Economic Liberty

Scalia v. Epstein—35 Years Later

Revisiting their debate on judicial protection of economic liberty.


At the Federalist Society Student Symposium this weekend, Arizona State Supreme Court Justice Clint Bolick recalled the 1984 debate between then-judge Antonin Scalia and Professor Richard Epstein over whether the federal judiciary should take a more active role in protecting economic liberty. Professor Epstein, as one might expect, argued in the affirmative. Then-judge Scalia (who would be elevated to the Supreme Court soon thereafter) urged greater restraint, suggesting it would be dangerous to unleash federal judges in this way.

The debate occurred at a Cato Institute conference on economic liberty and their respective remarks were published in a little pamphlet, currently available for download on the Cato website.

Re-reading the debate today reveals how much the debate has changed—many more now support Epstein's position than did at the time and the focus has turned from "substantive due process" to the scope of the 14th Amendment's Privileges or Immunities clause—and how much it has stayed the same—there continues to be disagreement on the political Right over whether to urge judicial engagement or judicial restraint.

Here is a taste of Scalia's argument:

we, the judiciary, do a lot of protecting of economic rights and liberties. The problem that some see is that this protection in the federal courts runs only by and large against the executive branch and not against the Congress. We will ensure that the executive does not impose any constraints upon economic activity which Congress has not authorized; and that where constraints are authorized the executive follows statutorily prescribed procedures and that the executive (and, much more rarely, Congress in its prescriptions) follows constitutionally required procedures. But we will never (well, hardly ever) decree that the substance of the congressionally authorized constraint is unlawful. That is to say, we do not provide a constitutionalized protection except insofar as matters of process, as opposed to substantive economic rights, are concerned.

There are those who urge reversal of this practice. The main vehicle available—and the only one I address specifically here—is the due process clause of the Fifth and Fourteenth Amendments, which provides that no person shall be deprived of "life, liberty, or property, without due process of law." Although one might suppose that a reference to "process" places limitations only upon the manner in which a thing may be done, and not upon the doing of it, since at least the late 1800s the federal courts have in fact interpreted these clauses to prohibit the substance of certain governmental action, no matter what fair and legitimate procedures attend that substance. Thus, there has come to develop a judicial vocabulary which refers (seemingly redundantly) to "procedural due process" on the one hand, and (seemingly paradoxically) to "substantive due process" on the other hand. Until the mid-1930s, substantive due process rights were extended not merely to what we would now term "civil rights"— for example, the freedom to teach one's child a foreign language if one wishes—but also to a broad range of economic rights—for example, the right to work twelve hours a day if one wishes. Since that time, application of the concept has been consistently expanded in the civil rights field (Roe v. Wade is the most controversial recent extension) but entirely eliminated in the field of economic rights. Some urge that it should be resuscitated. . . .

As should be apparent from what I said above, my position is not based on the proposition that economic rights are unimportant. Nor do I necessarily quarrel with the specific nature of the particular economic rights that the most sagacious of the proponents of substantive due process would bring within the protection of the Constitution; were I a legislator, I might well vote for them. Rather, my skepticism arises from misgivings about, first, the effect of such expansion on the behavior of courts in other areas quite separate from economic liberty, and second, the ability of the courts to limit their constitutionalizing to those elements of economic liberty that are sensible. I will say a few words about each. . . .

And here is a bit of Epstein's response:

When one compares the original Constitution with the present state of judicial interpretation, the real issue becomes not how to protect the status quo, but what kinds of incremental adjustments should be made in order to shift the balance back toward the original design. On this question, we can say two things. First, at the very least, we do not want to remove what feeble protection still remains for economic liberties. Any further judicial abdication in this area will only invite further legislative intrigue and more irresponsible legislation. Yet recent Supreme Court decisions have tended to invite just that. Second, since courts are bound to some extent by a larger social reality, we cannot pretend that the New Deal never happened. Rather, we must strive to regain sight of the proper objectives of constitutional government and the proper distribution of powers between the legislatures and the courts, so as to come up with the kinds of incremental adjustments that might help us to restore the proper constitutional balance.

