May 10, 2010 – Federalist No. 9 – The Union as a Safeguard Against Domestic Faction and Insurrection, for the Indpendent Journal (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Sunday, May 9th, 2010

Federalist Papers 9 and 10, though written by two different authors (Hamilton and Madison, respectively), both address the benefits from large “confederate republics” for internal peace and political stability. Of the two, Federalist 9 is the less momentous, but it raises a number of points that apply as well to other papers that follow.

First, there is the matter of defining terms. Throughout the Federalist, the writers define terms that often are used rather flexibly by others, including “republic” and, here, “Confederate Republic.” Hamilton in Federalist 9 wants to let his readers know precisely what distinctions he is drawing. Hamilton defines a confederate republic as a “convention by which several smaller states agree to become members of a larger one.” While that distinguished such a polity from a monarchy or an aristocratic republic (Rome and Venice), the definition leaves plenty of interpretive room to accommodate different types of confederacies, a discretion Hamilton and the others use to their advantage.

Second, Hamilton responds to the Antifederalist charge of “consolidation,” a frequently-used disparagement at the time that invoked images of a distant, tyrannical, and out-of-touch centralized government and of destruction of state-level authority. (Were they onto something?) Such consolidated government was said to be the opposite of a confederacy. The proposed constitution, Hamilton responds, does not abolish the states, but, rather, makes them a constituent part of the national sovereignty (an issue explored in more detail in future papers) and leaves with them certain exclusive and very important aspects of sovereign power (again, to be examined further in subsequent papers).

Hamilton’s approach accomplishes a couple of important goals and reveals a strategy followed over and over by the writers. For one thing, he ties the new Constitution to the old Articles. That creates the illusion of constancy, important for gaining political acceptance of the new plan. Placing the government under the Constitution (“strong” federalism) on the same continuum as that under the Articles (“weak” federalism) makes the difference between the two just a matter of degree—and an advantageous degree, at that—rather than of kind. This illusion is also important for blurring the revolutionary origins of the Constitution in a process that ignored the constitutional framework under the Articles. For another, emphasizing the confederal nature of the new structure supported the rhetorical coup of the pro-Constitution advocates styling themselves “Federalists,” a much more anodyne and sympathetic term than “Nationalists” or “Consolidationists.” That also, conveniently for the Federalists, deprived the Constitution’s opponents of the moniker most suited to them and left them tagged with the politically unenviable designation of just being “anti” something, and anti “federalism,” at that.

Third, Hamilton helps himself generously to quotations from the Baron de Montesqueiu. The latter’s main work of interest to the Framers, The Spirit of Laws, was cited frequently to support their positions, though not always in the “spirit” in which Montesquieu intended. Unlike the Federalist, Montesquieu saw a rarified interpretation of the English constitutional monarchy as ideal.

More important than the references to Montesqueiu as such is the high level of discourse they represent. Note also Hamilton’s reference to the Lycian confederacy. Discussing political philosophy and comparative constitutional systems is a common device in the Federalist, with frequent citations to other systems, ancient and modern. While these citations and the authors’ interpretations often were editorialized to prove a point (the Federalist was persuasive advocacy, not dispassionate analysis), the casual use of them meant that the authors and the audience had a common frame of reference.

The level of discourse evidenced by the Federalist is remarkable. Granted that the writings may not have targeted  the day laborer, the audience was nevertheless a wide segment of society. After all, these papers were not just notes on an internal debate. They were disseminated to a rather literate American public well beyond the participants in the New York and Virginia ratifying conventions. There was a broad level of understanding of the classic “liberal arts” among the middle and upper classes that made such discourse possible. True, Hamilton attended King’s College (Columbia University), but would the typical graduate of Columbia today be as well-grounded in Western civilization and thought (in contrast to identity group “victims studies”) as Hamilton and his audience? Is one likely to hear such discourse in the halls of Congress or in the media today? If not, does that say anything about our fitness for republican government?

