Monday, November 25, 2019

McCulloch, Slavery, and the Sweeping Clause

John Mikhail

For the symposium on David S. Schwartz, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (Oxford University Press, 2019).

[Note: This post has been updated with a new title and minor revisions.]

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”   This famous passage in McCulloch can be read in at least two different ways.  On a narrow reading, the ends in question are Congress’s enumerated powers, and the means to which the passage refers are whatever incidental powers are given by the first half of the Necessary and Proper Clause (the “foregoing powers” provision) to carry those enumerated powers into execution.   On a broad reading, these ends also include the six great objects of the Constitution stated in the Preamble, and the means to achieve these purposes include all of the express and implied powers to which the second half of the Necessary and Proper Clause (the “all other powers” provision, aka “the Sweeping Clause”) refers.

Modern courts and scholars have generally adopted the narrow reading.  All of the opinions in NFIB v. Sebelius, for example, limit their attention to the foregoing powers provision and its connection to enumerated powers when considering the scope of the Necessary and Proper Clause.  None of the Justices contemplates a broader use of McCulloch’s central holding, according to which the individual mandate could be justified simply as a necessary and proper means to promote the general welfare.  Likewise, most of Marshall’s leading biographers and commentators—for example, Beveridge, White, Smith, Newmeyer, Killenbeck, and Ellis—presuppose a narrow reading of the “Let the end be legitimate” passage.   When discussing this passage and the ends “within the scope of the constitution” to which Marshall refers, none of these scholars pauses to consider whether these ends include the objects enumerated in the Preamble.

David Schwartz is a welcome exception to this pattern.  In his fascinating new book, The Spirit of the Constitution, Schwartz highlights the fundamental ambiguity of the “let the end be legitimate” passage in the course of making clear just how evasive and unsatisfying Marshall’s entire opinion in McCulloch really is.  Most scholars recognize that Marshall’s text supports different and, at times, incompatible readings of implied powers, some breathtakingly wide and others cautiously narrow.  With unrivaled depth, sophistication, and attention to detail, Schwartz hammers home this point like never before.  Along the way, he places certain nationalist readings of McCulloch that have been ignored or minimized more squarely on the table, including two that are especially noteworthy: the early Federalist theory of implied powers rooted in the Preamble and Sweeping Clause, and a narrower, but still robust, conception of “implied commerce powers” given by the Commerce Clause and the foregoing powers provision.

Schwartz focuses most of his attention on implied commerce powers.  His treatment of this subject, and of Marshall’s ambivalence toward taking full advantage of the power to pass all necessary and proper laws for carrying into execution the power to regulate interstate commerce, is simply masterful.  Schwartz’s careful analysis of the many subtle lines of constitutional argument flowing from McCulloch through Gibbons, Miln, Cooley, Dewitt, and The Legal Tender Cases, and the rest of the nineteenth-century commerce power canon, is likewise brilliant and penetrating, and it has taught me a great deal I did not know or fully appreciate about these cases.  The same is true of his dazzling discussion of how implied commerce powers fared in the Lochner, New Deal, Civil Rights, and Rehnquist and Roberts Court eras.  Finally, as if that weren’t enough, Schwartz also supplies a fresh new perspective on McCulloch’s relationship to the enforcement provisions of the Reconstruction Amendments.  All this makes the book invaluable reading for constitutional scholars, particularly those of us tasked with teaching McCulloch and its progeny to law students. 

Although Schwartz’s focus on implied commerce powers is understandable from a modern doctrinal perspective, at the end of the day I’m not convinced that these powers, grounded in the Commerce Clause and the foregoing powers provision, are the best lens through which to understand the significance of McCulloch.  Arguably, a better framework is the other nationalist argument implicated by the “let the end be legitimate” passage—the original theory of implied powers, grounded in the Preamble and Sweeping Clause, which received perhaps its most significant early expression in legislative debates over slavery and the First Bank of the United States.  The implied commerce powers story begins primarily with Gibbons and, as Schwartz so helpfully recounts, it eventually comes to dominate the Supreme Court’s implied powers jurisprudence in cases like Darby, Wrightwood Dairy, Heart of Atlanta, and Raich.  McCulloch itself, however, is arguably not an enumerated powers/foregoing powers provision case at all.  Rather, it is better understood as a case in which Marshall kept alive the older Federalist theory of implied powers, rooted primarily in the Sweeping Clause’s reference to “other powers vested by this Constitution in the Government of the United States,” while nonetheless shrouding that theory in a certain amount of strategic ambiguity and otherwise signaling that the Court would not permit implied powers to be used to threaten slavery.

