Balkinization  

Saturday, March 26, 2016

Envisioning a forthcoming constitutional crises

Sandy Levinson

Are we in a genuine "constitutional crisis," whatever the dysfunctionality of our national government?  Probably not, though if a Republican Senate were to continue to refuse to confirm any nominees by a  Democratic President for the judiciary (or anything else), that could easily take on the overtones of a genuine crisis. (One can "starve the beast" almost as easily by refusing to allow the appointment of officials charged with administering the national government as by refusing to fund it.)   But, for those who like to envision apocalyptic scenarios besides alien invasion or the dangers of asteroids, think of the following:

There are indeed three or four serious candidates for the presidency this fall, perhaps Trump, Clinton, Gary Johnson of the Libertarian Party., and Mitt Romney for the "Establishment GOP"."  Clinton will clearly get more votes than any of the other candidates, but, of course, that doesn't matter.  The electoral votes are the only thing that matters.  So would the losers accept the verdict if someone other than Clinton got an electoral vote majority, even as she has received far more popular votes (and was in fact the second choice of most of the Romney voters)?  And would it matter if, say, North Carolina's or Arizona's electoral votes went to Trump quite clearly because of successful efforts by the Republicans who control those states to suppress likely Democratic votes? Why in the world should Democrats treat that outcome as "legitimate"?  Talk about "rioting in the streets"! 

But wait, there's more.  Imagine that Clinton, with a clear plurality, perhaps even a solid majority of the popular vote, doesn't cobble together the necessary majority, but no one else does either, because, say, Romney manages to carry Utah, while Gary Johnson slips into first place in New Hampshire and Alaska. Then, of course, our 1787 Constitution says that the House must choose, on a one-state, one-vote basis (i.e. equal voting power for Wyoming and California) among the top three candidates, for the presidency, while the Senate chooses between the top two vice presidential candidates for that office.  It remains relatively likely that the next House will continue to have a majority of Republican delegations, even if, unexpectedly, the Democrats do well enough to recapture the House by, say, sweeping some of the large states.  So would it be legitimate if, say, the Republican House chose Mitt, who came in third with 10 electoral votes (while Trump has 260 and Clinton has 268 votes, respectively)?  I presume that there would be conjoint rioting in the streets among Trump reporters on one side of the street and Democrats on the other.  And, of course, what if the now-Democratic Senate chose Julian Castro to be VP (over, say, John Kasich, Mitt's running mate)?  Or, to finish off the list of possibilities, assume that Clinton, who gets only, say, 43% of the popular vote (the same percentage as her husband in 1992), in fact gets a majority of the electoral vote because, say, Mitt and/or Johnson got enough votes to deprive Trump of a presumptive victory in some key states.  Would Trumpists accept that as a legitimate outcome.

This particular scenario, as suggested , doesn't depend on asteroids or even terrorist attacks.  All that has to happen is for the 1787 Constitution (as amended in 1803) to work "as designed."  The crisis would not be "constitutional breakdown," as when the clear requirements of the Constitution are violated, but rather a genuine and altogether justified crisis of legitimacy when the sheer indefensible stupidity of the Constitution is revealed in all of its glory.   This probably won't happen, of course, but I suspect that the likelihood is higher (say, 5%) than is the threat of a truly serious terrorist attack in the US in the next six months.  Every politician thinks it necessary to "have a plan" to forestall the latter, none seems even interested in discussing the former.  Alas....

Comments:

I'm pretty sure that Romney isn't going to get any votes at all, unless maybe they're a few write in votes, so I'm a bit unclear why you're counting him as a candidate in the general election. That's extraordinarily unlikely; By the time Trump has secured the GOP nomination, it will be awfully late to get him on the ballot as an independent. They might manage it in one or two states if they really try, but I think it more likely that the GOP establishment will resign themselves to Trump being the candidate, and Romney goes back into retirement.

Gary Johnson might do extremely well as a protest vote. (Where extremely well means getting several percent of the vote.) The biggest consequence of that, of course, would be automatic ballot status, and greater legitimacy for the LP. The prospect of that happening ought to terrify the Republican establishment, given how much of the Republican base is basically libertarian in their views, and enraged with that establishment. So they're certainly not going to encourage him as a protest vote.

Frankly, if the GOP establishment doesn't suck it up and accept the will of their own primary voters, they're not going to try to fracture the vote the way you suggest. They'll just try to engineer a Clinton victory. That they wouldn't consider that awful is part of why their base hates them.
 

It took things happening for certain amendments to be deemed necessary. We saw that after the Election of 1800, FDR getting a third and fourth term and Ike having medical problems.

Such might have to happen again (if Kerry won Ohio and won in 2004 with less popular votes, a serious proposal to amend the Constitution was very foreseeable) in regard to election hypothetical of the sort you raise here. Perhaps Trump, with his plurality wins though a majority opposed him in state after state, will be a lesson.

5% is pretty low. Given the imperfect solutions that will arise from compromises set forth in this country, what system won't leave an opening like that sometime?



 

A petition is seeking approval to carry weapons at the 2016 GOP convention. Sandy faces open carry issues coming up on his UTex campus. Are these potential constitutional crises? Are these efforts to trump the 1st A speech and press clauses by 2nd A?
 

Sandy:

You appear to realize that Clinton cannot gain a majority of the vote. Also, by definition, the GOP party establishment is no going to be running a third party candidate - Romney or otherwise. The conservatives are talking about going third party of Trump wins, but there is no serious movement and organization to do so. This leaves just two likely scenarios:

1) Trump or Cruz v. Clinton: The plurality to majority electoral winner should win the majority of the electors, unless Trump is running and the Libertarian divides the vote in some close state the way Nader divided the Democrat vote in Florida during 2000.

2) Cruz v. Trump (I) v. Clinton: This is the 1992 election all over again with Trump playing Perot, dividing the center right electoral majority and allowing another Clinton to win with a plurality of the vote and majority of the electors.

I do not see the constitutional crisis in either case. The electoral winner almost always wins the electors. When the electoral winner lost the electoral college, the republic did not fall or even waver.
 

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Shag:

If the GOP convention delegates all carried firearms, this would be an exceedingly polite convention.
 

