have had the intended effect.

  5. My eyes usually gloss over when I read “the will of the people.”

    (Relatively) recently we’ve gone from George Bush to Barack Obama to Donald Trump as presidents.

    If anyone can find “the will of the people” in that chain, then definitely please let us know what it is.

    1. I mostly agree. The president is the only politician who is authorized to act for the entire nation as a single actor, and the process of picking him is nothing but a series of compromises that don’t reflect the will of the people.

      The “public good” is what the ruling coalition at the time says it is, but that said, for all the public’s ignorance and apathy and contradictory desires (low taxes and lots of services), certain forms of judicious public polling can indeed say that the “will of the people” is, or at least what the majority wants.

      1. Also, is “the will of the people” simply what the latest election says it is or is a long-term trend?

        I believe it’s the long-term trend towards progress.

        The history of the US has been one long trend to more freedom for more people (e.g. women and blacks can vote, SSM, environmental awareness, etc.).

        Sure there have been set backs, and it’s not a linear trend.

        But we are moving in the right direction.

        1. The long term trend, and what you read of it, depends quite a bit on how one defines progress. “Freedom”? Freedom from what?

          I will agree, that it has been movement towards individual rights at the cost of majoritarian interests, and often to the detriment of the entire society. Not sure how you lump more environmental awareness as “freedom” especially when it’s an issue that cuts across all ideologies and is more due to scientific advances leading changes in perception than anything else.

          And Rev, don’t even reply to this, I’m just going to tell you to f*ck off preemptively.

          1. “Freedom from what?”

            Slavery.

            1. Slavery wasn’t mentioned.

              1. I thought it was safe to assume you weren’t asking him about “Freedom from what” that he mentioned (voting rights for blacks and women, SSM, etc.).

                Tell us how you measure progress, so we can judge whether progress is trending upwards by your standards. If you have a metric that does not incorporate the elimination of chattel slavery, voting rights for women/blacks, or SSM legalization, I think your metrics are probably wrong. Fair point re: “environmental awareness” although if I’m being as charitable to apedad as possible, maybe he’s just saying we know more about the cause/effect in environmental decay and this allows us to solve problems like pollution, contamination, etc. Reasonable minds can maybe disagree about the optimal extent of deforestation, but I don’t think people believe it’s socially useful for a company to inadvertently kill people because it is simply unaware that dumping some substance in the water harms others.

                1. All democracies? My understanding is tat the Founding Fathers rather expressly wanted to avoid creating a democracy. Instead they created “a Republic, if you can keep it”. And ever since, we have been trying not to do so.

                  1. Oh, Hell. My iPad does its thing again. This was a response to a previous post. See above. My iPad has a mind of its own,
                    Now, as to NtoJ above, I note your virtue signaling, but I gauge progress differently. Perhaps by looking at how power is concentrated in the central government. In an exchange with a local columnist shortly after Trump was elected, I reminded him that for years the Conservatives had warned that Liberals were creating a powerful government that they dared not to turn over to the opposition. How right I was.

                    1. “Now, as to NtoJ above, I note your virtue signaling…”

                      Praising an end to slavery is now “virtue signaling”. What a miserable fucking person you must be. Stop using a phrase you do not understand. If you are looking for an actual example of signaling, consider a person who would without solicitation remind himself how right he was about about a topic unrelated to what he’s commenting on.

                      As to your idiotic measure of “progress”, maybe you should think more critically about any metric that promotes mid-90s Somalia as a paragon.

                2. I define progress as Eudaimonia, or human flourishing. That our lives are continually being unburdened by preventable sickness and early death, with increased leisure, which has come entirely at the hands of scientific advances and free market capitalism constrained within limits by just ordered societies.

                  1. Well, from that definition I’m having a hard time understanding why you think the long term trend is anything but positive.

                    1. Because, it is possible, as we are now experiencing, to have scientific advances but cultural and economic decay. Moreover, women having the vote, for one of the examples mentioned, has nothing to do with the cause of the increased human flourishing.

                    2. I don’t see this ‘cultural and economic decay” you speak of.

                      Maybe you could be more specific.

                      As to women voting, it seems to me that that, among other things, it has the benefit of making our politics more responsive to ways of helping women “flourish.” It also creates a more just society.

                    3. “Moreover, women having the vote, for one of the examples mentioned, has nothing to do with the cause of the increased human flourishing.”

                      What does “cause” have to do with it? The issue was whether progress had been made. Equal rights for women did cause increased human flourishing but, even under your strange definition in which it doesn’t, you can still consider it an output of increased human flourishing. Or are you going to come out and say that women acquiring the right to vote is no evidence of increased human flourishing? (If so, are you in the Taliban?)

                  2. A bunch of science was done before capitalism and democracy was a thing, you know.

                    I love science. A lot. Lots and lots. But making it your sole lodestone of success doesn’t seem right. Art, leisure, lack of conflict all seem like important additional metrics.