To see why this alternative reading of McCulloch seems plausible, it helps to recall some key facts about Marshall and the deep historical background to his analysis of implied powers in that case.  At least five key episodes or “moments” in Marshall’s life stand out in this regard, all of which help to illuminate and reinforce Schwartz’s thesis that Marshall’s embrace of implied powers was more cautious than is commonly recognized, and to explain why he seems correct to conclude that McCulloch “offered something to both nationalists and moderate Jeffersonian Republicans” in 1819 and “is simply too ambiguous to mandate a particular result in most contested cases about congressional power” today (58, 253). 


First, it is important to realize that along with Edmund Randolph, George Nicholas, James Madison, and Francis Corbin, Marshall was a member of the five-member committee that drew up the “Form of Ratification” with which the Virginia ratifying convention adopted the Constitution.  According to this carefully worded document, the convention declared that:

the powers granted under the Constitution being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination can be cancelled abridged restrained or modified by the Congress by the Senate or House of Representatives acting in any Capacity by the President or any Department or Officer of the United States except in those instances in which power is given by the Constitution for those purposes.
The most pertinent fact about this convoluted language is that it implies that all of the powers delegated by the Constitution are vested directly in Congress, the President, or other Departments or Officers of the United States. The purpose of this enumeration was to counteract the dangerous provision of the Sweeping Clause that had caused Randolph and George Mason so much anxiety in Philadelphia and had prevented them and Elbridge Gerry from signing the Constitution in the first place: namely, its reference to “other powers” vested in the Government of the United States, over and above the powers vested in Congress or other Departments or Officers of the United States.  By liquidating the troubling ambiguity created by this clause, Randolph informed the convention, the “Form of Ratification” would enable Virginians to consider “every exercise of a power not expressly delegated” by the Constitution to be a violation of that instrument.  Laying the predicate for what eventually became the compact theory of the Constitution, Nicholas went further and explained that Randolph’s idea would justify a contractual understanding of ratification:

Mr. Nicholas contended that the language of the proposed ratification would secure everything which Gentlemen desired, as it declared that all the powers vested in the Constitution were derived from the people, and might be resumed by them whensoever they should be perverted to their injury and oppression; and that every power not granted thereby, remained at their will, no danger whatever could arise.  For says he, these expressions will become part of the contract.  The Constitution cannot be binding on Virginia, but with these conditions.  If thirteen individuals are about to make a contract, and one agrees to it, but at the same time declares that he understands its meaning, signification, and intent, to be, what the words of the contract plainly and obviously denote; that it is not to be construed so as to impose any supplementary condition upon him, and that he is to be exonerated from it, whensoever any such imposition shall be attempted – I ask whether in this case, these conditions on which he assented to it, would not be binding on the other twelve?  In like manner these conditions will be binding on Congress.  They can exercise no power that is not expressly granted to them.
The implied power Randolph, Nicholas, and other Virginians feared most, of course, was the power to regulate or even abolish slavery.  Despite Randolph’s and Madison’s protests to the contrary, Mason and Patrick Henry had made abundantly clear during the convention that the Constitution as it was actually written and plausibly interpreted did not adequately guard against this perceived danger.  The same realization and felt need to protect slavery led the South Carolina convention to adopt the Constitution on the understanding that “no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union.”  Virginia’s “Form of Ratification” was superficially different than, but functionally equivalent to, South Carolina’s stipulation, since it, too, effectively declared that the federal government consisted of only expressly delegated powers.