From SPAM I AM!'s lips to Trump's/Cruz's supporters' ears. Imagine if one idiot delegate (and there'll be many in attendance) with a gun who mentally figures it's a self-defense moment and opens fire in a crowded convention, with the collateral damage resulting from the cross-fire from the "good" delegates with guns.
 

For SPAM I AM! politeness follows exceedingly when all (or many) are armed. I wonder how RNC insurers would look at risk assessments with all delegates armed at the 2016 Republican Convention.
 

Is there any reason to suppose the RNC would have greater problems in that regard than the NRA? Because the NRA hasn't had any problems with insurance at its conventions when permitting concealed weapons.

See, insurers make money by being objective about such things.. Irrational prejudice loses them money.
 

Is there any reason to suppose the RNC would have greater problems in that regard than the NRA?

Of the hundreds of gun shows across the nation every year?

You progressives watch too many Hollywood westerns. The so called Wild West has far less violent crime than does your average blue city.
 

Ha, that's a point against permitting guns; They're holding the convention in an average blue city...

About time they stopped doing that.
 

Perhaps Brett can inform as as to controversies within the NRA at its conventions. I assume they all walk in lockstep. But the GOP convention may have some delegates with disagreements, especially with efforts to de-Trump the Donald, who I think said something about possible riots if he doesn't get the nod. According to press reports, the GOP candidates are not in lockstep. Why some are bringing in the other's family, resulting in some harsh exchanges.

As to SPAM I AM!, he might not feel so many without a Glock in his jock. Once again, SPAM I AM! provides mishistory on the Wild, Wild West.

Brett's reference to the GOP convention being held in a blue city might be his suggestion that the delegates may have need for self defense from the locals.

And as to gun shows, there have been reports of "accidental" shootings.

Perhaps the NRA goes bare on insurance.

And who are the petitioners? And what are their reasons? Is Trump - or Cruz - behind this? It's not a state law but a petition, so far perhaps 30,000 signers, many, many more than the number of delegates. Are our 2nd A Frick and Frack signers?
 

Ha, that's a point against permitting guns; They're holding the convention in an average blue city...

About time they stopped doing that.
# posted by Blogger Brett : 7:14 PM


LOL Brett, have you ever been on a military base? No guns are allowed on those bastions of liberalism.


 

Bart DePalma said...
The so called Wild West has far less violent crime than does your average blue city.


LOL Gun laws were much tougher in the so called wild west than they are today.
 

Gun laws or no, the Wild West was "extraordinarily violent". http://www.academia.edu/4673371/Homicide_Rates_in_the_Old_West This, of course, refers to violence among whites; once we account for the genocide of the Indians, it's much higher than even that.
 

Gun laws or no, the Wild West was "extraordinarily violent". http://www.academia.edu/4673371/Homicide_Rates_in_the_Old_West This, of course, refers to violence among whites; once we account for the genocide of the Indians, it's much higher than even that.
# posted by Blogger Mark Field : 9:24 PM


I'm sure it would have been less violent if they'd only had more guns.
 

The Republicans stole the 2000 election in broad daylight and the Democrats did not riot in the street. To the contrary, part of the theft of the election was accomplished by Republican violence. The idea that Democrats would "riot" in the event of an ambiguous result is ridiculous, but the threat of violence from Republicans who prance around in the street with assault rifles and praise lawless militia groups is real.

Much of what you've written is merely absurd, but some of it is both clueless and offensive.

"The demonstration was organized by Republican operatives, sometimes referred to as the "Brooks Brothers Brigade", to oppose the recount of 10,750 ballots during the Florida recount... New York Rep. John Sweeney told an aide to "Shut it down." The demonstration turned violent, and according to the NY Times, "several people were trampled, punched or kicked when protesters tried to rush the doors outside the office of the Miami-Dade supervisor of elections. Sheriff's deputies restored order." DNC aide Luis Rosero was kicked and punched... [T]he canvassing board unanimously voted to shut down the count..

The controversial incident was set in motion by John E. Sweeney, a New York Republican who was nicknamed "Congressman Kick-Ass" by President Bush for his work in Florida... Some Bush supporters did acknowledge they hoped the recount would end. "We were trying to stop the recount...""

https://en.wikipedia.org/wiki/Brooks_Brothers_riot

 

You've got your history a bit twisted. Here's what actually happened.

Gore lost Florida on election night. Very narrowly, but he lost it. So he decided to be a bit tricky. Instead of asking for a state-wide recount, which would likely just confirm beyond all denying that he'd lost, he waited until the last minute, and then asked for a recount in a handful of areas where he'd done exceptionally well.

I mean, everybody asks for recounts in the places where they did very well, right?

It was actually a sensible thing to do: While recounts don't usually reverse the outcome, they frequently increase the turnout, as a manual count will find intent in ballots the machine just gave up on. So, what he as doing was trying to increase the turnout, after the fact, only in places he'd done well. And asked for the recounts at the last minute to prevent Bush from replying in kind.

Annoyingly, it wasn't quite enough. As the recount in Palm Beach proceeded, they could see that they just weren't going to find enough extra Gore votes, no matter how they changed the criteria. So, rather than give up, they decided to move the count to a room where the poll watchers couldn't keep an eye on them.

I'll leave it to you to infer what they planned to do once they weren't being monitored. But it was that attempt to escape scrutiny, not the counting itself, that triggered the 'riot'. And it was the Palm Beach officials themselves, all Democrats, who decided that, if they had to count the ballots in plain sight, there wasn't really any point in continuing.
 

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"which would likely just confirm beyond all denying that he'd lost"

The Florida Supreme Court did ask for statewide recount. The USSC stayed the process so how exactly it would have gone is mere supposition. There are ways that Gore would have won. So, the effort seems fairly "sensible" as a whole even if the strategy was imperfect. There are various possible scenarios of what would have occurred, including if the early challenges were handled differently, so "likely" and "beyond all denying" is getting the history a tad bit twisted.

"a bit tricky"

A machine recount was done, which also showed George Bush as the winner, again by a few hundred votes. Margin of error, for sure. There was no provision for a "state-wide" recount; it was by county. Gore chose four populous counties his side deemed to be where the most problems were. There was a limited amount of time & as is time ran out.

http://www.vanityfair.com/news/2004/10/florida-election-2000

"asked for the recounts at the last minute to prevent Bush from replying in kind."