Judicial restraint is fine when it keeps courts from intervening in areas where they have no business intervening. But the world always has two kinds of errors: the error of commission (type I) and the error of omission (type II). In the context of our discussion, type I error refers to the probability of judicial intervention to protect economic rights when such intervention is not justified by constitutional provisions. And type II error refers to the probability of forgoing judicial intervention to protect economic liberties when such intervention is justified. This second type of error—the failure to intervene when there is strong textual authority and constitutional theory—cannot be ignored.

What Scalia has, in effect, argued for is to minimize type I error. We run our system by being most afraid of intervention where it is not appropriate. My view is that we should minimize both types of error. One only has to read the opinions of the Supreme Court on economic liberties and property rights to realize that these opinions are intellectually incoherent and that some movement in the direction of judicial activism is clearly indicated. The only sensible disagreement is over the nature, the intensity, and the duration of the shift.

At this point, the division of power within the legal system is not in an advantageous equilibrium. If the judiciary continues on the path of self-restraint with respect to economic liberties, we will continue to suffer social and institutional losses that could have been reduced by the prudent judicial control that would result from taking the constitutional protections of economic liberties at their face value.

The whole thing is a quick read, and it is highly recommended.

NEXT: Is Recycling on the Ropes?

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  1. And type II error refers to the probability of forgoing judicial intervention to protect economic liberties when such intervention is justified. This second type of error?the failure to intervene when there is strong textual authority and constitutional theory?cannot be ignored.

    I very much wanted to see how Epstein thought he could justify that as a matter of original meaning. Unfortunately, the grainy-looking text at the link isn’t legible on my screen. Anyone want to take a shot at explaining to me what “strong textual authority” Epstein thinks there is for an expansive property rights interpretation? And what’s with “constitutional theory,” as applied by Epstein? Does he have stuff Madison and James Wilson didn’t think of?

    1. The eminent domain clause of the 5th amendment says that property can’t be taken for public purposes without just compensation. Typically the courts have read that very, very narrowly, as not applying to any taking that isn’t essentially complete. You can rob the owner of 90% of the uses he formerly had for the property, and the courts will not admit he’s been subject to a taking.

      Then there’s the contract clause, Article 1, section 10: “No state shall … pass any .. Law impairing the Obligation of Contracts” Also read narrowly.

      Both these clauses would seriously constrain economic legislation if read expansively, instead.

      1. Actually, what the 5th Amendment says is that private property shall not be taken for public USE without just compensation. The great error of Kelo v. City of New London was to equate public USE with public purposes. Please don’t compound the error by sanctioning this reading of the 5th Amendment.

        1. I suggest you are begging the question there, Brett. The question is how expansively should your citations be read, and according to what principles. Or, to look at it another way, what in the record of this nation’s constitutionalism suggests to you that much of the meaning of the constitution with regard to property rights was not, on purpose, left to politics by the founders?

          1. Hey, you asked, I answered.

            And, yeah, looks like that was a scanned PDF, not bad for one, but they’re never as good as originals.

        2. I agree with you about that, Dan.

        3. Good point, my bad.

        4. “Actually, what the 5th Amendment says is that private property shall not be taken for public USE without just compensation. ”
          Well then, the strict reading of the constitution has been met, because the land taken has not been put to any USE, it just sits there growing weeds. /snark

  2. I do thank Adler for the bit excerpted from Scalia. For the first time I understand (I think) the mystery of substantive due process. It means due process is overturned if you fail to use the Court’s power of decision to make certain (mysterious and unenumerated rights) substantively constitutional. Did I get it right? Is there a less sardonic way to put it, and still be forthright?

  3. I”d commend as well then Justice Rehnquist’s dissent in Virginia Pharmacy Board, in which he observes that “there is certainly nothing in the United States Constitution which requires the Virginia Legislature to hew to the teachings of Adam Smith in its legislative decisions regulating the pharmacy profession.”

  4. Thank God it was Justice Scalia not Justice Epstein.

    1. Epstein got the better of him in the debate.

      1. That wasn’t my interpretation. How did he get the better of him?

        1. He advocates for a more aggressive judicial role in protecting economic liberties. I will take all the protections I can get. Judges did it before the New Deal. They can do it again.

          1. Well, I sympathize with your position but the problem with that is the lack of constitutional standards to cabin the exercise of judicial discretion. If special constitutional safeguards are needed, then amend the constitution. I don’t think the solution is to rely on judges to amend it themselves via case law.