Like most insiders who played a leading role at the Virginia convention, Marshall presumably knew all of this.  He also knew what happened next: although Virginia and South Carolina ratified the Constitution with these stipulations, their respective efforts to amend the Constitution in the First Congress to codify these limits on implied government powers were spectacular failures.  South Carolina’s effort was explicit and direct: to add the word “expressly” to the future Tenth Amendment so that, like the Articles of Confederation, the Constitution would declare that all powers not “expressly delegated” were reserved to the States.  Led by Madison, Virginia’s primary strategy was subtle and indirect: to oppose adding the red-flag word “expressly,” but to incorporate the essence of Virginia’s Form of Ratification into the Constitution, so that the Constitution would first affirm that all powers delegated by it are given directly to Congress or other Departments or Officers of the United States, and thereafter declare that “the powers not delegated by the Constitution . . . are reserved to the States.”  Madison’s clever attempt to limit implied powers in this two-step fashion without using the controversial “expressly delegated” formula was defeated when the prefatory language to his new seventh Article, declaring that all of the powers granted by the Constitution “are appropriated to the departments to which they are respectively distributed,” was first revised in committee and then struck altogether.  Later, two Connecticut delegates, Roger Sherman and Oliver Ellsworth, each inserted a version of the phrase “to the [Government of the] United States” after “delegated by the Constitution” in Madison’s original proposal.  Their likely purpose in doing so was to preserve the implied national and corporate powers delegated by the Constitution to the United States.

At this point in time, Sherman, Ellsworth, and most Federalists in Congress probably agreed with James Wilson that, for many purposes, the United States should be considered “one undivided, independent nation,” which possessed all of the powers of any other nation; with John Jay, who observed that the Constitution vested the federal government “with sufficient powers for all general and national purposes;” and with Madison himself, who candidly admitted when he proposed his amendments that, because of the Sweeping Clause, the Government of the United States possessed the implied power “to fulfill every purpose for which the Government was established.”  Unlike Madison, however, Sherman, Ellsworth, and most Northern members of Congress were not obsessed by the prospect of abolition or other regulations of domestic slavery.  Most of them understood that the Constitution vested the United States with implied national and corporate powers, and they wanted to preserve the full extent of those powers in order to ensure that the Constitution would endure and could adapt to what Marshall would later call “the various crises of human affairs.  


Despite his admiration for Hamilton, Marshall was not a “High” Federalist, but a Virginia Federalist—a “defensive nationalist,” in Schwartz’s apt description, rather than an “aggressive” one.  Like virtually all elite Virginians whose current and future wealth rested on chattel slavery, Marshall probably did not believe, or at any rate would not countenance the idea, that Congress could abolish slavery.  Nonetheless, Marshall was keenly aware of what one might call the “slavery syllogism” that lurked just below the surface of any full-throated appeal to implied government powers, whether rooted in the Preamble and Sweeping Clause, or as incidents to the United States' status as a sovereign nation or legal corporation.  Stripped down to its essentials, that argument ran as follows:

(1)   Congress may choose any appropriate means to fulfill any constitutional end.
(2)   The purposes listed in the Preamble and General Welfare Clause are constitutional ends.
(3)   Therefore, Congress can pass laws to promote the general welfare.
(4)   If Congress can pass laws to promote the general welfare, then it can abolish slavery.

The particular appeal to the general welfare in this argument was common at the founding, but non-essential, because a similar argument could be, and sometimes was, framed using other constitutional ends, such as providing for the common defense or securing the blessings of liberty.  Regardless, the standard Southern rebuttal to this argument was pointed and forceful:

(5)   Congress cannot abolish slavery.
(6)   Therefore, Congress may not pass laws to promote the general welfare.
(7)   Therefore, Congress may not choose any appropriate means to fulfill any constitutional end.

Throughout the early Republic, most of Virginia’s leading constitutionalists—Madison, Jefferson, Randolph, Tucker, Roane, Taylor, and others—were relentlessly alert to the argument laid out in (1)-(4) and fiercely committed to its refutation in (5)-(7).  They wanted (5) to be apodictic, but at least some of them knew deep down that it was not even true, at least on a natural and plausible reading of the Constitution.  Madison and Randolph, for example, knew that the chief draftsmen of the Constitution—James Wilson and Gouverneur Morris—embraced (1)-(2), drafted the Preamble and Sweeping Clause to reinforce the ability of the government to fulfill its purposes, and did not oppose the conclusions that followed in (3)-(4).  For example, they knew that Morris swore in Philadelphia that he “would never concur in upholding domestic slavery,” and that Wilson told the Pennsylvania ratifying convention that Congress would soon “have power to exterminate slavery from within our borders” so that “the rights of mankind will be acknowledged and established throughout the union.”  