There was a 72 hour window for him to choose what to do. 11/7 was Election Day; request for a hand recount was made 11/9. Gore also needed time to process information, obtain legal counsel and formally make a claim. Doesn't look like "the last minute" though or merely "to prevent Bush from replying." He replied anyhow.

http://uselectionatlas.org/INFORMATION/ARTICLES/pe2000timeline.php

"riot"

Unknown's link provides citation (other sources can be found) of those who admitted the protest in place was staged in part to inhibit and stop the recount. Regardless, there were objectively reasonable grounds for moving to a separate floor though skipping over them will help the "inferring" otherwise.

https://www.washingtonpost.com/archive/politics/2001/01/31/for-bush-camp-some-momentum-from-a-memo/8c319870-8e1a-4062-b33e-b31a2afa5c9b/

I don't think Unknown shows his/her work enough and the one incident can be viewed in various respects but spinning the other way might not be helpful either.
 

The Secret Service has addressed the armed delegates issue for the Republican Convention. Perhaps our 2nd A Frick and Frack will blame President Obama for depriving delegates of their rights to political self-defense. I imagine that the condidates and the RNC could vote not to have the Secret Service involved with the Republican Convention in order to approve an open carry gun zone.
 

Making the GOP convention an open gun zone might be the greatest idea ever.
 

Disregarding "SPAM I AM! s/he's not," check out this link:

http://www.cbsnews.com/news/surprising-source-of-gop-convention-guns-petition/

for the CBS report "Surprising source of GOP convention gun petition." Dirty tricks by a liberal? 70K signatures? But 2nd A open carry seems to be the theme of Republican presidential candidates. Comments from our 2nd A Frick & Frack should be forthcoming. But will they be consistent with their earlier comments? Will they shoot from the lip or ...?
 

Shag:

Figures.

Unlike most mass shooting locations, the RNC and DNC are hardly "firearm free zones." The political conventions both have a massive police and Secret Service presence.
 

So SPAM I AM! recognizes civilization that includes policing? But SPAM I AM! earlier said the GOP convention would be safer with open carry.
 

A 4-4 split Supreme Court on Tuesday left in place a lower court ruling that allows public unions to collect fees from non-members.

http://www.buzzfeed.com/chrisgeidner/split-supreme-court-means-a-win-for-public-unions?utm_term=.jo5wkEJz0#.qgNyEBLxA

 

Unlike most mass shooting locations, the RNC and DNC are hardly "firearm free zones." The political conventions both have a massive police and Secret Service presence.
# posted by Blogger Bart DePalma : 10:15 AM


Blankshot, a "massive police and Secret Service presence" is not the same as "open carry". You should be allowed to carry your gun into the GOP convention. I'm surprised that you're not outraged by that your 2nd amendment rights are being violated.
 

No, he's saying the conventions won't be like the usual "gun free zone", where you're prohibited from being armed to defend yourself, but nobody else will be defending you, either. The people aren't being left defenseless, just self-defenseless.

In most cases, when seconds count, the cops are only minutes away. This is one of those rare instances where they'll only be seconds away.
 

Not, of course, that that's a lot of consolation for the people who get beat on by Bernie's Red Guard while the VIPs are hustled away. I'm expecting some serious violence at the convention, but it's not going to be Trump's people starting it.

Finishing it? Maybe.
 

Brett, if someone walks up to you and pulls a gun it's not going to matter how many Secret Service agents are there. You're going to wish you had your gun. You should be outraged.
 

I am, actually. The idea that the SS get to over-ride state and local law any time they feel like it should outrage everybody. It's not just telling people they can't carry guns in places they're legally entitled to. It's people being rousted out of public places so that a pol can walk without having to encounter normal people. Highways being cleared so our elected royalty can drive down them speeding.

That's what they've become, you know: An elected aristocracy, who don't have to live under the same laws everybody else does. Concealed carry being banned in a place where it's legal, or Hillary not being in leg irons, is just part of it.
 

But Brett fails to address what are the wishes of the Republican Convention delegates as opposed to some 70,000+ who signed the petition. Can RNC or the Republican candidates take steps to relinquish Secret Service protection and have the delegates vote on whether they want an open carry convention? Or would Brett prefer the 70,000+ petition signers to have their way?
 

"The idea that the SS get to over-ride state and local law any time they feel like it should outrage everybody."

And, they don't even dress up in Nazi uniforms. Tricky.

They don't actually "get to override state and local law any time they feel like it," but not being on the left, Brett can use words differently. There are various rules in place there and Congress, if it wants, can add more. Plus, it doesn't really outrage me that under the Constitution the federal law is at times supreme. This includes not letting, e.g., some small town interfere with protecting the President.

Some want to amend the Constitution. But, I'm told there's an app (Art. V) for that.
 

"That's what they've become, you know: An elected aristocracy, who don't have to live under the same laws everybody else does."

Become? The Constitution itself gives Congress special immunity, e.g., so when was this?
 

Wouldn't it be the current Congress that would elect the president & vice president anyway, not the incoming? Or not?
 

Brett: The idea that the SS get to over-ride state and local law any time they feel like it should outrage everybody.

Actually, SS has no power over the RNC and the Republicans can remove them if they wanted to.

I would not be surprised if the RNC organizers asked the Secret Service to issue a statement to defuse the bogus petition calling for carry at the convention.
 

Brett said...
I am, actually. The idea that the SS get to over-ride state and local law any time they feel like it should outrage everybody.


They can't do anything of the sort. Just because you don't like the fact that federal laws sometimes override local laws, that does not mean what you seem to think it means. Words have meaning, tough guy.
 

"Plus, it doesn't really outrage me that under the Constitution the federal law is at times supreme."

Under the Constitution, federal law is supreme where the federal government is actually entitled to legislate.
 

Brett said...
"Plus, it doesn't really outrage me that under the Constitution the federal law is at times supreme."

Under the Constitution, federal law is supreme where the federal government is actually entitled to legislate.


In this case I believe that the SS is operating as per the "we not letting everyone bring in a gun, that would be moronic" statute.
 

Bart DePalma said...
I would not be surprised if the RNC organizers asked the Secret Service to issue a statement to defuse the bogus petition calling for carry at the convention.


I believe that the Secret Service has already issued a statement saying that we're not allowing you morons to bring guns into the building.
 

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"Wouldn't it be the current Congress that would elect the president & vice president anyway, not the incoming? Or not?"