            1. The constitution is the standard. The safeguards are already there. His book called “Takings” was released in 1985. It is clear that this was on his mind when he had this debate a year earlier. The link below expands on his theory about the role of the judiciary. I recommend you view the entire discussion but for our purposes, you can scroll to minute 41.



      2. Agreed. Not a great fan of him, but he’s right, economic rights have some very real textual basis in the Constitution, and the courts have been neglecting them badly.

    2. Or worse, Justice Barbarino.

  5. Just a suggestion, but courts could significantly improve protections to economic rights if only they took seriously the rational basis test as requiring a genuinely rational relationship between the legislation (or regulation) at issue and a legitimate purpose of government regulation. Patel v. Department of Licensing, a Texas Supreme Court decision is a prime example of this approach. The protection of a politically powerful cartel from competition is not a legitimate justification for government intervention, yet so much of the economic regulation that we see these days has no rational relationship to protecting public health or welfare, or protecting consumers from fraud or abusive practices. Rather, it is the result of rent-seeking lobbyists seeking to insulate a favored constituency from legitimate competition. When Texas bans the online sale of new cars, and requires that only dealers with a physical facility capable of providing maintenance and repair services, that has little or nothing to do with consumer protection and everything to do with protecting the existing automobile dealers who heavily contribute to the political campaigns of legislators. A critical examination of such legislation under a rigorous rational basis test, rather that applying the existing version under which any speculative or purely hypothetical justification will defeat a challenge to legislation, would go a long way in better protecting economic liberty.

    1. Let’s just move on to strict scrutiny.

      1. Seriously, even “strict scrutiny” isn’t particularly strict. “Rational basis” ought to be called “not gibbering insanity basis”.

        1. Let’s treat economic liberty and rights in the same way we treat abortion rights. That would be a move in the right direction.

          1. The Lochner era was a high-water mark for judicial protection of economic liberty. It was not known for being a high-water mark of actual liberty.

              1. Child labor; ridiculous work-weeks; workplace deaths very common.

                Our productivity was great; our workers were ready to trade their freedom to contract for a socialist revolt.

                It was not a healthy time.

                1. That depends on how much one values the one’s personal economic liberty. In the actual Lochner case, it was a voluntary workplan that put the bakers over the hour limit (no more than any night shift nurse today) and that they rested on the job in shifts, and the reason that the hour limits were put into place anyway was as a device to strengthen the Unions. Looking to the courts for succor when you’re not in a union to be able to set your voluntary work hours is a freedom.

                2. re: “ridiculous work-weeks”
                  The plight of first-year associates at big law firms keeps me up at night. I look forward to the “socialist revolt” that will bring them “actual liberty.”

        2. When legislation restricing basic protected rights is motivated by unconstitutional reasons (e.g. sign size restrictions suddenly important because someone is tussling with government) it gets tossed even if the proclaimed reason is reasonable.

          This alone would be a nice change to rational basis. Sorry you don’t get this law if the real reason is hurting some donor’s competition, or making some group happy at the expense of another. I recall some decision where the judge said handing out economic benefits to cronies was the national passtime…as he approved it.

          1. Isn’t that kind of a heavy hand going to put an unworkable inquiry burden on the court?

    2. Dan, don’t you see a problem there? I don’t think you protect separation of powers if you let the courts decide on which evidence legislatures can make laws. Generally speaking, shouldn’t legislatures be empowered to choose their own evidence? And indeed, given that legislatures are political, might it not be the case that they should be empowered to exercise the will of the people even without much evidence at all, so long as they honor enumerated rights and powers? Can you show anything in the Constitution to the contrary?

      Of course there are established broad exceptions to the principle I advocate, in cases where enumerated individual rights are at stake. But doesn’t pushing the question beyond explicitly enumerated individual rights raise the question of where does it end?

      1. Legislators do not exercise “the will of the people”, unless you mean the people willing to make the biggest campaign contributions and spend the most on lobbyists. The average voter pays no attention to what his or her Representative does between elections. Even if they read a news story on some piece of legislation, they will never read the text, and neither will the “journalists” who report on it. If a Representative announces “reform” legislation, the majority of readers will accept on faith that something needed reforming, and this particular piece of legislation will do the trick.