                    1. Yea, sure. Science is great, we agree on something. But you guys miss the part where I say a just ordered society allows for human flourishing. I mention nothing about democracy.

          2. My response is a practical one, mad_kalak . . . people like me replacing people like you in our electorate.

            Choose reason, education, tolerance, modernity, science, freedom, and inclusivity. Avoid ignorance, backwardness, superstition, bigotry, authoritarianism, insularity, nonsensical dogma, and pining for ‘good old days’ that never existed. Or you lose, at least in America.

            1. In the new America you propose, which may or may not occur depending on the status of our borders and if abortion remains legal so people like you kill their offspring, when you tell people to f*ck off (because their opinion isn’t wanted) do they do so? Or in this New America (kinda like New Coke) does everyone have diarrhea of the mouth?

              1. Getting stomped in the culture war is making you cranky, mad_kalak.

                How could borders and abortion could turn the tide of that culture war after more than a half-century of liberal-libertarian progress?

                I encourage you to try to accept defeat with some dignity.

        2. While it’s true that in the twentieth century in the United States there “has been one long trend to more freedom for more people,” that wasn’t true for much of the rest of the world. It’s hard for any century to top the horrors visited on the world during the twentieth. Maybe there is a long term arc bending toward justice but I doubt it. I don’t enjoy believing that as a species we are essentially insane and that the seeds of our destruction are within us but I do believe it. Do material progress and technological advances help to keep this insanity in check? Maybe but they also allow us to kill each other with greater efficiency.

          So, moving in the right direction? I wish I could believe it. So far into the twenty-first century the world still has a sort of Pax Americana but how long will that last? The nukes are still out there and Armageddon has to not happen every minute of every day, but only has to happen once.

          1. The doomsday clock is at 2 minutes to midnight! That’s the closest we’ve ever been to doom! We’re all going to die!

            Why don’t you take a stab at answering questions. Whatever you mean by “Pax Americana” when do you think it will end? Tell us what that would look like. Do you predict a nuclear war in the next 5 years? 10? What, in your view, is the likelihood of a world war matching our last one in terms of casualties, within the next 100 years? Do you put it at 90%? 9%?

            The doomsayers are incapable of seeing progress because they redefine evidence of progress as simply the calm before the impending storm. 850 million Chinese people escape from extreme poverty from the 1980 to 2015, that’s just 850 million more people who will die horrible deaths in the nuclear winter. No progress to see here.

            1. Forty million people died in WWI, sixty million in WWII, many tens of millions murdered by communists before and after WWII. I’d say that points to a certain level of insanity. Sorry I just don’t buy this arc of the moral universe business.

              As I said maybe prosperity and technological and scientific progress will put a lid on the insanity, maybe not. I don’t think that recent history gives us any reason to say one way or the other. As to nuclear holocaust I admit that I have been amazed ever since I was thirteen (some 60 years ago) when it dawned on me that it had to not happen countless times and only had to happen once. How many times since the major powers have been nuked up has it come within an ace of happening? More times than any of our leaders are ever willing to admit I’m sure.

              I don’t spend my time worrying about what I can’t control and because I can’t control events it’s not important what I believe. But this was just a philosophical discussion and I sincerely hope that you and apedad are right and I am wrong.

      2. I recall a senate vote to send a balanced budget amendment out in the early 1990s. One powerful, beclowned senator, literally made a tear-stained speech about how evil it was to thwart the will of the majority by limiting spending.

        That’s right. How horrid the will of the simple majority be overriden by the will of the same people as supermajority.

    2. Mencken explained it well:
      “Democracy is the theory that the common people know what they want, and deserve to get it good and hard.”

      But really it’s not that hard to explain, they go back and forth between the parties so no one has uninterrupted power long enough to make their changes too permanently. And every president since Carter has been handicapped, either from the beginning or by the end of their term, by one or both of the houses of Congress flipped to the opposing party. That’s not accidental.

  6. Originalism — still younger, and less popular, than Kim Kardashian.

  7. The sections that are quoted are from Volume III, Chapter XXXVIII “The Judiciary – Importance and Powers of.” It does not seem surprising that a Supreme Court Justice, particularly one who greatly admired Chief Justice Marshall, would forcefully defend the position of the judiciary in the constitutional scheme.

    If the question is whether Story resembles contemporary Originalism then I would think a better place to look would be Volume I, Book III, Chapter V, “Rules of Interpretation of the Constitution.” Even a cursory reading of that section should be enough to cast doubt that Story’s interpretive philosophy comports with contemporary Originalism. The implications of his rules are an expansive national government that would possess the energy needed to address new situations and problems. This may have been ideal when the new government was first getting started, but the contemporary Originalist is interested in pushing back against the administrative state, not supporting its growth using the views of those who were originally serving on the Court!