That brings up a theme to be discussed further in connection with Federalist 10, the idea of “republicanism.” Republicanism animated Americans’ self-identity. Start with the name of just the writers of the Federalist, “Publius.” The man of the “people” (not of “states” or “interests”). It comes from Publius Valerius Publicola, a legendary statesman and general of the Roman Republic’s founding. Why write under a pseudonym? There was a legal reason in the history of the English law of publications of criminal libel, but by 1787 it was just a fashion—but one carefully selected. Opponents of the Constitution, too, chose their names with care, and the same person might change names to fit the occasion. Thus, in 1793, in defending President Washington’s Neutrality Proclamation, Hamilton wrote under the pseudonym “Pacificus” (the “peaceful one”). Most of their pseudonyms, from Publius to Cato to Agricola to Brutus to Cincinnatus, were taken from Roman Republican history. The Framers—and Americans generally—were fascinated, nay, obsessed, with the Roman Republic. They saw themselves as heirs to the Roman tradition of classical republican virtue, in their civically-involved citizenry, the militia basis for political participation, the need for inculcation of shared political values, and (for some, e.g., Jefferson and Patrick Henry) the repository of civic virtue in a broad class of yeoman farmers and artisans.

But, as Hamilton shows, the Framers were also keenly aware of the fragility of many republics. Hamilton sees the means of saving the American republic through its size and through the use of a representative system. Madison picks up that theme in Federalist 10.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums.  Read more from Professor Knipprath at: .

29 Responses to “May 102010 – Federalist No9 – The Union as a Safeguard Against Domestic Faction and Insurrection, for the Indpendent Journal (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School”

  1. Susan Craig says:

    Thank you Professor Knipprath for your discussion on this paper. Like you I was struck by a portion of the Montesquieu quotation. That being; “As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies.”
    The following argument in support of the Constitution leapt out at me. “The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.” It shows me how important it was that the corporate entity known as States be treated as deserving of representation as a whole and separate from individual citizen representation.

  2. Maggie says:

    Fabulous write up and interpretation. I now have a much better understanding of this paper and the mindset within which is was composed.

    @ Susan….the same second quote leapt out at me. It showed me how important it is that the Federal Government not overstep the individual States’ rights. We are, afterall, a Confederate Republic…not a consolidation.

  3. Susan Craig says:

    This paper reinforced my belief that the 17th amendment was a serious mistake and disenfranchised the individual States! This being said a repeal of this amendment would be a good step towards correcting what has gone amiss.

  4. Kay says:

    Prof. Knipprath also helped my understanding of Hamilton’s reasoning. The Founders undertook their task of formulating the Constitution by looking back and looking forward, what worked in the past, what governments had deficiences, what could conceivably work to provide the States, as part of the whole, for “peace and liberty” as opposed to “domestic faction and insurrection.” Our Congress has no sense of the past, except perhaps FDR’s New Deal, which seems to be the best thing since sliced bread, and Congress has just expanded, and expanded, on that with the out-of-control control of the Health Care Reform Bill. I hope those arising to run for public office are educating themselves on the reasoning behind the Constitution, and applying those lessons (which are timeless) to situations facing us today.
    Every candidate should be asked, “When was the last time you read the Constitution? Are you familiar enough with it to judge every piece of legislation by its provisions?” I have already been asking this question of candidates, and unfortunately, the answers are no to nebulous.
    Now I look forward to reading Madison in the next paper and the commentary. Your posted comments enlighten my understanding of every paper with thoughts I never would have drawn from the reading.

  5. Carolyn Attaway says:

    Prof. Knipprath, I thoroughly enjoyed your explanation of Federalist Paper #9. With your write up, I was able to breakdown the paper into several main components, and concentrate on the main theme of each.

    As with Susan and Maggie, I too picked up on Hamilton’s reiteration of the difference between a Confederate Republic consisting of constituent parts and that of a Republic with consolidated states. Earlier on this web-site, while discussing amendments, I mentioned that number 17 needed to be repealed because in its current status, it diminishes the States representation in the U.S. Senate. I believe this paper strengthens the argument that the U.S. Senator should be appointed to the Senate to represent the States best interest and not the voters.

