Loopholes in the constitution

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Reply Mon 13 Oct, 2008 05:29 pm
Way back when, Kurt Godel ( logican extraordinaire) applied for citizenship in the united states following his self imposed withdrawal from Nazi occupied Austria. Wiki provides a good synopsis of what happened when Godel applied for citizenship.

U.S. citizenship exam, concerned that their friend's unpredictable behavior might jeopardize his chances. When the Nazi regimedictatorship could be legally installed in the United States, through a logical contradiction in the U.S. Constitution
Fact is, Godel never elaborated on what the exact type of inconsistency was in the constitution that could legally impose a dictatorship.

But there are a few theories as to what Godel may have meant.

1.
This guy on "the universe of discourse" states that the Attorney General could file suit with the Supreme court which, if effectively orchestrated, interpreting the constitution in which the president had vested powers to replace congress members. This would only require 6 Supreme Court judges as willing conspirators (five judges and the president.)

2. Under article 4 of the constitution, the congress can admit new states into the union. A congressional majority could allow a huge number of states (perhaps fictional), which could then propose amendments to the constitution and ratified by the fictional legislatures of the fake states.

3. The constitution provides for its own amendment. The American constitution has procedural limitations, but not substantive limitations. This could simply be used to overturn the original framework.

I must say that I enjoy the first two very much because they are so intricate. But it is most likely the third. But I wonder if anything else could be devised in order to overturn the constitution?

Can you think of any way in which the American constitution could be overturned and replaced with a dictatorship?
 
Theaetetus
 
Reply Mon 13 Oct, 2008 08:02 pm
@VideCorSpoon,
Executive Order 12919. Bush passed his executive order that would instill martial law according to the order. By declaring a national emergency, the president can over turn the Constitution and then the administration would act as a dictatorship.
 
VideCorSpoon
 
Reply Mon 13 Oct, 2008 09:26 pm
@Theaetetus,
I never heard of it until you mentioned it. Good point!

I am reading over it, and I am very disturbed by the level of trust it puts in FEMA.

Interesting how Part II, Sect. 201 on delegations and responsibilities seems as though it would open the door for absolute power of a president by proxy. It puts all central national process in the hands of the presidential cabinet. Thinking about it, all the power would be in the hands of a group of people hand picked by the president. I'd love to see the drama that would unfold in a power play on that level.

EXECUTIVE ORDER 12919

Good find!
 
Mr Fight the Power
 
Reply Tue 14 Oct, 2008 06:03 am
@VideCorSpoon,
I would say that Executive Orders themselves are unconstitutional, many of those issued have been at least.

In the end, no constitution can prevent dictatorship, in fact they generally exist today as a myth, a night-time fairy tale that allows us all to sleep better. It doesn't take much looking to realize how little the US Constitution still matters.

A good quote I found:

"Constitutions, bills of rights, statements of principle, party platforms, and all other Guarantees can never be more than self-imposed restrictions which cease to affect the people who run a government the instant they cease to believe in their rightness, or as soon as it is clear that the people will not punish the government for ignoring them."
~ Per Christian Malloch, "The Theory of Anarcho-Capitalism and its Libertarian Opponents" (unpublished)
 
VideCorSpoon
 
Reply Tue 14 Oct, 2008 07:35 am
@Mr Fight the Power,
Executive orders in themselves are not bad, it's how they are used. You need that kind of leverage if things go bad. Emergencies rarely give extra time for bureaucracy.

Though it would seem like no constitution could prevent a dictatorship, for it to be legal there would have to be a good deal of strategy and positioning.

That the constitution is a fairy tale I don't really agree with. Unfortunately, I think many Americans have become complacent with the fact the constitutional rights we have now are default, in-alienable rights and take them for granted. I remember going to Europe one summer and one of my friends assuming that his constitutional rights existed there, stating "it's a free country, I can do what I want." Does an Americans entitlement to free speech extend to the country of Latvia for example? No.

Also, take what you said for example. You have basically publicly displayed no confidence in a government mandate. Would you be as comfortable saying that in china? China has a very
 
Mr Fight the Power
 
Reply Tue 14 Oct, 2008 08:48 am
@VideCorSpoon,
VideCorSpoon wrote:
That the constitution is a fairy tale I don't really agree with. Unfortunately, I think many Americans have become complacent with the fact the constitutional rights we have now are default, in-alienable rights and take them for granted. I remember going to Europe one summer and one of my friends assuming that his constitutional rights existed there, stating "it's a free country, I can do what I want." Does an Americans entitlement to free speech extend to the country of Latvia for example? No.