        As to Constitutional limits on the power of legislatures to act, the function of the Constitution was to limit the power of the Federal government. Save for a few specific examples in the Constitution (Article I, Section 10, for example), the people had to look out for themselves in limiting a State’s power through the State’s own constitution. So Federal courts have a more limited role in protecting against a State’s interference with economic liberty, unless it interferes with interstate commerce or violates a specific limitation on state power. As far as limiting the Federal government, a good place to start is to return to a rational reading of the Commerce Clause, which is NOT a “Congress can solve every problem, real or imagined, that has some remote relationship to interstate commerce” clause.

        1. Dan, you tell me what the Commerce Clause is not. Can you tell me what, in your view, it is?

          1. Epstein can answer that question. Just delete the spaces and connect the two lines for the proper link.

            1. Epstein was clairvoyant about DJDiverDan’s views?

              1. Maybe, but he can answer it for you. It seemed to be of interest to you earlier in the thread. Careful though, the print might be too much of a challenge.

      2. “Of course there are established broad exceptions to the principle I advocate, in cases where enumerated individual rights are at stake.”

        Are you suggesting that the Supreme Court was wrong to overturn the Texas law requiring doctors performing abortions to have admitting privileges last term?

        1. They certainly were. The “right” to an abortion is one of the worst judicial usurpations the nation has seen, it ranks up there with the Court spiking the 14th amendment with the Dred Scot case. By judicial imposition, the US is perhaps the most pro-abortion country in the world.

          And, lately, the pro-abortion left has been going nuts. They’re hardly even shying away from open advocacy of infanticide these days. Why shouldn’t they? They know the courts have their back, so they don’t really have to prevail at the ballot box.

          1. lately, the pro-abortion left has been going nuts. They’re hardly even shying away from open advocacy of infanticide these days.

            Considering there are laws against that already, it may not be the pro-choice side that’s going nuts.

            As for the ballot box not mattering, check out how abortion rights still vary from state to state; it still matters.

            1. Yes, laws which don’t do you any good if the state is officially out of the business of looking to see if you obey them.

              1. Except states are. State AG’s love pushing the boundaries of the Constitution when it comes to abortion.

                The judiciary has not ended the debate – as I said abortion rights vary widely from state to state, and that variance depends on the legislature and executive.

                1. SOME state AG’s love pushing one boundary when it comes to abortion, some love pushing the opposite boundary. It’s a mixed bag. But in both sorts of states, the judiciary is pushing the same direction.

                  1. This is true. This is also how the judiciary is supposed to work as an institution.

                    My point is that your bit about ‘They know the courts have their back, so they don’t really have to prevail at the ballot box’ is incorrect – the ballot box still matters.

                    1. It’s how the judiciary is supposed to work if there’s some basis in law for them pushing in that direction.

                      Not when they’ve pulled a ‘right’ out of their asses.

          2. You want to know who’s going nuts on the abortion front, Brett. Take a look at Scott Lloyd, of the federal Office of Refugee Resettlement. Turns out that after being told by a court not to interfere in a case where a minor in his custody requested an abortion, he’s gone totalitarian. He has since then been caught keeping a spreadsheet tracking the girls’ menstrual cycles, and which of them are pregnant, and which want abortions. Can you think of any reason an administrator would do that, except to interfere systematically with requested abortions?

            1. “Can you think of any reason an administrator would do that, except to interfere systematically with requested abortions?”

              He’s a creepy bastard?

            2. Um, to catch it if any of them are victims of (statutory) rape? They’re minors, if any of the suddenly become pregnant then a crime has occurred, and one he could be held partially responsible for.

              1. Just to be clear, you did ask, and that’s what came to mind.

                Tracking their periods seems a bit over the top, but this business of minors being able to get abortions without the adults responsible for them being informed seems deliberately designed to facilitate concealing rape.

          3. Brett, can you say more about, “the Court spiking the 14th amendment with the Dred Scot case.” I don’t understand what that could mean.

            1. Yeah, that was before my morning tea. Slaugherhouse cases, I meant.

              1. The 14th Amendment was also to reverse the Dred Scott case, using some of the same language as the opinion, so they are inexplicably entwined.

          4. “…it ranks up there with the Court spiking the 14th amendment with the Dred Scot case.”

            Could you expand on this? How could the 1857 Supreme Court have spiked an amendment that didn’t yet exist?