When Patrick Henry invoked the slavery syllogism in order to defeat the Constitution at the Virginia ratifying convention, Randolph and Madison were alarmed and tried to persuade the convention that Henry was mistaken.  Their arguments, however, were weak and ineffective.  For example, Randolph argued that a prohibition on abolition could be inferred directly from the Fugitive Slave Clause, and Madison resorted to quibbling over whether abolition would, in fact, promote the general welfare.  Madison then retreated further by shifting gears and asking why northern congressmen would even contemplate measures that would strip slaveholders of their property and “alienate the affections of, five-thirteenths of the Union.”  “Why was nothing of this sort aimed at before?” Madison asked.  “I believe such an idea never entered into any American breast.”

Northern breasts felt differently about slavery, of course, as Madison and other Virginians quickly discovered, even if they did not fully realize it before.  In February 1790, only a few months after Madison’s failed attempt to restrict implied government powers by incorporating Virginia’s Form of Ratification into the text of the Constitution, a series of abolition petitions were presented to the First Congress by Quakers in New York and Pennsylvania and the Pennsylvania Abolition Society (PAS).  The last and most far-reaching of these memorials, submitted by the PAS and signed by Benjamin Franklin, drew upon the slavery syllogism and the government’s implied power to “promot[e] the Welfare & secur[e] the blessings of liberty to the people of the United States” to call for the abolition of slavery.  

Marshall does not discuss Franklin's dramatic use of this Preamble-based argument or any other aspect of the 1790 abolition petitions in his five-volume biography of George Washington, despite devoting many pages to other legislative proceedings taking place at that time.  Likewise, there do not appear to be any references to these events in his collected papers.  It seems inconceivable that Marshall was not aware of this extraordinarily divisive appeal to the slavery syllogism in the First Congress, however, and plausible to assume that it influenced his attitudes toward the implied powers of the United States.  Schwartz briefly discusses Franklin's petition, but he does so exclusively in the context of the commerce power (35-36).  The Preamble and Sweeping Clause, however, are a more suitable lens through which to consider Franklin's petition and its potential impact on Marshall.

The Bank

In the course of writing his Life of Washington, Marshall became intimately familiar not only with the opinions on the bank written by Jefferson, Randolph, and Hamilton, to which he had special access, but also with the public debates over the bank in the First Congress, including the broad appeals to implied powers made by its main advocates, such as Fisher Ames, Elias Boudinot, Elbridge Gerry, John Lawrence, Theodore Sedgwick, William L. Smith, and John Vining (all of whom Marshall lists by name in his biography).  As his carefully-worded summary of these debates in Life of Washington makes clear, Marshall understood that a key difference between opponents of the bank like Madison, on the one hand, and its leading supporters, on the other, was the precise part of the Necessary and Proper Clause on which they focused their attention.  According to Marshall, Madison emphasized the foregoing powers provision and its connection to the “specified” powers of Congress.  By contrast, the bank’s supporters focused primarily on the Sweeping Clause and its reference to “the powers vested in the government [of the United States].  They also argued that “incidental as well as express powers must necessarily belong to every government.”

Marshall’s summary of these floor debates is accurate and revealing as far as it goes, but it leaves much to be desired. In fact, a surprising number of congressmen relied upon the Preamble to justify the power to charter a national bank.  For example, in one particularly important argument, from which Hamilton—and also Marshall—may have later drawn, Ames maintained that Congress was authorized to promote “the end[s] for which the constitution was adopted.” Ames then elaborated this principle by explaining that the powers delegated to the United States should be construed to promote “the good of society, and the ends for which the government was adopted, without impairing the rights of any man, or the powers of any State.”  Likewise, several members relied upon the Constitution’s reference to “other powers possessed by the United States or upon the government’s implied national or corporate powers.  Furthermore, the vote in the House, 39-20, on the bank bill was lopsided and sectional: 34 out of 35 members from the eight states above the Mason-Dixon Line voted in favor of the bill, while 19 out of 24 members from the five Southern states (including every delegate from Virginia) voted against it.  Marshall could have made all of this clear, but he did not—and neither does Schwartz in his short summary of these debates (39-40).  Nevertheless, all of these facts, and Marshall’s decision to avoid discussing them in his Life of Washington, seem critical to understanding his attitudes to implied powers and what he intended his opinion in McCulloch to accomplish.