The Electoral College does meet in mid-December, but the new congressional session comes in early January per the 20th Amendment and counts the electoral votes. So, incoming.
 

The House selects the President, and the Senate the vice President, in the event the Electoral college doesn't have a majority for anyone. And the votes are cast, one per state, per the majority vote of each state's delegation.

Nobody sane thinks the Republicans will lose enough seats to not dominate that vote.

The Senate is another matter, and you could see President Trump stuck with vice President Clinton. The Secret Service would be pulling a lot of overtime in that event.
 

Brett: The Senate is another matter, and you could see President Trump stuck with vice President Clinton. The Secret Service would be pulling a lot of overtime in that event.

Good GAWD!

Just when I stopped having night terrors at the possibility of an election between the fascist and the lying felon, you have to come up with a scenario where we get both of them.

You can just rock me to sleep tonight...
 

SPAM I AM!'s:

"You [Brett] can just rock me to sleep tonight.."

defines strange, real strange bedfellows.
 

"Nobody sane thinks the Republicans will lose enough seats to not dominate that vote."

Sanity would hold if one thinks there would be a split over candidates with Democrats being the tiebreaker. Dems already served this role legislatively.
 

"Is there any reason to suppose the RNC would have greater problems in that regard than the NRA?"
Yes. The delegates to the NRA conference all agree on essentials. It's a rally of the like-minded. The differences will be over minor matters of personnel and tactics. The RNC will be bitterly and angrily contested. Trump has been fomenting violence at his campaign rallies, and some of his delegates will reflect this thuggery. The conference will be very unpleasant, even without guns. Independent - that is "hostile" - journalists for one will be at some risk.
 

Thomas Edsall's NYTimes column "Who Are the Angriest Republicans?" might mirror Brett - and perhaps SPAM I AM! Edsall uses recent quotes from conservatives.

James is fully on the mark with his NRA comment. I would only add that NRA members portray the illusion that they are all "good" guys with a gun.
 

James, it would be more to the point to note that the Republican convention is going to be invaded by Sanders' goon squads, who have already demonstrated a predilection for violence. Whereas NRA conventions are not typically invaded by hordes of anti-gunners looking to cause a riot. So the situation IS rather different.

I personally think pepper spray would be more in order than firearms, given the crowded venue.

Trump has only been "fomenting violence" in the sense that he advises his supporters to fight back. There'd be nobody for them to fight back against if Sanders' goons weren't trying to violently shut down Trump events. Weren't you at all horrified when they closed an expressway leading to Mayo Clinic, just because it was the only route to a Trump rally, and then blocked an ambulance from getting through?
 

Brett's response to James that:

" ... the Republican convention is going to be invaded by Sanders' goon squads, ...."

is an Elmer Fudd/Looney Tunes cartoonish. Trump's change on supporting the Republican nominee that is not the Donald will have have the "Sanders' goon squads" LOLing such that an invasion would not be necessary to disrupt the Republican Convention from without. The "burn" at the convention will be self-inflicted.
 

"Trump has only been "fomenting violence" in the sense that he advises his supporters to fight back."

http://www.vanityfair.com/news/2016/03/donald-trump-protesters-rally-violence

A sample: “So if you see somebody getting ready to throw a tomato, knock the crap out of ’em, would you?” he urged the crowd at another rally last month in Iowa. “I promise you, I will pay for the legal fees. I promise. I promise.”

If this warrants an "only," I guess we are back to a need for our decoder ring. But, seriously, this is the sort of thing that concerns people and not just the usual suspects of "the media" or "the left" or "the establishment" etc.

Plus, "fomenting violence" IS going to be allegedly for some reason. People don't usually do that sort of thing for no reason. They justify it as "necessary."

 

Sanders btw has "goons" while Trump is "only" trying to protect his supporters.

At some point, the hackery is a bit silly.
 

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Joe:

You are illustrating Brett's point.

Sanders supporters and other assorted socialist thugs are invading Trump rallies to keep Trump from speaking to his supporters. Trump is urging supporters at his rallies to use physical force to repel these invaders.

This is not analogous at all to the RNC. Trump's will not have a crowd of supporters there. The delegates will be overwhelmingly Republican party regulars and will not be attempting to silence Trump.

BTW, Trump needs to stop statements like: “So if you see somebody getting ready to throw a tomato, knock the crap out of ’em, would you? I promise you, I will pay for the legal fees. I promise. I promise.” Inciting battery is a misdemeanor crime in most states and some Democrat police chief or sheriff may be all too happy to lead away the Donald in cuffs. His thuggish campaign manager is already charged with battering a reporter in Florida.

 

Yes, Joe, throwing things at people who dare to express opinions different from your own IS violence.

Is it your opinion that getting pelted with rotting vegetables, and maybe the occasional rock, (Because you know if the veggies are tolerated, the rocks will begin.) is just the price one must expect to pay for speaking your mind when your opinions aren't approved of by the left?

I'm getting increasingly horrified at just how open people on the left are becoming about approving of violent suppression of contrary opinions. Rationalizing that, so long as they're not shooting people, or beating them with lead pipes, it isn't really "violence".

Yes, Joe, this hackery is a bit silly.
 

"His thuggish campaign manager is already charged with battering a reporter in Florida."

"Simple battery", Bart. The misdemeanor offense of deliberately touching somebody who didn't want to be touched. It's the least charge that could be brought, and still bring a charge.

Watching the video, I suspect that reporter is going to get chewed out by the judge for wasting the court's time, if it ever reaches court. She committed it, too, that day, by touching Trump.

Trump is a long way from my ideal candidate, but the TDS is getting absurd.
 

Brett's legal prediction:


"Watching the video, I suspect that reporter is going to get chewed out by the judge for wasting the court's time, if it ever reaches court. "

should be compared to his laments with the legal system and lawyers in general, including his own lawyer, in connection his comments some years back on this and other blogs. In FL, if that lady reporter had been armed, why she could have shot Trump's creep under F:L's augmented self-defense statute. But the reporter was more civilized with this intrusion on her body per the videos. Women can be more readily in fear with this creep's actions. A "simple" battery may provide a significant charge. The creep may claim he was acting in defense of another person, to wit, the not so witty The Donald, his financial funder.
 

