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Thread: The Constitution Failed

  1. #1

    The Constitution Failed

    By Ryan McMaken
    Mises.org
    July 7, 2020

    Contrary to a certain nostalgic nationalist myth that still endures, the US Constitution as first conceived was never intended to limit government power. The primary purpose of the Convention of 1787 was to increase federal power, as the older constitution of 1776 (i.e., the Articles of Confederation) was regarded by centralizers as being too “weak.” The older constitution was built on a consensus model, and required acquiescence from a supermajority of member states to do much. The overwhelming preponderance of government power lay with the states themselves, which were in their own right too weak to demand much from their citizens.

    Nonetheless, this loose union of states had functioned well enough. The states, working in voluntary union, had fought off the most powerful empire of the eighteenth century during the Revolution. The Massachusetts state militia had put down Shay’s Rebellion without any federal help. Americans, for the most part, were more free and better fed than the populations of Europe, the wealthiest region of the world. Thanks to the liberal ideology spread by the Revolution, slavery was in decline nationwide. Indentured servitude was on the way out. The restrictive feudalism of old was disappearing.

    Yet, the wealthy elite, like Hamilton, Washington, and Madison (in his counterrevolutionary phase), wanted something else. They wanted a federal system that could force payment of federal taxes. They wanted a bigger navy. They wanted a federal army that could march into the interior and threaten farmers with destruction, as Washington did during the Whiskey Rebellion. In short, they wanted a Constitution that would centralize power, and grow it.

    It was the opponents of these “Federalists” who demanded the only part of the constitution that ever actually limited power. The Anti-Federalists demanded amendments that would protect local communities from federal power. They eventually got their bill of rights, but of course the federal government has always sought to interpret the bill’s amendments in a way that expands federal power. Or, the federal government just ignores it altogether.

    But let’s say for the sake or argument that the Bill of Rights and the Constitution are one in the same and that the purpose of the Constitution is to limit the power of the state. By this standard, it is clear that the Constitution has failed.

    For evidence we need only look around us. Virtually nowhere do we find that the Constitution places any meaningful obstacles in the way of federal power.

    Obamacare, for instance, requires that Americans purchase health insurance or be punished with an additional tax. Where does the Constitution provide the federal government with the power to coerce people into purchasing certain products? Nowhere. Yet the Supreme Court has declared this constitutional.

    The PATRIOT Act, of course, enables the federal government to freely spy on countless Americans with no probable cause. The accused are not permitted to defend themselves in open court, for reasons of “national security.” The privacy of Americans has been effectively abolished. The US Constitution does not prevent this in any way.

    And then there is the federal war on drugs. Once upon a time, it was accepted as common knowledge that the federal government did not have the power to regulate intoxicating substances. This is why it was necessary to pass a new constitutional amendment allowing for alcohol prohibition. Then that amendment was repealed. Later, federal judges and politicians decided that the meaning of the Constitution had mysteriously changed to now allow for the federal government to dictate what we all could smoke or eat after all.

    The same was once true of immigration policy. Until the 1880s, few even tried to assert that the federal government could close borders or round people up and deport them. It was accepted that the Constitution made this a state and local matter. And then the feds changed their mind, and what was one minute unconstitutional was constitutional the next. The same thing happened with federal legislation on abortion.
    In many cases, of course, these provisions that are apparently in violation of the Bill of Rights and Article I were justified on the grounds that they are “necessary.”

    And “necessity” overrules any concern for constitutionality virtually every time. It was “necessary” that federal spy agencies be able to monitor all our communications. Because of terrorism, you see. It was “necessary” to put Japanese Americans in “internment” camps. That, of course, was “constitutional” also. Only decades later, when it became politically expedient to do so, did the Supreme Court reverse itself and decide that concentration camps are unconstitutional.