    For example, when the heath care reform bill was being debated in the Senate, many State Governors requested that their U.S. Senators vote against the bill because of the damage the cost would do to their state. Instead, many U.S. Senators were more concerned with party loyalty and re-election bids; they voted against their states best interest. Now, many States are creating legislation to ward off the damage their Senators help create.

    Another section that caught my eye was ‘The Science of Politics’. This is not the first time that I noticed the concentrated effort to stress the importance of power into distinct departments. The statement ‘the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided.’

    I find it humorous that Hamilton says that this legislative balance was not known or was imperfectly known to the ancients. If that is the case, I can’t help but wonder if we evolved 360 degrees and are now experiencing a generation that does not realize the importance of balanced powers within the Federal Government. And, if that is why we yet again find ourselves comparing our current troubles to that of Greece.

    One last thing that caught my attention, the word Framer. Until this time, I was concentrating on the word founder, but Prof. Knipprath used the word framer when describing our founding fathers. This word adds a new dimension for me when reading these documents. Now I can see these documents as a framework that is composed of many parts that are to be fitted and joined together to support our founding. A foundation is much stronger when it has a framework to support it.

  6. Richard Heck says:

    I appreciate Prof Knipprath’s words however he needs to write more in laymans terms. I had a hard time reading, understanding and following his article, I cannot imagine what my teenagers are going to say about todays blog.

  7. Margaret Wilkin says:

    Prof. Knipprath also helped my understanding of Hamilton’s reasoning. Liberty can only exist when we have a balance power. The Founders had this amazing foresight of what the future could become. They did this by their understanding of history of other governments and the great philosophers of the day.
    It strike me that we the citizens of the United State have to take a test to drive a car , to become a lawyer, get all sort of degrees, but the people that hold our liberty and that are sworn to uphold the constitution do not have to do anything to prove they understand the constitution. Just a thought .

  8. Susan Craig says:

    I’ll get the apology out of the first. Richard I truly do not mean to pick on you but your comment gives example as to why we need to take education away from the government. Where we presume that the ability to ascertain a meaning by context or dictionary has been lost or is not important.

  9. Andy Sparks says:

    I think it is important to distinguish the context in which Hamilton is writing. He is trying to persuade those that would vote against ratifying the Constitution to support it. Thus, he is emphasizing to the reader that the states will be sovereign in some capacities as defined by the Constitution. However, both he and Madison (at this time) saw the inherent weakness of the federal government compared to the states under the anemic AOC. Madison even proposed in the Convention a ‘negative’ against all state laws for the federal government, and nobody was for a more centralized government than Hamilton, as history bears out after ratification. During the writings of these essays then, one should read them understanding that at this time, all three writers, while assuaging those moderate anti-federalists concerned about the powers of their states, wanted a vastly more energetic national government.

  10. Chuck Plano, Tx says:

    Mabye Constituting America could index all of the guest bloggers blog on each Federalist Paper so they would be avaliable for future reference.

  11. Carolyn Merritt says:

    I agree with Chuck Plano on indexing all of our guest bloggers. I have not blogged in the last several days, but trust me, I’ve been studying and reading all of the blogs by the fantastic guest bloggers. Thank you Prof. Knipprath for clarifying what Hamilton was saying in Federalist #9.

  12. I have read and reread the 17th Admend.and compared it to the original arrangement,I must say I can not see an advantage to repealing the 17th.I understand there is Party pressure but I don’t see this as reason to take the vote from the people.Special interests and Party pressure is a difficulty,but in this day, where incumbents are sweating the results of the awakening people ( long long over due) I see this as perhaps the intentions , the spirit of the passage of it. Please if anyone can show more light revealing my error I am open .

  13. Howdy from Texas. I want to thank you for joining us today and I thank Professor Knippratch for his most insightful essay today!!! Thank you, Professor Knippratch.