Also, take what you said for example. You have basically publicly displayed no confidence in a government mandate. Would you be as comfortable saying that in china? China has a very


What you are saying here is true, but I look at it completely differently and do not see that what you are saying contradicts my argument.

As the quote says, the constitution is only authoritative as long as state officials believe in their legitimacy and fear punishment in breaking them. It is only that American culture has this comfort in the Bill of Rights that it does possess any power at all. If the people did not accept these tenets (and they don't actually accept the tenets of the bill of rights, rather a vague general acceptance of some sort of "liberty") as the basic, natural, and correct order of things, the constitution would possess no power whatsoever. This is why an American may be compelled to protest his rights within a country that pays no heed to our constitution.

As far as I can tell, we have one legislator or executive official that is actually committed to maintaining the constitution, with everyone else merely playing lip service, while avoiding it anytime it is inconvenient.
 
Ruthless Logic
 
Reply Tue 14 Oct, 2008 12:14 pm
@Mr Fight the Power,
Mr. Fight the Power wrote:
I would say that Executive Orders themselves are unconstitutional, many of those issued have been at least.

In the end, no constitution can prevent dictatorship, in fact they generally exist today as a myth, a night-time fairy tale that allows us all to sleep better. It doesn't take much looking to realize how little the US Constitution still matters.

A good quote I found:

"Constitutions, bills of rights, statements of principle, party platforms, and all other Guarantees can never be more than self-imposed restrictions which cease to affect the people who run a government the instant they cease to believe in their rightness, or as soon as it is clear that the people will not punish the government for ignoring them."
~ Per Christian Malloch, "The Theory of Anarcho-Capitalism and its Libertarian Opponents" (unpublished)



The above quote is quite careless with regards to establishing any type of enlightening statement. EVERY SINGLE CONCEPT OR CONSTRUCT of defined rights can NEVER transcend the mere fragile simplicity of an individual(s) state-of-mind into some magical unmovable rigidity of absolute guarantees(idealism).The question then becomes how much quality-state-of-mind beliefs individual(s) are willing to extend or self-imposed based on the continuing self-evident success of the accepted Construct. Any attempt to provide an alternate valid process would be complete lunacy.
 
Theaetetus
 
Reply Tue 14 Oct, 2008 03:30 pm
@VideCorSpoon,
I agree that signing statements have a purpose. When Bush eliminated certain laws pertaining to how gasoline is manufactured for various areas of the country with a signing statement after Hurricane Katrina displays a proper use of the signing statement. It was a way to avoid unnecessary chaos while temporarily (or who know the mandates may have never kicked back in) eliminating certain mandates that were not an integral part of the rule of the nation. On the other hand, Executive 12919 sets up the conditions to subvert what is supposed to be the ultimate law of the land--the contract upon which the country was founded. The former is clearly an abuse of power.
 
Didymos Thomas
 
Reply Tue 14 Oct, 2008 04:11 pm
@Theaetetus,
Yeah, this is an easy one. All that is required is a Supreme Court willing to accept Unitary Executive Theory. Look up John Yoo if you want to be scared. Bush has been getting away with this nonsense for years.
 
Arjen
 
Reply Tue 14 Oct, 2008 04:26 pm
@Theaetetus,
Say guys,

I am wondering what this topic is about. The thing of it is that I highly doubt that any constitution is not a dictatorship. The reason I am saying this is because a constitution is a writing dictates modes of conduct for every citizen to be ruled. Even though it is supposed to be a quantification of the sovereign will, not even one person has ever agreed to the person(s) writing any constitution to dictating rights to them.

I think the nly right thing to say here is:
"Who did that (those) person(s) think he (they) was (were) anyway, telling what to do and what not to do? Just because it effectively resembles what I want does not make for my censent in it. And worse still, does my apparent consent in it not make for the possibility of that (those) same person(s) to alter what I have apparently consented in at will because I did not speak out against it?