            1. NM I see your clarification.

  6. Protecting “economic liberty” is just conservatives using Living Constitutionalism.

    Using the oxymoron “substantive due process” or the amorphous “privilege and immunity” clauses are equally bad.

    If our judges are going to be activists, lets be active in reversing Roe and Baker v. Carr and Gideon v. Wainwright and Oberfell first.

    1. You left out Wickard v. Filburn. Reversing that case wouldn’t be activist.

      1. Yes, that one too.

        Reversing none of those cases would be activist though, they were all Consitutional errors from inception.

    2. Let people vote and have lawyers and who knows what happens next. That’s modern conservatism for you.

      Equal rights for acres!!!

      1. People voted before Baker v. Carr. A Constitution that has one equal house of the national legislature that is not based on population cannot be said to require “one man, one vote”. It was a Court ordered urban power grab.

        Defendants could have lawyers before Gideon. No other right in the Bill of Rights requires the taxpayer to pay. There are not government paid printing presses for low income citizens.

        1. It was a Court ordered urban power grab.
          It was preventing this purposeful disenfranchisement of blacks in Tennessee.

          There are not government paid printing presses for low income citizens.
          You really want to argue that poor people don’t get lawyers? You do see the interest may be a bit more acute in a criminal trial than with a printing press, no?

          Good lord your vision for America is savagely aristocratic.

          1. “purposeful disenfranchisement of blacks”

            A holding that one could not use race to apportion would have been sufficient then.

            “You really want to argue that poor people don’t get lawyers?”

            They have a right to hire a lawyer, just no right to have the taxpayers pay for them.

            Is there any evidence that taxpayer paid lawyers result in better outcomes for poor people? Their lawyers negotiate plea deals but the prosecutors have an incentive to offer the deals even without them.

            1. Race was not the question presented to the Court. Looking narrowly at race would also just allow the same abuse via any one of lots of different doors. If you agree that’s unconstitutional, you can’t cut off the remedy to only explicit targeting of a race, or you’ve solved nothing.

              Is there any evidence that taxpayer paid lawyers result in better outcomes for poor people?
              Who cares about outcomes, I thought we were talking about rights?
              Anyhow, while any stats are going to be horribly sample biased, arguing getting rid of pubic defenders would have no effect is quite a bold stretch. For one thing, I’d be very surprised if prosecutors give the same deals to people new to the system as they do those with context and education.
              I cannot believe you want an America where the powerful get to choose whose votes are how effective, and the rich are the only ones who get lawyers when they get into criminal trouble. Whose vision of the land of the free is that??

              1. “Whose vision of the land of the free is that??”

                The people who wrote it.

                But your framing is faulty, its just not the “rich” that hire lawyers and each state setting its own standards is not the “powerful”. You talk like no liberal legislation ever passed until Baker and a few farmers decided everything. Neither was the case.

                Apportionment is further based on the state constitution which in most {all?} states is subject to citizen initiative. I will note that citizen initiatives and referendums began by the political process, not federal courts.

                You use the federal courts to bypass normal politics because that takes longer and sometimes you lose.

                Rule by federal judges is true rule by the “powerful”.

                1. So you’re dealing with the pre-1865 Constitution, then? Because we kinda had what was almost a second founding after a bit of a scrape about state’s rights and the balance of power between elites and the populous.

                  It’s the rich that can hire lawyers, and state legislators sure are powerful. That sometimes they don’t screw the poor doesn’t mean the Constitution isn’t concerned about such abuses.

                  These things are a one-way ratchet, though. Liberal policies are fine while they last but when the powerful decide to consolidate, you want some institutional protections.

                  Federal judges don’t rule us – your sweeping ideas would work to make that more of the case than now, though.

                  1. “almost a second founding”

                    Yet it took a century for judges to discover these alleged rights.

                    “rich that can hire lawyers,”

                    Plenty of middle class people hire lawyers for criminal cases. They don’t qualify for taxpayer paid lawyers after all.

                    Its a policy decision if taxpayers should pay for lawyers, there is nothing in either the text or the history of the 14th amendment [for those that give that heed] that requires it as a right.

                    “Federal judges don’t rule us ”

                    Federal judges must approve every policy decision now at all levels.

                    If that is not rule, than the word has no meaning.