    I am in the middle of tornados whirling through

    our ranch so I have to make this brief. I am once again amazed and inspired by the intellectual tenacity of our forefathers. It is my hope, through our foundation, that we may encourage our youth to read, read, read.

    History truly is the key to our future.

    My favorite passage of Federalist No9 is:

    The regular distribution of power into distinct

    departments; the introduction of legislative balances

    and checks; the institution of courts composed of

    judges, holding their offices during good behaviour;

    the representation of the people in the legislature, by

    deputies of their own election; these are either

    wholly new discoveries, or have made their principle

    progress towards perfection in modern times

    “..or have made their principle progress towards perfection in modern times.”

    This line captures my attention. Through out history many empires and republics had been formed but became lost in the mire of war, conquests or tyranny, as mentioned in earlier essays. Now, according to Alexander Hamilton, The United States Constitution, by analyzing the annals of history and recalculating and reinventing the basis of former Republics, offered “progress towards perfection in modern times.”

    Our forefathers, guided by the hand of Divine Providence, etched onto the new sphere of political science a masterpiece, a stroke of genius that would be embraced and cherished by Americans and emulated throughout the world – even today.

    How sad it is that we Americans have such little time to devote to the revolutionary and relevant thesis of our country; that we have forgotten to cherish such a gem. We, as a modern society, have forsaken our great founding principles, as a kitten is forsaken on the side of the road.

    It is Cathy’s and my goal to reach out to the schools across America and by this September 17th have 20 minute DVDs (or downloads) available of the winners of our contest – hip, cool and contemporary – discussing the United States Constitution in all her glory.

    Then when a 7th grader gets in your car, he or she won’t say, “What’s the Constitution?”

    And we, as parents, as adults, as citizens, through our “90 in 90 = 180,” will be re-stimulated, re-educated and fortified to take on whoever wants to challenge, defy or ridicule the validity of the United States Constitution. We will be ready to teach our children, our families, or our friends about the “perfection of modern times.”

    God Bless,

    Janine Turner

    May 102010

  14. Thank you Professor Knipprath for yet another enlightening essay!

    I would like to take a moment to recommend a book that I have found useful, and that you all may too:

    How to Read the Federalist Papers, by Anthony A. Peacock. This book may be purchased at the Heritage Foundation bookstore: It is only about 100 pages, and full of great information!

    In Federalist 1, A General Introduction, Hamilton asserted that a wrong decision on this “important question” of whether or not to ratify the United States Constitution, would “deserve to be considered as the general misfortune of mankind.”

    Federalist 9 reminds us of the grand experiment that America was and is. History was littered with failed Republics. Another failure could forever doom future attempts at governing within the framework of a Republic. Success, however, could inspire similar governments around the world, liberating mankind. The stakes were high, and the founders recognized their place in history.

    This was America’s chance to prove that a Republican form of government could work – that political science had progressed, and refinements had been made including, as Hamilton lists:

    “The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election,” and ”the ENLARGEMENT of the ORBIT within which such systems are to revolve.”

    I love how Hamilton takes on the arguments of his opposition, and further quotes, paraphrases, and explores Montesquieu to make his points, ending with an explanation of the importance of the State governments within the framework of the proposed Constitution, and their “exclusive and very important portions of sovereign power.”

    Thomas Jefferson called the Federalist, “The best commentary on the principles of government, which ever was written.” Federalist 9 certainly lives up to this high praise.

    Looking forward to Federalist 10!

    Cathy Gillespie

  15. Roger Jett says:

    Lynne Newcomer. Without the 17th Admendment there would not have been the “Miracle in Massachusetts” back in January. It would not have truly been the people of Massachusetts’ seat to fill, but would have belonged to the party machine. With the passage of this admendment we drew closer to Lincoln’s desciption of a “government of, for and by the people.”