Is SPAM I AM! speaking as an expert on the law of offer and acceptance re: Trump's offer to his ghoulery if accepted by one of the ghouls?
 

A libertarian judge might chew out the police for bring the criminal charge, not the self-interested reporter for a conservative news organization who reasonably felt wronged here while doing her constitutionally protected job.

OTOH, maybe said judge would agree with the local authorities that the facts warranted a criminal charge, be it a relatively minor ones. Those laws count too. And, a criminal charge, especially involving a woman reporter from a conservative news organization, might be a concern.

Finally, seems to me if a local government official wanted to make a politically tinged arrest, can very well be a Republican one.
 

Brett/Joe:

Unwelcome touching (allegedly with bruising in this case) is indeed simple battery in Florida (where I prosecuted for five years) and is known as harassment in Colorado.

The video of the manager yanking the reporter back by her arm to keep her from Trump and what I presume will be photos of her bruises makes a very strong case for the prosecution.

While this is hardly the OJ case, police and state attorneys charge this crime thousands of times a year with far less evidence. I defended a minister charged with hitting his wife with the leg of a pair of jeans once.

The manager will likely plead this out with some anger management classes, which he apparently could use.
 

لا داعى للقلق وانت تتعامل مع شركة اركان المملكه للتنظيف والمكافحه والتسليك
وغير ذالك من كافه انواع التنظيف فى المملكه السعوديه باكملها اذا
كل ما عليكم هو زياره صفحتنا للتطلع على اقل الاسعار المتاحه
والتى تفى احتياجاتكم الخاصه
شركة مكافحة حشرات بالدمام



شركة مكافحة حشرات بابها



شركة رش مبيدات بجازان



شركة مكافحه حشرات بالاحساء



شركة رش مبيدات بالرياض



شركة اركان المملكه

شركة تنظيف بابها

شركة تنظيف فلل بابها

شركة تنظيف بالدمام

شركة تنظيف منازل بالرياض

شركة تنظيف منازل بابها

شركة تنظيف منازل بخميس مشيط

شركة تنظيف شقق بالدمام

شركة تنظيف بجازان

شركة تنظيف بالاحساء
اتصلوا بنا دائما تجدونا فى كل وقت وكل مكان
لاننا نتعامل بمنتهى الدقه والفعاله والاهميه الكبيره مع شركة
اركان المملكه لاداعى للقلق نحن معك دائما
 

اتصلوا بنا تجدونا اينما كنتم وفى كل وقت وكل مكان
نتعامل معكم بافضل جوده واحسن اداء واقل الاسعار
مع شركة اركان المملكه انتو تتعاملون مع افضل شركة بالمملكه ككل
لاننا شركة زات باع كبير فى عالم التنظيف على مر السنين ونعمل باقصى جهد من اجل راحتكم اولااا
:::::::::::::::::::::::::::::::::::::
شركة كشف تسربات المياه بجازان




شركة كشف تسربات المياه بخميس مشيط



شركة كشف تسربات المياه بابها



شركة كشف تسربات المياه بالدمام



شركة كشف تسربات المياه بالرياض

شركة نقل اثاث بجازان



تسليك مجارى بالدمام


شركة تسليك مجارى بخميس مشيط



شركة تسليك مجارى بجازان


شركة تسليك مجارى بنجران

شركة مكافحه حشرات بخميس مشيط

شركة تسليك مجارى بابها

شركة نقل عفش بالرياض


شركة نقل عفش بخميس مشيط

مع شركة اركان المملكه نحن معك دائما وحولك نقدم لك كل ماهو جديد وفعال
بمنتهى القوه والسرعه ندعوكم دائما لزياره مؤسسه اركان المملكه للتمتع بكل ما هو جديد وفعال
 

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There seems to be some confusion on the point, but:

http://www.nbcnews.com/politics/2016-election/rubio-makes-unprecedented-bid-keep-delegates-contested-convention-n547646

this suggests that Rubio CAN retain control of at least some of the delegates he won even though he suspended his campaign. There was some confusion on this point here in the past but I thought he could (at least for the moment) control for the first ballot.
 

Prof. Levinson signed this letter to the Senate on Judge Garland's 2A record:

http://www.acslaw.org/sites/default/files/Scholar%20Letter%20to%20Senate%20Judiciary%20Committee.pdf
 

Right, McConnell should certainly take the word of people opposed to the 2nd amendment that the NRA is misrepresenting Garland's 2nd amendment record. It's not like they'd actually find Garland being hostile to the 2nd amendment a good thing, they're objective.
 

Levinson letter: In Parker v. District of Columbia, a case challenging the D.C. handgun ban the Supreme Court ultimately found to violate the Second Amendment in Heller, Judge Garland was one of four judges—including conservative, George H.W. Bush-appointee, A. Raymond Randolph—who voted for the entire D.C. Circuit to rehear, en banc, a three-judge panel’s ruling that the ban violated the Second Amendment. Under the Federal Rules of Appellate Procedure, en banc review is called for when a panel decision conflicts with prior judicial precedent and when the case involves a “question of exceptional importance.” Parker fit both criteria.

It is well established that such procedural votes say nothing about a judge’s views on the substance of the case, or how he or she would have voted on the merits. Yet, Judge Garland’s critics assert that his vote for en banc review “proves” his hostility to the Second Amendment. Any argument that a purely procedural vote reflecting no substantive judgment on the merits of the underlying case is proof that Judge Garland would vote to overturn Heller is specious and dishonest, and unworthy of acceptance by the Committee or the Senate as a whole.


This is not a "purely procedural vote." Judges do not vote for an en banc hearing on a panel decision unless they believe that the "panel decision conflicts with prior judicial precedent," which by definition means that they wish to reverse the panel decision to conform with that prior judicial precedent.


 

One of the causes Brett is concerned with is the significant rate of suicide among divorced white males. Perhaps that rate might be reduced by regulation referenced in dicta in Heller (5-4). Such reduction could improve actually voting for Trump for this portion of his base.
 

https://www.nraila.org/second-amendment/law-reviews/

The NRA cites Prof. Levinson's seminal 2A article that counsels taking the individual rights view seriously even though it might be "embarrassing" to various academics. He later agreed with the result of Heller/McDonald though as an non-originalist, didn't support with its reasoning.