    But the point has been made. If a future “emergency” requires that some other group of people—say, people who refuse “stay-at-home” orders or federally mandated vaccination—be rounded up and incarcerated en masse, do not doubt this will be regarded as perfectly constitutional. If it is decided to empower federal agents to confiscate privately held guns, there is no doubt a “public health crisis” or “emergency” will be cited to ensure that this is deemed constitutional, too.

    At this point, who would be naïve enough to think the federal government would limit itself from any “necessary” act just because it is unconstitutional?

    Advocates for private gun ownership can chirp about how “the Second Amendment” protects them. But if a critical mass of politicians, pundits, and voters decides the Second Amendment is null and void, the Constitution will be interpreted as “necessity” dictates.

    We’re likely to see something similar with the First Amendment. It appears to be only a matter of time until an alliance of Washington politicians and Supreme Court justices determine that speech opposing, say, gay marriage is “hate speech” and punishable by fines and incarceration.

    And then, of course, there are the countless federal laws that control every aspect of everyday life from what one can buy or sell to whom one can hire and with whom one may do business.

    Are these powers listed under the “enumerated” powers of the Constitution? Do they violate the Bill of Rights? Virtually no one cares. Which means it doesn’t matter. It’s constitutional if the politicians (which, of course, includes the lawyers in robes we call “judges”) say so.

    So, when it comes to the Constitution’s ability to restrain government power, the conclusion is obvious: that scrap of parchment is an obvious failure, and it is apparent that the text of the document is insufficient to prevent interpretations of the text which empower the federal government rather than limit it. It is also apparent that the public and their representatives are uninterested in limiting federal power. I claim no novelty in pointing this out, of course. More astute observers recognized the impotence and failure of the US Constitution decades ago. As Murray Rothbard wrote in 1961:

    From any libertarian, or even conservative, point of view, it has failed and failed abysmally; for let us never forget that every one of the despotic incursions on man’s rights in this century, before, during and after the New Deal, have received the official stamp of Constitutional blessing.

    And before Rothbard, there was Lysander Spooner, who noted:

    the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize….But whether the Constitution really be one thing, or another, this much is certain—that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.

    In other words, appealing to the text of the Constitution to claim illegitimacy for the latest government power grab is pointless and irrelevant to the task of actually limiting the power of the state. The de facto status of the Constitution is that it positively authorizes every new “despotic incursion” the federal government wishes to initiate.

    In turn, everything the federal government wishes to do is ultimately constitutional. So long as the public tolerates it.

    And it’s this final piece of information that is the key to the puzzle. So long as the public tolerates it, it will be done. Words on parchment are useless in opposing this. The beliefs of the people who wrote the Bill of Rights—that is, a group of laissez-faire liberals from the late eighteenth century—mean nothing if the public doesn’t agree with them. And virtually no American today agrees with the Anti-Federalists of old that the federal government must be kept limited, weakened, and confined to a small number of tasks. If no one agrees with the philosophy behind the Bill of Rights, few will care if its provisions are violated.

    Yet, this philosophy—a philosophy we call liberalism or “classical” liberalism—was once the most popular in Europe and in the United States. Over time, it ceded ground to the socialists, the mercantilists, protectionists, and other advocates of government privilege for favored groups. The only way forward at this point to rebuild liberalism’s popularity from the ground up. This requires scholarship, activism, teaching, writing, debate—and time. Demanding obedience to a long-disregarded document does nothing. For far too long the party of laissez-faire and liberalism thought some documents from two hundred years ago would protect them from a government run amok. They were wrong.


    https://www.lewrockwell.com/2020/07/...tution-failed/
    ____________

    An Agorist Primer ~ Samuel Edward Konkin III (free PDF download)

    The End of All Evil ~ Jeremy Locke (free PDF download)



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  3. #2
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    Great read.