  16. Susan Craig says:

    Roger Jett, while the “miracle” would have been a little more unlikely it might not have been necessary. The Senators were never to be direct representatives of the individual citizens. They were to represent the people as a corporate group overall as a State. They were sort of like in a large company where the union is the like the House of representatives. A Senator would be like the different Department heads representing the interests of their respective Departments (each department management selects the person to represent the needs and wants specific to the department as a whole). No longer do the specific States have a representative the looks to the overall of the State specifically because they no longer are selected at the State level while it is warm and fuzzy to have direct say in essence you did have a say by the selection of State Senators and Representatives. Also, if Massachusetts had not changed their law to preempt the possibility of a Republican Governor appointing the replacement for John Kerry should he have won the Presidency the ‘miracle’ would not have happened at all.

  17. Carolyn Attaway says:

    As excited as I was for the election of Scott Brown to the U.S. Senate; it was more for the ability to stop the majority’s agenda than his ideology. I believe this election came about because of over 100 years of misuse of the Senate Body. With the ratification of the 17th Amendment, party loyalty usurped State representation in the U.S. Senate. Senators could be elected over and over again by a majority of voters, thus dominating the seat and the ideals of the voters that elected him.

    The voters are represented in the House of Representatives, if they control the Senate as well, I believe this distorts the voters power, and those in the minority are overruled in every stance. If the Senate only reported directly to the State, the bullying factor from the party and the Administration would be diminished, thus giving the State a voice in the Federal gov’t. The State as a whole is a greater entity and has more strength in dealing with legislation that could hurt it’s citizens than the individual voter.

    I believe a lot of the ills States currently have to deal with are a direct result of Senators putting their party loyalty ahead of the State’s best interest. For example, many Governors are telling their Senators to kill Cap and Trade, but who are their Senators really listening to?

  18. @Roger Jett, I agree with you.I see more opportunity for corruption with appointments.The people are smart enough to bear the consequences,because we have the vote .Thanks for your input.

  19. Chuck Plano, Tx says:

    In regards to the 17th amendment if we returned with the repeal of the 17th the states would regain a large degree of control of the Federal System. It is much easier to change and or control the State Legislatures than it is the Federal Legislature. No longer would there be “money” involved in Senate elections and the beholding of Senators to special interest groups because of their campain contributions. Currently Senators spend on average over $10,000,000.00 dollars to get elected, where do they raise that money? Senators would have to answer to their state legislature for their votes such as the receint health care bill that will ultimately cost the states billions.

  20. Susan Craig says:

    Lynne, yes the opportunity is there. However, now the corruption is not so confined to the State Government level. Prior to the 17th amendment Senators were not vulnerable to the circumstances that led to and have been exacerbated by Campaign Finance Reform! If you didn’t like the Senators your state’s Governor, State Senators and State Representatives selected to represent the State as a whole; they are easier to reach, influence and/or change.

  21. Paul S. Gillespie says:

    Regarding 17th Amend., Lynn and Roger: Party loyalty as an encumbrance to the fidelity of a Senator to his State is a reality. Couple that with the unmitigated influence of campaign contributions, the majority of which does not originated within that State, and the result is a Senator with too many obligations to effectively represent this State, much less the people electing him.

  22. Roger Jett says:

    Valid points have been presented in opposition to the 17th Admendment and I concede that in theory state governments suffered a level of disenfranchisement as a result of it’s ratification. Framers of the Constitution recognized that Article 1, section 3 in granting constituency to the state legislatures instead of the populace in regards to the Senate, greatly increased the likelihood that those same state legislatures would ratify it. Beyond that there were substantial differences of opinion on constituency issues that drifted to the extreme in both directions.
    I believe that neither Article 1, section 3, nor the 17th Admendment perfectly address the numerous difficulties that we have faced with regard to the selection of Senators. Historically, the “realities of human nature” afflicted those serving in state legislatures during the first 125 years when they were the constituents, since factionalism does not discriminate and all are vulnerable. In the beginning, not all states elected their senators the same way. Intimidation and bribery occured at times. I saw noted that between 1866 and 1906 that nine bribery cases were brought before the Senate. On numerous occasions contentions arose that prevented state legislatures from electing new senators. At one point Delaware went four years without a seated U.S. Senator.
    As the point was well made in posts by others, even under the 17th Admendment there are times when vacancies are temporarily filled by state govenors. I ask that each of us compare and contrast the appointment of Roland Burris to the Senate seat for Illinois versus, the special election of Scott Brown to the Massachusetts vacancy. So far, I’ve not seen what I considered to be “unmitigated influence” steming from outside conservative campaign contributors to Senator Brown. He seems fairly focused on listening to and serving his Massachusetts constituency…. the people.