                    1. Read the drafters of the 14th. They were supposed to find those rights.

                      It’s not a policy decision the make a right operational for everyone, not just a formalism. If you know of a better way to do it, fine. Otherwise, what you want is justice for some.

                      Judges have had right to strike down any policy decision since Marbury. Doesn’t make them rule us.
                      The police can shoot civilians with vastly less consequence than anyone else. Doesn’t mean they rule us.
                      The President can bomb anywhere if he wants, at least for a bit. Doesn’t mean he rules the world.

                      You’re mixing up potential for actual.

        2. “Urban power grab” only because guess what, that’s where people live.

          Allocating representation by acreage is not just a “rural power grab,” it’s insane. The underlying idea, that there is somehow greater virtue in rural life, is ludicrous.

        3. Defendants could have lawyers before Gideon. No other right in the Bill of Rights requires the taxpayer to pay.

          Originalism at its finest.

          We are not allowed to learn anything.

          1. I am not an originalist, I am a textualist. Where is “government paid” in the constitution?

            1. Would you be fine with the legislature deciding that a public defender’s office is a good policy choice to make? There were provisions for such, even before the Supreme Court mandated it. In fact, the Court is almost always a middle of the road institution, and it didn’t innovate by mandating a right to a lawyer, but rather it just expanded what was already common practice in many areas for all felony cases.

              1. “Would you be fine with the legislature deciding that a public defender’s office is a good policy choice to make?”

                I think its a waste of money but if the legislature decides it sure.

                “already common practice in many areas ”

                Voluntary election by a state to fund does not create a binding constitutional obligation for the rest.

            2. Where is “government paid” in the constitution?

              Where is “If the defendant can afford it?”

              Would you claim that the right to “a speedy and public trial,” also guaranteed by the Sixth Amendment, only applies if the defendant can pay the cost of the trial? How is it that the accused is entitled to a government paid judge, bailiffs, etc., to have a jury ordered to appear, but not a government paid lawyer?

              I realize that it’s an idiosyncratic opinion, but I’d say the right to government paid counsel is part of due process also. After all, it’s a commonplace that defending yourself in a criminal trial is a very bad idea.

              In general, what I think is that we have realized that it is necessary to have a lawyer in order to have a reasonable defense. Therefore the right includes the right to have the government provide one. There is nothing in the text that bars this conclusion.

    3. This ‘judiciary norms are only good as an obstacle to the other side’ is the kind of thinking I don’t like, whether I see it from Bob or in the growing support for court packing on the left.

      1. Under the “judiciary norm” of stare decisics, both Plessy and and Koramatsu, among others, would be good law.

        An initial error in Constitutional interpretation can never be cured no matter how many cases build on it.

        BTW, I have no objection to expanding the Supreme Court. Though I would prefer my side does the expansion.

        1. The Court has gone on long and hard about when to overturn a case even under Stare. I presume you’ve studied the cases, so why are you misinterpreting Stare as inviolate?

          1. C’mon, they deviate when they want to deviate, its not principled. Its all “changing public attitudes” and other standard-less BS.

            1. Come on, Bob. If it were standardless, you’d see a lot more deviation as courts changed.

              If you want to argue it’s all rationalization, that reasoning applies to all intepretative words put forth in any opinion, textualist, originalist, or other. If you don’t trust the judges, you just become a lame legal realist.

              1. I don’t fully trust any group of humans, especially those with lifetime jobs with no effective check.

                1. Fully trust, no – that’s why we have checks and balances. And, for that matter, the soft power of norms.

                  If you don’t trust Justices, then why in the world are you arguing to increase the judiciary’s power be making them more activist?

                  1. “making them more activist”

                    I want my side’s judges to undo what your side’s did. Its a relinquishment of power ultimately.

                    1. “we have checks and balances”

                      There are effectively none on the judiciary.

                      Life tenure and opposition means you “hate the rule of law”.

  7. If unanimity comes from the commonly practiced jury system at the time of the writing of the Sixth, “…but by the unanimous consent of twelve of his neighbours and equals…” then we are only partially there. Juries were all about defending against abuses of the state, and what better check on the state is there but truely for a jury of one’s neighbors and equals. The current process seems to be anything but designed to have a representative sample of neighbors and equals. Neighbors then surely implied that a juror could know the defendant, some thing now immediately disqualifying with even the remotest of connection.

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