    “§ 422. But a constitution of government, founded by the people for themselves and their posterity, and for objects of the most momentous nature, for perpetual union, for the establishment of justice, for the general welfare, and for a perpetuation of the blessings of liberty, necessarily requires, that every interpretation of its powers should have a constant reference to these objects. No interpretation of the words, in which those powers are granted, can be a sound one, which narrows down their ordinary import, so as to defeat those objects. That would be to destroy the spirit, and to cramp the letter. It has been justly observed, that ” the constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specification of its powers, or to declare the means, by which those powers should be carried into execution. It was foreseen, that it would be a perilous, and difficult, if not an impracticable task. The instrument was not intended to provide merely for the exigencies of a few years; but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen, what new changes and modifications of power might be indispensable to effectuate the general objects of the charter; and restrictions and specifications, which at the present might seem salutary, might in the end prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require.” Language to the same effect will be found in other judgments of the same tribunal.”

    Then you get into some serious problems with Story’s view of language in general, and the fact that the public differs in the meaning it ascribes to the text of a constitution:

    “§ 406. … Opposite interpretations, and different explanations of different provisions, may well be presumed to have been presented in different bodies, to remove local objections, or to win local favour. And there can be no certainty, either that the different state conventions in ratifying the constitution, gave the same uniform interpretation to its language, or that, even in a single state convention, the same reasoning prevailed with a majority, much less with the whole of the supporters of it. In the interpretation of a state statute, no man is insensible of the extreme danger of resorting to the opinions of those, who framed it, or those who passed it. Its terms may have differently impressed different minds. Some may have implied limitations and objects, which others would have rejected. Some may have taken a cursory view of its enactments, and others have studied them with profound attention. Some may have been governed by a temporary interest or excitement, and have acted upon that exposition, which most favoured their present views. Others may have seen lurking beneath its text, what commended it to their judgment against even present interests. Some may have interpreted its language strictly and closely; others from a different habit of thinking may have given it a large and liberal meaning.”

    1. Describing the methods of the Marshall/Story Court, or other courts of the time, as “originalism” is a category mistake.They did what judges do, have always done, and can’t avoid doing, make s**t up when the answer isn’t clear — as will almost always be the case when a litigable issue gets all the way to the Supreme Court. Story’s actual practice, like Marshall’s, is scattered throughout early volumes of the U.S. Reports. It is a mish-mash of sometimes inconsistent methods, with no discernable methodological hierarchy, cobbled together for the occasion and supported, often as not, by ipse dixit. I do not say this as criticism, but because I believe that nothing else is even possible, and, if it were, lawyers don’t have in their toolboxes anything that can help them do competent “originalism.” When people who do have those tools set them to working on some concrete problem, the usual result is to prove that the meaning of the provision in question was fundamentally contested back when and whichever meaning we chose to give it is a choice dictated by something else.

      1. Hmm. Mr Justice Black proclaimed that “the Constitution means what we say it means”. Mr Justice Douglas added, “I would rather make precedent than follow it.”
        Sounds to me like the SCOTUS has long since cut itself free from the shackles of the Constitution.

        1. The shackles aren’t as tight as some people think they are, and never have been. Doesn’t mean anything goes, but there is no such thing as a method that produces clear, correct, and constrained answers to the kinds of questions that end up in court.

  8. Originalism is a new concept, but only because it was required to be created as distinct from the (relatively) modern position of judicial activism we saw from roughly the ’30s through the early ’80s (Hughes through Warren, respectively). Its adherents still persist in academia and the judiciary, but the Supreme Court is starting to constrain itself in recent years (since the early 00’s or so) and restrain it’s legislative efforts.

    Before judicial activism became commonplace “originalism” was just “judicial reasoning.”

    Ultimately, it’s the progressives that broke the system and it will take getting progressives out of government to fix it again. I’m not sure that’s a reasonable expectation, so we have to live with our super legislature and fight against the progressive fascists using the tools available.

  9. Don’t forget judges like Posner, who believes that whatever he decides is the will of the people.

    Also don’t forget the following kind of will of the people enforced by bloodshed.

    “That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”

    1. anorlunda joins mad_kalak, and offers another accurate originalist critique. Banner day.

      That quote, by the way, is the very heart of the original meaning of the Declaration of Independence. It was a document to declare a new sovereign, and even a new principle of sovereignty. All the blather about how the DoI was meant to proclaim rights results from an anachronistic reading of what came just before, read backward in time from the perspective of the Bill of Rights, which had not yet been imagined.

    2. “That to secure these rights” — wiping away constitutional protections against demagogues, as modern (and ancient) demagogues are wont to do, is hardly securing those rights.

      It’s amazing how many listen to that paragraph and have “vox populi vox dei” as the takeaway.

  10. “If the constitution defines the powers of the government, and points out the mode of changing them; and yet, the instrument is to expand in the hands of one set of rulers, and to contract in those of another, where is the standard?”

    You tell me, Joseph, your part of the government has done its share of expanding and contracting the Constitution.

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