US v. Fisher

Consider finally Marshall’s first Necessary and Proper Clause case, United States v. Fisher (1805), which Schwartz discusses briefly in several chapters of The Spirit of the Constitution (11, 26, 165).  The main constitutional question in this case was whether Congress could assign the United States an absolute priority over the States and all other creditors in bankruptcy proceedings.  Arguing that it could not, one of Fisher’s lawyers, Jared Ingersoll, asked:

Under what clause of the constitution is such a power given to congress?  Is it under the general power to make all laws necessary and proper for carrying into execution the particular powers specified?  If so, where is the necessity or where is the propriety of such a provision, and to the exercise of what other power is it necessary?
Responding to this challenge for the government, the US Attorney, Alexander Dallas replied:

Congress have duties and powers expressly given, and a right to make all laws necessary to enable them to perform those duties, and to exercise those powers.  They have a power to borrow money, and it is their duty to provide for its payment.  For this purpose, they must raise a revenue, and, to protect that revenue from frauds, a power is necessary to claim a priority of payment.
In sum, Dallas presented the Court with a narrow foundation for upholding the law based upon the enumerated power to borrow money, along with a second reason, rooted in the “duty” of Congress to repay the national debt.  Notably, Marshall declined to accept Dallas’ first offer.  Instead, he seized upon Dallas’ second idea, reformulated it, and upheld the law on this broader basis.

Marshall’s analysis proceeded in four steps.  First, he explained that law at issue was grounded in the legislative authority given to Congress by the Necessary and Proper Clause, which, unlike both Ingersoll and Dallas, Marshall paraphrased in the broadest possible terms by invoking the Sweeping Clause rather than the narrower language of the foregoing powers provision:

It is claimed under the authority to make all laws which shall be necessary and proper to carry into execution the powers vested by the constitution in the government of the United States, or in any department or officer thereof.
Second, Marshall supplied a gloss on this language that rejected both tenets of the standard Jeffersonian construction of the foregoing powers provision Ingersoll tacitly invoked: “indispensably necessary” means and “specified” ends.  Instead of this unduly restrictive formula, Marshall offered a more flexible characterization of the government’s implied powers:

In construing this clause [i.e., the Sweeping Clause] it would be incorrect, and would produce endless difficulties, if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power.  Where various systems might be adopted for that purpose, it might be said with respect to each, that it was not necessary because the end might be obtained by other means. Congress must possess the choice of means and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the constitution.
In considering this passage, many commentators, including Schwartz (26), focus on the first part of Marshall’s formula, correctly noting that it anticipated his influential argument in McCulloch that “necessary” does not mean “absolutely” or “indispensably necessary, but something more akin to “conducive to.”  Equally important and perhaps more so, however, is the fact that Marshall quietly restated and enlarged the scope of powers or “ends” carried into effect by the Sweeping Clause.  According to Marshall, these need not be “specified” powers.  Instead, they simply must be powers “granted by the Constitution.”

Third, drawing upon this more flexible formula, Marshall clarified that the power carried into effect by the Sweeping Clause in the circumstances of Fisher was not an enumerated power at all, but rather the government’s implied power to pay the debts of the United States.  Marshall wrote:

The government is to pay the debt of the union, and must be authorized to use the means which appear to itself most eligible to effect that object. It has consequently a right to make remittances by bills or otherwise, and to take those precautions which will render the transaction safe.
Finally, Marshall responded to the objection that recognizing an absolute preference for the United States against all other creditors was an unjustified assertion of a royal prerogative power that would unfairly interfere with state sovereignty and comparable state laws by pointing to the Supremacy Clause:

This claim of priority on the part of the United States will, it has been said, interfere with the right of the state sovereignties respecting the dignity of debts, and will defeat the measures they have a right to adopt to secure themselves against delinquencies on the part of their own revenue officers.
But this is an objection to the constitution itself. The mischief suggested, so far as it can really happen, is the necessary consequence of the supremacy of the laws of the United States on all subjects to which the legislative power of congress extends.
Although most commentators have focused their attention elsewhere, the most significant step in Marshall’s analysis is arguably the third one.  The main lesson it teaches us is that the Sweeping Clause can be used to carry into effect implied powers as well as enumerated ones.  Among other things, Fisher stands for the proposition that Congress can choose any appropriate means to pay the national debt, not just laws that carry into effect the enumerated power to levy taxes.  Because of the extraordinary nature of the power in question, Fisher also reveals that the implied powers encompassed by the Sweeping Clause can include “great” powers, which extend beyond even the prerogatives of the British crown (see, e.g., 2 Cranch at 370-73, 378-80; 3 Bl. Com. at 420).  As such, Fisher not only conflicts with the conventional modern interpretation of the General Welfare Clause in cases such as United States v. Butler.  It also serves as a striking counterexample to the most recent “enumerationist” theory of the Necessary and Proper Clause, which limits Congress to the incidental authority to carry into effect enumerated powers and “does not license the exercise of any ‘great substantive and independent power[s]’ beyond those specifically enumerated” (Roberts, C.J., in Sebelius).

Madison first popularized this enumerationist reading of the Necessary and Proper Clause in his arguments against the first bank, which he later reinforced in his Virginia Report of 1800 and his presidential veto of the bonus bill in 1817.  Chief Justice Chase advanced a similar doctrine in Hepburn v. Griswold and The Legal Tender Cases, as did Chief Justice Roberts in Sebelius.  Yet this narrow theory of implied powers is at variance with Marshall’s opinion in Fisher.  Unlike Madison, Chase, and Roberts, Marshall does not assume that the Sweeping Clause is limited to carrying into execution “express powers” or “powers enumerated in the Constitution.”  Nor does he utilize the great powers theory on which he is alleged to have relied in McCulloch.  On the contrary, his opinion in Fisher clearly illustrates why those conceptions of implied powers are too limited. 


What overarching lessons should we draw from Marshall’s previous encounters with the Sweeping Clause?  Opinions will vary, but my own view is that they support Schwartz’s thesis that McCulloch’s embrace of implied powers was deliberately ambiguous.  Marshall could have written: “Let the power be legitimate, let it be enumerated in the Constitution, and all means which are appropriate, which are plainly adapted to that power, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”  That is how John Taylor conveniently suggested the “let the end be legitimate” passage should be interpreted in Construction Construed and Constitutions Vindicated (1820), explaining: “By ‘ends’ the court seems to understand expressed powers, and by ‘means’ the execution of those expressed powers.”  Conversely, Marshall could have made clear that crucial phrases in his opinion such as “[ends] within the scope of the Constitution” or “objects entrusted to the government” were meant to include the ends or objects of the Constitution declared in the Preamble (or, for that matter, in the General Welfare Clause).  As Schwartz reminds us (55), that is what William Pinkney evidently invited the Court to do when he quoted the Preamble in the most soaring moment of his extraordinary oral argument in McCulloch, which Joseph Story later described as the greatest speech he had ever heard.  

The fact that Marshall did neither of these things, but rather crafted this passage and other key parts of his opinion in a strategically ambiguous fashion, makes McCulloch fun to teach, easy to cite, but, in the final analysis, an uncertain basis on which to resolve our deepest questions about implied powers.  In a delightful twist, Schwartz concludes his marvelous study of the 200 year Odyssey of McCulloch  v. Maryland” by encouraging us to spend less time with McCulloch and more time with the founding-era precedent of which  it was merely a pale echo—Hamilton's opinion in support of the first Bank of the United States (254).  I'm inclined to agree, but I would extend his provocative point even further.  Ultimately, Fisher and the earliest legislative debates over ratification, amendments, abolition, and the bank may also be a more appropriate means for clarifying how the Sweeping Clause was originally understood.

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