The answers to these remarks are easily given:
1) Any document which describes rules of conduct to anybody and at the same time describes punishment to that (those) person(s) is in fact a 'contract' of slavery and not rebelling against it is an affront to reason.
2) No document whatsoever has a hold on a person further than that person gives of his (or her) own free will. The hold of any such docments on the people is created by it's apparent compliant nature to the sovereign will of a people and the fear of the execution of the modes of conduct as described in the document, thus proving the dictatorship that any such document is.



So, in reality the loopholes go both ways:
1) Because of the fact that there has at a time been a person or group whom has taken it upon him- or itself to dictate anything to a populace that person or group by effect becomes the 'master' of the populace, because of the fact that that populace had not revolted against the dictates of that person or group, effectively creating a class-society in which the legislative class dictates the populace: being a dictatorship by default. All that remains is a tip-toe to open terror of the government on the populace for the dictatorship to show itself in full-colours.
2) Because of the fact there is no existing force that can rule any man, but for the reasonings of every individual no document can ever claim mastery over a populace. The game is to make the populace believe the rulers are legitimate, and thus the totalitarian tip-toe begins. If at any time a person or a populace chooses to revolt no document can hold them.

I think it was Lenin who said:

"A government creates it's own revolution, there can be no revolt without it."
 
VideCorSpoon
 
Reply Tue 14 Oct, 2008 04:56 pm
@Mr Fight the Power,
Mr. Fight the Power,
I think I can see where you are coming from. From what I gather, you state that a legal document is binding agreement in so far as the ones in power adhere to it. Simply, the ones in power have the power to uphold or throw out the principles of the document at any time. The complacency in the constitution is then not a bad thing, but a good thing because that complacently affirms some level of those rights being "natural." That could very well be the case.

But as to your comment ,

Mr. Fight the Power wrote:


As far as I can tell, we have one legislator or executive official that is actually committed to maintaining the constitution, with everyone else merely playing lip service, while avoiding it anytime it is inconvenient.


You may want to elaborate on this becuase it seems like a very good point.


Ruthless_Logic,
I do not fully understand why you find Mr.FightThePower's quote careless. Although you have a point that is probably very good, I cannot get past your unspecific generalisms and epideictics. How does a so called "quality-state-of-mind belief" factor in here?


Theaetetus,
I have to agree with you on 12919. In my mind, if there was any need to alter departmental structure into a more efficient emergency government by putting cabinet members in direct control of vital US sectors, then we live in an inefficient government to begin with.


Didymos Thomas,
The unitary executive theory would be a good place to start. But even beyond that, I don't even think the Supreme Court would need to except the theory in order for it to be enacted (Jackson v. Supreme Court Re. Cherokee independence). Good point!

And the infamous John Woo. John woo is (to me a least) a very adept penubralist. He can navigate the grey areas quite well. His torture memorandum is in all honesty a very bad thing in regards to suggesting precedence for torture methods such as water boarding. Unfortunately, looking at his memoranda off hand, what he says is somewhat sensible if taken without other considerations and only looking the law in a positivistic way.


Arjen,
Any constitution is not a dictatorship becuase a dictatorship is a form of government and a constitution is document underling the rights of those governed. It is not the government per se, but the right they are entitled to. I don't agree that the constitution is a dictate of sovereign rule... that seems more like a royal mandate. A constitution is a broad overview of rights, not terms of being ruled over.

I think you take constitution to be rules to be governed by rather than rights of citizens potentially beyond the rules themselves. That is why the American constitution is being constantly amended.

I have never really seen the constitution as a constricting document. However, the constitution has been constrictive for what it does not say. But amendments are put in to correct these unrecognized errors. But still, I think I can see where you are coming from.
 
Arjen
 
Reply Tue 14 Oct, 2008 06:07 pm
@VideCorSpoon,
VideCorSpoon,

It is not for what any constitution does not say, but for what it does say that those documents prove a dictatorship. In this case it even shows that dictatorship is the natural form of a law-ruled state. That point towards a paradox because when a dictatorship is not only the name of an element, but also the name of the set something is up. I think we all can agree that any stateform is merely a quantification of the wat a 'rulebase' is implicated into any society. The very fact that a 'rulebase' is used points to the fact that apparently somebody had the idea that he (or she) has something to say over what I should or should not do.