"Opposed to the 2A" is some sort of code, especially when addressed to academics who support an individual rights view. Regardless, they are not telling senators to "trust us," but to have hearings. Would conservatives rely on one side's advocacy group on some other issue? No, they would support hearings to voice both sides.

Reasons for en banc:

https://www.law.cornell.edu/rules/frap/rule_35

e.g.: "the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue"

Which was true. The other "gotcha" I have seen was a regulation John Ashcroft, who signed an announcement of policy that the Bush Administration supported an individual rights view, and other 2A supporters found acceptable.

The third, I guess, is "well Obama nominated him." Hearings could examine the question. Right.
 

I'll always have a fond place in my heart for Sandy, due to that article.

But the fact is, the 2nd amendment is one of the reasons he wants rid of our present Constitution. The fact that it can't, as a practical matter, be repealed? (Because it's popular!)

That's something he cites to demonstrate that Article V is broken. To demonstrate that we need constitutional change outside Article V. You know, the sort of 'change' you get by putting people on the Court who will say the existing language means something different?

So that article doesn't make Sandy a Second amendment supporter. It just makes him a more honest than usual foe of the 2nd amendment. And it certainly doesn't establish that he wouldn't be thrilled to see Scalia replaced with a hardline anti-gunner.

So, I stand by my position: You're not going to convince any ally of the NRA that the NRA is wrong to oppose Garland by collecting the signatures of people who want to be rid of the 2nd amendment. It's just not sensible to think that's a workable tactic.
 

Perhaps Brett could be more honest as to whether he might rely upon 2nd A absolutism to challenge the changing demographics building it into a revised 2nd A at a constitutional convention. Brett recognizes that Heller's (5-4) dicta is a stumbling block in this challenge.
 

Perhaps Shag could be serious for an instant, and stop making what he imagines to be sly insinuations. But I'm not holding my breath.
 

Can you show me where he says that? Plus, it isn't clear that each one of those person (e.g., a person who wrote a book supporting what Heller holds -- individual rights with regulations) opposes the 2A. Again, that is over and over for you code for "how I understand it," which isn't even as Heller does.

Regardless, even granting that, that would mean he thinks the CURRENT Constitution does have a Second Amendment. People want various things in the Constitution amended. You included from what I can tell. But, this doesn't mean people don't have the integrity to explain what people understand the document to mean. OTOH, if you don't think Prof. Levinson even has that minimum amount of integrity, so be it.

But, I don't assume an advocacy group is going to trust those who don't share their beliefs as strongly as they. The average person is at least somewhat pro-choice. I don't think NARAL is going to trust them if they believe the people aren't pure enough. The NRA however isn't at issue here. It's the Senate Judiciary Committee. And, they shouldn't rely on one side either.

Finally, again, based on the two (or three) things cited, the idea that Judge Garland is "against the 2A" has not been shown. The way to determine that is not to take the word of the ideologically self-interested. It's to have a two-sided examination such as hearings.



 

Over the years the Court has changed interpretation/construction of certain provisions in the Constitution as amended. The 2nd A is an example of a change after more than 200 years per Heller (5-4). Such changes can be controversial, especially when based upon strained use of originalism as in Heller (5-4). Consider the changes in various clauses of the 1st A. Saying Judge Garland is against the 2nd A ignores the history of changes in constitutional interpretation/construction and the extent to which such changes remain acceptable. Recall that some originalists have been critical of both the majority and dissenting opinions in their applications of originalism principles [sic] in Heller. Brett and SPAM I AM! are obviously upset that the Court has not expanded the individual right for self-defense in the home to all places, including the 2016 GOP Convention. What if Judge Garland were given a hearing in the Senate? Would it be appropriate for him to respond to Senators about his views on 2n A absolutism?
 

And Brett, I am being serious, not sly. You have provided expaned commentary at this and other blogs on your views.
 

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Something that might be of interest:

http://lsolum.typepad.com/legaltheory/2016/03/legal-theory-bookworm-engines-of-liberty-by-cole.html (Shag might have seen this)

I'm reading this now & it covers same sex marriage, the RKBA and the "war of terror." As described at the link:

"Yet as the award-winning legal scholar David Cole argues in Engines of Liberty, citizen activists are the true drivers of constitutional change. Drawing on interviews with participants in the most successful rights movements of the last 30 years, he shows that time and again, associations of ordinary Americans confronting long odds have managed to transform the nation’s highest law. And they have done so largely through advocacy outside the federal courts altogether."

The author is liberal & married to Judge Nina Pillard ("the next RBG") but:

“Anyone who doubts the ability of Americans to change both policy and law should read David Cole's book. His analysis of how we go about protecting the rights of gun owners is the most accurate I have ever read. This is a must read.” —David Keene, former president of the NRA
 

Today is April Fools Day and several legal blogs are at it again, including Larry Solum's Legal Theory Blog.

By the Bybee [expletives deleted], Larry was too modest to post on his latest SSRN article "How I Became Addicted to Originalism's Fixation Thesis." I don't have the URL for which those interested may Google SSRN for Larry's articles thereon.
 

For some, today is a special day -- their comments are gems.
 

Shag, I assumed it was intended as a sly insinuation, because the alternative was that you had reading comprehension problems. Perhaps some variant of the "gun-aversive dyslexia" that researchers such as Kates have made note of, only more general. "Disagrees-with-me aversive dyslexia, perhaps.
 

Perhaps Brett should review his blog comments over the years. Was Brett dyslexic, aversionally or otherwise, when talking about the effects of his divorce on his mental state and the bad thoughts he had along the lines of the epidemic white divorced males that has been his concern. Brett, to his credit, overcame such bad thoughts, including by his going, in his own words, "international." It seems that Brett is challenging the Heller majority (5-4) decision on the 2nd A, wishing it granted an absolute right everywhere in America, including the 2016 GOP Convention and perhaps even including court houses. I'm not gun averse, as such are needed for policing and military uses when appropriate. But I do not consider Brett a good guy with a gun. Brett may counter that he thinks I'm a bad guy without a gun. I'm not against regulating individual gun permits for which need is properly demonstrated. And I do have a problem with idiots assembling an arsenal of weapons.
 

Well, Shag, you're conflating my support for peaceful gun ownership with using the second amendment to challenge "changing demographics", which I tool to be a reference to genocide. That's the only way I know of changing demographics with a gun.