  23. Susan Craig says:

    The purpose of the bicameral legislature was that in one house representation would be by population (3 guesses and the last 2 and 3/4 don’t count) and the other would be where all constituent states would be equal (same offer) that way New York could not bully Wyoming on issues of sectional importance.

  24. Tina Bogani says:

    This is my first blog. FP #9 and #10 are my favorites. I always find myself reading the papers in the context of current events. One of the quotes that struck me was, “…we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord and the miserable objects of universal pity or contempt.” For me, this sounds like a description of “diversity” and how one group should be treated “more fairly” than another (ie, “empathy in judging”).

    I’m sorry to say, even after reading the arguments regarding the representation of the States interests in the Senate, how would it be different than what we have now? Wouldn’t the representatives of the States appointing the Senators be appointed by the People of the State in the first place? Sorry to be dense – can someone explain one more time how it should have worked and how it works now?…

  25. Susan Craig says:

    I’ll try and take a shot at it. Think of the nation as say a large conglomerate company. where there are scads of workers in many different subsidiaries. Say one subsidiary has mainly teamsters, another iron workers, another service, they elect someone to represent them and their concerns to the conglomerate board this would be like the house of representatives. Previously the Senate would have be made up of people who were selected out of the various subsidiaries to represent the overall concerns of the subsidiary say steel framing another subsidiary would say be agricultural services these would be selected by management and workers combined with final say being who the head judges to be best able to represent the subsidiary as a whole. As the Senators are now selected it is a beauty contest voted on by every one and concern no longer is to the corporate body but to the various constituencies.

  26. Roger Jett says:

    Tina Bogani. I may not be of much help in answering your question, but please let me try. It is a very good and appropriate question. Originally, under the Constitution (Article 1, section 3) U.S. Senators were elected by the state legislatures of their respective states. Under that arrangement the state legislature was the Senator’s constituent (the people he answered to and was responsible to represent the best interest of). By the early 1900′s there was sufficient disatisfaction within the nation to change that original arrangement and the legislative branch of the federal government proposed to the states the 17th Admendment for ratification. There were 37 states out of what was then 48 states in total (in 1913) that ratified this admendment into law. Under this new arrangement Senators were now to be elected directly by individual voters within each state and the individual citizens now were the Senator’s new constituency. That’s the quick and easy answer and I think it’s factual . Which arrangement is best involves a number of competing opinions as I think you’ve seen already in the ongoing debate. It sounds wishy washy of me, but I really think there truly are some pretty good arguments on each side.

  27. Kellie says:

    @Roger Jett: Thank you for your explanation, because the 17th Amendment and the story behind it was confusing me. I wonder, could this amendment contribute to the “lifetime” US senators we now have holding office today? Would it have been different if the senators were determined by the state legislatures, which are more diverse. My guess is that the terms of these senators would be shorter and we’d have more of a voice in government.

  28. Roger Jett says:

    Kellie, I’m not sure I would agree that state legislatures are more diverse than the general population. Like it or not our political system is now and has pretty much always been a two party system at both the national level and the state level. Amongst the people there is enormous diversity, but within each party I believe that many of the minorities go pretty much unrepresented at the state legislature level. States have a tendency to lean to one party, even when they have a substantial number of voters who profess to be unafilliated and independent minded. The explanation of why we have so many “lifetime U.S. Senators” probably requires a better understanding of human nature than I currently have. My quess would be that Senators as a rule have been successful at convincing us that we have a voice with them (not been true lately though… has it?).

  29. Are you kidding me? I’m not certain I can put myself behind what you have said. But I will surely be back to find out more soon.


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