This though angred me right down to the very core of my being. Because who the bloody hell did the persons who wrote said 'rulebase' think they were? I should go down to the parliament and denounce it. The thing that is holding me back is that very same 'rulebase' though and the (capitol) punishments for doing just that. This is where a dcitatorship shows its true colours, isn't it?

The very fact that a rule is based upon a 'rulebase' which also dictates capitol punishment for not following that very same 'rulebase' makes for a dictatorship. No matter how nice it is made to look by the decorative democracy. That very document, in every example, always makes for more than one class in society and the rule of the one class over the other.
 
VideCorSpoon
 
Reply Tue 14 Oct, 2008 09:36 pm
@Arjen,
A constitution is perhaps one of the only remedies available for a dictatorship, and further to the identification of a dictatorship in the first place. Athens, Rome, Imperial England, etc. have all had some form of constitution that underlined the rights of citizens. And when there was some infraction against that document, it is usually that violation that decries a dictator and calls for reform.

I certainly do not follow how a constitution can show a dictatorship is the natural form of a law-ruled state. This seems axiomatic. Subsequently, I do not follow the rest of your suppositions. It seems like you have more of a beef with organized government than with constitutional incorporations.
 
Arjen
 
Reply Wed 15 Oct, 2008 12:19 am
@VideCorSpoon,
VideCorSpoon,

VideCorSpoon wrote:
A constitution is perhaps one of the only remedies available for a dictatorship, and further to the identification of a dictatorship in the first place. Athens, Rome, Imperial England, etc. have all had some form of constitution that underlined the rights of citizens. And when there was some infraction against that document, it is usually that violation that decries a dictator and calls for reform.

That is just the way it is being sold.....and you bought it....

Quote:

I certainly do not follow how a constitution can show a dictatorship is the natural form of a law-ruled state. This seems axiomatic. Subsequently, I do not follow the rest of your suppositions. It seems like you have more of a beef with organized government than with constitutional incorporations.

Let me put it this way:

If indeed we need an official document showing the 'rulebase' we are all (an not jus most) going to allow ourselves to be government by, don't you think we'd need just such an official document stating that the people writing the 'rulebase' actually are representatives of all the populace? And subsequently, wouldn't we need a document proving that the people who wrote the legitimising document for the people who were about to write the 'rulebase' and so on?
-That constitutes a regressus ad infinitum, and is a phallacy. The constitution proves nothing, apart from the fact that some people dreamed themselves the masters of all.

If indeed we need an official to write the 'rulebase' we are all going to allow ourselves to be governed by, don't you think that we'd need something to prove the legitemancy of the writer?
- That constitutes a petitio principii and is a phallacy. Being an official proves nothing, apart from the fact that the populace allowed themselves to be ruled over in previous times by those 'officials'.

If indeed we need an official base for any such document to be written, don't you think that at the very least we'd need an official representative to state said rulebase?
- Saying an individual is an offical is a decisio and a phallacy. It requeres a 'leap of faith'.
- Saying a document is 'official' is a decisio and a phallacy. It requeres a 'leap of faith'.

It seems that we can not find any way to legitimise any document, nor any official without one of the munchhauser trilemma, showing the phallacy. If indeed we always use phallacies to create the 'illusion' of an official 'rulebase', then perhaps we should concluded that it is a refutation to claim that any such document could possibly be 'official'. the kind of reasoning I am referring to is abundently explained in Aristotles' 'On Sophistical Refutations'.
 
Mr Fight the Power
 
Reply Wed 15 Oct, 2008 05:20 am
@Ruthless Logic,
Ruthless Logic wrote:
The above quote is quite careless with regards to establishing any type of enlightening statement. EVERY SINGLE CONCEPT OR CONSTRUCT of defined rights can NEVER transcend the mere fragile simplicity of an individual(s) state-of-mind into some magical unmovable rigidity of absolute guarantees(idealism).The question then becomes how much quality-state-of-mind beliefs individual(s) are willing to extend or self-imposed based on the continuing self-evident success of the accepted Construct. Any attempt to provide an alternate valid process would be complete lunacy.


But despite this fact being so obvious, the vast majority of people blithely oblivious of it or its ramifications. Even the critics of the US Government tends to bask in the hallow safety of the constitution and call out any critic of it here.
 