I do get a mite prickly when somebody implies I'd like to do that sort of thing.
 

Surely Brett, even the history you know demonstrates how weaponry intimidated minorities, such as the KKK had done over many decades even well into the 20th century.. Such intimidation may keep minorities in their place. The demographics haven't fully changed as yet but based upon surveys of at least Trump supporters, older less educated white males are concerned with their lot, most likely ones who were not concerned with the lot of minorities. Guns have not been as readily available to certain minorities in America over its history. Perhaps the inequality in arms plays a part with respect to the changing demographics. Consider the once bad dream of a million man march of white males with open carry. What was its goal? So much more can be said about the role of arms in America. I assume white males today are well aware of how certain minorities have been intimidated by the much better armed majority now dwindling. Such awareness may be creating fears of the changing demographics when the shoe may be on the other foot.

But I don't think genocide would result in this day and age. In the short term, intimidation via arms may appeal to these undereducated white males. As to a constitutional convention, some might propose amending the 2nd A to provide for the power of arms to intimidate.

The founders, framers and ratifiers of the 1787 Constitution provided for responding to insurrections, in particular the concerns of those from the slave states of revolts by slaves. The Bill of Rights provided further protections for slavery. The Reconstruction Amendments were not properly honored for many, many decades. The civil rights movement that followed Brown v. Bd. of Educ. (1954) was resented primarily in the former slave states. Some, much, of such resentment continues to the present, openly showing its face during the current presidential campaign. How will those fearing the changing demographics react? Perhaps these undereducated white males should be getting at begatting more prolifically (lawfully, of course).
 

So you didn't mean my support for the 2nd amendment implied I wanted genocide, just a reign of terror.

You are despicable, Shag, in addition to being a purveyor of annoying cutsey names.
 

A lot of bad blood there but "intimidation via arms" and "reign of terror" is not quite the same. Moving to the original subject, I respect the integrity of Prof. Levinson et. al.

Anyway, reference was made to: "The Bill of Rights provided further protections for slavery." During the Reconstruction, the 13/14A was deemed necessary to deal with the BOR not being protected. Other than Dred Scott v. Sanford protection of "property," the BOR protected slavery largely by inaction. State militia also protected slavery though militia would be in place for state police matters regardless.

This inaction included blocking abolitionist speech and literature (including via the mails though federal law on the books eventually blocked this), alleged fugitive slaves not getting proper due process protections and cruel and unusual punishments. Some even deemed certain federal slavery protections to illegitimately interfere with state rights including the Fugitive Slave Law of 1850.

As noted by Justice Alito in McDonald v. Chicago: "The constitutional Amendments adopted in the aftermath of the Civil War fundamentally altered our country’s federal system." (Alito's opinion covers the history here including incorporation matters in impressive fashion even if you don't support the 2A conclusions)

The opinion says "Self-defense is a basic right, recognized by many legal systems from ancient times to the present day." And, that is true -- it is a "privilege" of citizenship etc. I am inclined to think it is a 9A right with the 2A passed for the purpose of addressing other matters. This would include the not trivial right of all people, including blacks/women/gays to have an equal right to join the militia which like a jury provides a citizen controlled method of government. Plus state discretion over militia matters. See also how originally states could establish religions.

But, as Alito notes, "individual self-defense is the central component" of the 2A according to Heller. See also, his concurrence in the stun gun case focused on the self-defense needs of an at risk woman.

Later in the opinion, however, Alito noted:

By the 1850’s, the perceived threat that had prompted the inclusion of the Second Amendment in the Bill of Rights—the fear that the National Government would disarm the universal militia—had largely faded as a popular concern, but the right to keep and bear arms was highly valued for purposes of self-defense.

And, Prof. Akhil Amar (a supporter of Judge Garland) agreed with this idea in his book "Bill of Right" -- over time, the "militia" view of the 2A changed to an "individual rights" view. Self-defense would protect blacks too from Klan violence etc. Overall, I think the 14A protects a right to have weapons for self-defense. As noted in the book I referenced, this is helped by how the people currently understand things too including loads of liberals. Background checks etc. allowed.

Don't know what Garland believes but his m.o. suggests he would follow Heller/McDonald as precedent. He has done so regarding Citizens United; in fact, he expanded its reach. For what little that apparently is worth even to those who cry out loudly when people want to go back to the earlier more regulation friendly position ... one that reflects (again, shrugs) historical accepted practice.
 

Regarding Judge Garland's m.o. in relation to Heller/McDonald and Citizens United, much of that may reflect the requirement that judges on a Court of Appeals follow the law as laid down by the Supreme Court, even in that Court's 5-4 decisions. Joe presents good discussion of the changes regarding views, including of the public, on the 2nd A. But this isn't originalism, rather it's an evolution. As to self-defense, it's not specified in the 2nd A, or in the remainder of the Constitution. The common law of England on self-defense (judge made law!) evolved over time. Self-defense in the Colonies was not uniform was not uniform in the Colonies' incorporation of English common law. The states continued with common law but utilized statuies on self-defense, and such statutes were not uniform. Since the "history" of self-defense has evolved and seems to continue to evolve, what did the Heller 5-4 decision have to say about the differing views of self-defense, particularly among the states (cue McDonald for the states?)? An evolving self-defense invoked by Heller/McDonald suggests an evolving Constitution that does not specify individual self-defense, especially as to the 2nd A. Keep in mind that Heller/McDonald limit the 2nd A to certain weapons in the home for self-defense.

Regarding Brett's response to my previous comment, on several occasions at this and other threads on this Blog, with discussions on a 2nd constitutional convention, I made an effort to get Brett and SPAM I AM! to address how at such a convention they might wish to amend the 2nd A particularly in the light of the upcoming demographic changes. Neither took the bait, although Brett recently nibbled with his declining genocide, a word he introduced, not I. Rather than laying out out how he might wish to see the 2nd A changed, whether on its own or at a con-con, he accuses me of suggesting a "reign of terror" whereas I had discussed intimidation via arms. As Joe points out, there are differences. I don't know how Brett - SPAM I AM! - might wish to see the 2nd A changed. Brett seems to me to be for an absolute 2nd A everywhere, not just the home.