Mr Fight the Power
 
Reply Wed 15 Oct, 2008 05:52 am
@VideCorSpoon,
VideCorSpoon wrote:
Mr. Fight the Power,
I think I can see where you are coming from. From what I gather, you state that a legal document is binding agreement in so far as the ones in power adhere to it. Simply, the ones in power have the power to uphold or throw out the principles of the document at any time. The complacency in the constitution is then not a bad thing, but a good thing because that complacently affirms some level of those rights being "natural." That could very well be the case.


Government law is generally representative of the social norms of the population, as no matter how rigid the hierarchy of a society is, the ruling elite cannot maintain this position without some sort of ideological hegemony. As such, the constitution serves as a excellent benchmark to look to when judging the progress of western political conventions, but it really doesn't serve much of a function anymore.

And yes, because of this, I take at least a little pride in western society, especially American society (despite what its government does), because they have seemed to accept a code of justice that is above and beyond the document itself. You could say that this points to a "natural" level of rights, that a free people are moral and will behave as such even without government decree.

Quote:
You may want to elaborate on this becuase it seems like a very good point.


I do not appreciate the constitution very much as can be gathered, but I do not question that it is at least a good guideline for government to go by if government must exist. The problem is that the constitution, by way of its mythical status, has become its own moral justification and gets employed as such when convenient. Since it is not really binding and most still accept it blindly as the law of the land, however, it is not followed with principle by very many government officials.

Mainly, it now gets used as a tool of the ideological hegemony that I mentioned earlier, binding more towards the citizenry than the state - the opposite of its original intent. It is not purposeful, we just have politicians who appreciate the constitution more in propaganda than in legislation.

Hopefully I am right that people accept the sentiment behind the constitution more than the words written on it.
 
Mr Fight the Power
 
Reply Wed 15 Oct, 2008 06:21 am
@Arjen,
Arjen,

I think I know where you are going with this, and I should point out that the original writers of the US Constitution never intended the constitution to be a perpetually binding legal document. Indeed they were the ones who believed in the natural right of individuals to "dissolve the political bands" with a government that does not exist by their consent. It was not until the civil war that the constitution began to be really used as a tool of authoritarianism.

For a good read on this topic, read Lysander Spooner's No Treason. (although I imagine from our discussions that you are already familiar with it)

Spooner wrote:
The Constitution has no inherent authority or obligation. It has no
authority or obligation at all, unless as a contract between man and
man. And it does not so much as even purport to be a contract between
persons now existing. It purports, at most, to be only a contract
between persons living eighty years ago. [This essay was written in
1869.] And it can be supposed to have been a contract then only between
persons who had already come to years of discretion, so as to be
competent to make reasonable and obligatory contracts. Furthermore,
we know, historically, that only a small portion even of the people
then existing were consulted on the subject, or asked, or permitted to
express either their consent or dissent in any formal manner. Those
persons, if any, who did give their consent formally, are all dead now.
Most of them have been dead forty, fifty, sixty, or seventy years. AND
THE CONSTITUTION, SO FAR AS IT WAS THEIR CONTRACT, DIED WITH THEM. They
had no natural power or right to make it obligatory upon their children.
 
VideCorSpoon
 
Reply Wed 15 Oct, 2008 07:36 am
@Arjen,
Arjen,

Arjen wrote:
VideCorSpoon,
That is just the way it is being sold.....and you bought it....


It almost sounds like you posit that the American constitution is originally a framework for a dictatorship. Being familiar with it, I disagree. Not only that, but I have apparently been duped into "buying" into a document with no substantive evidence to support a dictatorship aside from the loopholes that could result from its own provisions

Arjen wrote:

If indeed we need an official document showing the 'rulebase' we are all (an not jus most) going to allow ourselves to be government by, don't you think we'd need just such an official document stating that the people writing the 'rulebase' actually are representatives of all the populace? And subsequently, wouldn't we need a document proving that the people who wrote the legitimising document for the people who were about to write the 'rulebase' and so on?


Somehow, I don't think you know the substantive content of the American constitution which is the core subject of this thread. You can suppose any type issue you have with authoritative documents, but cannot assume that all constitutions are the same. The American constitution provides for the establishment of representation... subjectively and objectively. As to your second point, it seems incomplete. From what I gather, you posit that we would need some document legitimizing the people that wrote the constitution? Why would elected representatives need to further legitimize themselves in order to form a document they were appointed to create.