Much earlier in this thread I made passing reference to Sandy's UTex campus being subject to TX carry laws. I'm not sure what Sandy's views are, including how he feels faculty might respond under certain circumstances in the course of debate that might at times be contentious. Imagine a law professor at UT Law School teaching in the style of the fictional law prof. Charles Kingsfield in The Paper Chase, in a ConLaw course, on discussions of Heller/McDonald, with back and forth between the professor and one or more students, who are carrying, on the history of the 2nd A, including the dicta inHeller/McDonald on limitations. Might that professor be intimidated by carrying students? Would the Professor decide to carryfor self-defense? Imagine.
 

Shag: Imagine

Ignorance allows imagination to run riot.

I live with open and concealed carry and do not give it a second thought. I have far more chance of being killed by lightning than some pissed off neighbor legally carrying a firearm.

Firearms are simple tools people, not some demon possessed totems.

Congress really needs to use its Militia Clause powers to train people in the safe use and storage of firearms to dispel this ignorance.

You think I am exaggerating? Watch this video of some clueless Millennial firearm prohibitionists being introduced to firearms for the first time.

https://youtu.be/j6Ex2rVOUWs

Good grief!
 

Justice Stevens in McDonald v. Chicago discusses the right to self-defense.

The issue is not explicitly enumerated (see 9A though) but to me fits within various broad terms like "liberty" or "privilege" etc. But, over time, it was understood as an aspect of the 2A. And, current understanding, not some artificial originalism, is quite important when applying constitutional law.

The dissent in the Quilici v. Morton Grove case back in the early 1980s also seemed logical to me as to the right to privacy including protecting the home. Heller's comment that the right was specifically strong at the home seemed copacetic.

https://scholar.google.com/scholar_case?case=2213243195673531187&hl=en&as_sdt=6&as_vis=1&oi=scholarr


 

A judge's technique on the court of appeals is only of limited value for prediction, yes, but has over the years been a helpful factor including for people like Alito and RBG. Plus, if we are going to use his votes on two matters here as so important, I thought it useful to look at his voting there as a whole.

Taking everything into consideration, and this causes some liberals to be concerned, Judge Garland appears likely not to uproot recent precedent. Rick Hasen, e.g., of Election Law Blog thinks he will do that in respect to election law. It's supposition though & ideological interest groups aren't obligated to "trust" it.





 

SPAM I AM!'s:

"Firearms are simple tools people, not some demon possessed totems."

fails to address some of the "simple" obsessed with their right to carry both openly and concealed with such tools wherever. But SPAM I AM! fails to disclose if he carries openly and/or concealed. I can understand SPAM I AM! not giving this a second thought but seriously question his first thought.
 

I live in "Mayberry" here and I do not recall a violent street crime which would cause me to consider concealed carry. Most open carry here are folks hunting, target shooting or attending some firearm function.
 

I can picture SPAM I AM! as a Barney Fife in his "Mayberry" community, with Aunt Bea baking pies for him, and Andy watching out that Barney's gun doesn't go off accidentally. But how does SPAM I AM!'s "Mayberry" community compare with some TX communities where individual 2nd A rights are collectively arranged to open carry, not in a hunting area, but a restaurant at which families are dining. SPAM I AM!'s inability to distinguish between apples and oranges demonstrates he doesn't know his derriere from his elbow. His earlier:

"Congress really needs to use its Militia Clause powers to train people in the safe use and storage of firearms to dispel this ignorance."

seems to be aimed not at traditional State Militia but at private posses. The Militia Clause is a tad dormant, as observed by the late Justice Scalla in Heller (5-4) in "disregarding" the 2nd A's prefatory clause in order to establish an individual right. I would be interested in what the papers of the majority-5 might reflect on how the dicta came about on limitations. Perhaps that was the only way to get to 5.
 

Shag: But how does SPAM I AM!'s "Mayberry" community compare with some TX communities where individual 2nd A rights are collectively arranged to open carry, not in a hunting area, but a restaurant at which families are dining.

Folks concealed carry in restaurants in which families are dining.

Don't faint.

BD: "Congress really needs to use its Militia Clause powers to train people in the safe use and storage of firearms to dispel this ignorance."

Shag: seems to be aimed not at traditional State Militia but at private posses.


Once again, the Founders considered the armed citizenry to be the militia. The Militia Clause and all parts of the Second Amendment work seamlessly together.

Congress has already exercised its Militia Clause power to declare all fighting age men to be the unorganized militia and subject to call up. Nothing prevents Congress from designating then entire population as militia and training them.

 

Feeling nostalgic, did a search on the "Second Amendment" in the blog search box. Bunch of posts came up, including some by those who don't allow comments now. For instance: http://balkin.blogspot.com/2008/03/three-more-observations-about-gun-case.html

Looking at the posts, various people have stopped commenting over the years; a few familiar names continue. I'm not in that thread but was around in others.
 

SPAM I AM!:

"Once again, the Founders considered the armed citizenry to be the militia. The Militia Clause and all parts of the Second Amendment work seamlessly together."

demonstrates his mishistory on the Militia Clause of the 1787 Constitution. As to the seamlessness claim, SPAM I AM! ignores the beginning of the 2nd A (as did the majority-5 in heller): "A well regulated Militia, being necessary to the security of a free State, ...."

And SPAM I AM!'s:

"Nothing prevents Congress from designating then entire population as militia and training them."

is just another of SPAM I AM!'s wet dreams in his +Mayberry."



 

Classic Star Trek episode on last night -- "The City on The Edge of Forever."

They time traveled back to the 1930s and a bum accidentally killed himself with McCoy's phaser. A "dangerous and unusual" weapon for that day?
 

Joe, that Star Trek episode might suggest an evolving 2nd A regarding the type of arms that might come into comon use. Of course the 1930s was well before Heller (5-4, 2008) changed the meaning of the 2nd A at the Court. Maybe when time travel to the past technology is developed, it might provide a means for determining how accurate originalists are/have been on their interpretations/constructions of the Constitution.
 

Here's a variation on an old joke:

The Donald and Ted Cruz go out on a foursome with their wives, respectively (and with respect) Melania and Heidi to discuss the campaign and their differences. It got quite heated between the Donald and Ted. Melania and Heidi come up with a solution for the foursome: force 'em, the Donald and Ted, to drop out as candidates.

]The old joke "defines" a foursome similarly but in a different context.]
 

Shag doesn't just VOTE blue.
 

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