Arjen wrote:

-That constitutes a regressus ad infinitum, and is a phallacy. The constitution proves nothing, apart from the fact that some people dreamed themselves the masters of all.


What you previously said is not a regressum ad infinitum. There is no pardoxical notion about it. Further more, a regressum ad infinitum does not prove a fallacy in its own right. This is a problem for many of your proceeding assumptions.

Arjen wrote:

If indeed we need an official to write the 'rulebase' we are all going to allow ourselves to be governed by, don't you think that we'd need something to prove the legitemancy of the writer?
- That constitutes a petitio principii and is a phallacy. Being an official proves nothing, apart from the fact that the populace allowed themselves to be ruled over in previous times by those 'officials'.


Yes... again, they are legitimized when they are elected to represent the state in the congress (represenative meeting). That it constitutes a...sigh...a "petito principii"... is ridiculous as no supposition is provided for the conclusion which would necessitate the labeling of this type of fallacy to begin with. But curious though how this term means in some lesser degree means circularity hidden in epidectic speech.


Arjen wrote:

If indeed we need an official base for any such document to be written, don't you think that at the very least we'd need an official representative to state said rulebase?
- Saying an individual is an offical is a decisio and a phallacy. It requeres a 'leap of faith'.
- Saying a document is 'official' is a decisio and a phallacy. It requeres a 'leap of faith'.


Though it is very easy to label things as a fallacy, it requires a proof in order to make it so. Using axiomatic assumption is not enough to suppose these arguments.

Arjen wrote:

It seems that we can not find any way to legitimise any document, nor any official without one of the munchhauser trilemma, showing the phallacy. If indeed we always use phallacies to create the 'illusion' of an official 'rulebase', then perhaps we should concluded that it is a refutation to claim that any such document could possibly be 'official'. the kind of reasoning I am referring to is abundently explained in Aristotles' 'On Sophistical Refutations'.


This is not personal, but strictly within the confines of the philosophical discussion. I have yet to see a convincing argument aside from axioms and misplaced suppositions leading to faulty conclusions. This argument does not hold water. I would also caution against big words used in the wrong context.
 
Arjen
 
Reply Thu 16 Oct, 2008 01:22 pm
@VideCorSpoon,
VideCorSpoon,

You missed most of what I was saying. Here is a short clarification:

1) I am saying all constitutions are expressions of dictatorships, not just the American constitution.

2)The reason I am saying this is because of the fact that to validate any such document another document would be needed, and so on untill infinity. It is a fallacy (ignoratio elenchi
 
VideCorSpoon
 
Reply Thu 16 Oct, 2008 05:44 pm
@Arjen,
Keep in mind Arjen that this is not personal. It is the argument rather than the person that is under question. I appreciate your comments and the conversation in general. If I come off as harsh, it is becuase I think you apt and mindful to the criticisms within the confines of the discussion.

1) I'm saying that your supposition about constitutions in general is biased. Your line of reasoning is flawed in that you base an entire argument of a wild and unsubstantiated assumption. If it were a bit more substantiated, I could give it the benefit of the doubt.

2)The need to validate a constitution with another document is... well... redundant. A constitution is a "starter" document to begin with. That is what is implied in a "fundamental" constitution. The mentioning of ignoratio elenchi is hilarious in that the fundamental meaning is to essentially to change the subject.

3)I disagree with what you say here. The things you say do make sense, and given some assumption, I would then be inclined to agree with them. But I think you misinterpret the meaning of what a constitution is. But many people do, hence the need for constitutional lawyers. Nothing wrong with this though.

4) that is not a paradox.

5) There are few problematic parts of this point. First, axiom = notion of election. This is first time the notion has been introduced into the argument. To suppose and insert a fact unstated is essentially an axiomatic statement. Again, axiomatic statements should be avoided in order to add credibility to your argument. I also like your usage of the term "rulebase," which is essentially a widely interpreted phrase which means everything and nothing within confines of the conversation. Your logical chain is faulty to say the least. Furthermore, the quote to Aristotle does not lend any weight or relevancy to your position.

But I do thank you for the warning about axiomatic statements. I will try to avoid them in the future as well as avoid using big words in the wrong context. Truly, I would not like to engage in an argument ignoratio elenchi.
 
 

 
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