  4. #3
    I think what failed was the government and the people who elected them. Held strictly to the Constitution, we would be a strong, powerful, well educated nation.
    #NashvilleStrong

    “I’m a doctor. That’s a baby.”~~~Dr. Manny Sethi

  5. #4
    It's the flaw in democracy (yeah I know it's supposed to be a republic). The majority tends to vote to steal from the minority. Over time government keeps getting bigger because that's where the votes are. Nothing is going to change until the dollar collapses. At that point there's a chance we may do the right thing because things will be so bad. As long as we can print and borrow we'll keep voting for bigger government.

  6. #5
    The Anti Federalists did believe that the Constitution would be used to increase the scope of the federal government.
    "Perhaps one of the most important accomplishments of my administration is minding my own business."

    Calvin Coolidge

  7. #6
    DamianTV made a great point on another thread related to this...

    Quote Originally Posted by DamianTV View Post
    All paper doctrines will fail if no one is willing to enforce them.

    Thus, by the same token, we could easily say that the Bible had failed just as hard because, although many people know the material contained in the Bible (and its various flavors), the words themselves do not prevent those very same people from committing those exact heinous atrocities.

    That goes for every system, every book, every law, every doctrine, every rule, statute, contract, and even simple verbal agreements. They are all meaningless if they are not observed. Not only does our Government flat out refuse to observe our Constitution, they do everything in their power to subvert its meaning.
    ''There were four million people in the American Colonies and we had Jefferson and Franklin. Now we have over 300 million and the two top guys are Trump and Biden. What can you draw from this? Darwin was wrong.'' ~ Mort Sahl

  8. #7
    Quote Originally Posted by Anti Globalist View Post
    The Anti Federalists did believe that the Constitution would be used to increase the scope of the federal government.
    Exactly.

    The Constitution was a Hamiltonian coupe to make a strong central government. They originally wanted it set up just like the English monarchy- a president & congress ruled until death took them.
    There is no spoon.

  9. #8
    Whoever enforces the law is necessarily above it, which is why the state cannot itself be bound by law.

    Constitutions end up being books of suggestions, to be followed or not at the pleasure of whoever controls the state.

    The US Constitution expresses many good ideas, but it isn't a useful means for seeing those ideas realized.



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  11. #9
    Quote Originally Posted by Marenco View Post
    DamianTV made a great point on another thread related to this...
    Yep. A document is a piece of paper. A limited and just government is entirely dependent upon the leaders and people, for the most part, to live this ideal.
    "Foreign aid is taking money from the poor people of a rich country, and giving it to the rich people of a poor country." - Ron Paul
    "Beware the Military-Industrial-Financial-Pharma-Corporate-Internet-Media-Government Complex." - B4L update of General Dwight D. Eisenhower
    "Debt is the drug, Wall St. Banksters are the dealers, and politicians are the addicts." - B4L
    "Totally free immigration? I've never taken that position. I believe in national sovereignty." - Ron Paul

    Proponent of real science.
    The views and opinions expressed here are solely my own, and do not represent this forum or any other entities or persons.

  12. #10
    Govt and the rich elites consider themselves to be ABOVE THE LAW.

    http://www.ronpaulforums.com/showthr...=1#post5141209
    There is NO Rule of Law... when the crime that is charged, not based upon what law was broken, but by who committed it.

    -Hollywood

    (Give +Rep to Hollywood if you want to rep for the BOLD text)

    And that goes for EVERYONE. MSM thinks it is ABOVE THE LAW when they are the ones inciting violence. Schools promote Indoctrination. BLM can conduct as much violence as they want. Illegal Immigrants can demand free access to our resources. Big Pharma can not be sued for dangerous vaccines. Banks can not be sued for taking money from your savings acct and losing it.

    THERE IS NO RULE OF LAW IN THIS COUNTRY.

    They are cherry picking their laws, not based on the law itself, but based on who committed it. And they use their cherry picked laws to go after Conservatives, Constitutional Moderates, Libertarians, Republicans, and pretty much anyone who is not endorsed by the Elite. The END will be the absolute downfall of this country into a shadow of its own footprint in history, soon to be swept away as the most abysmal failure of freedom never having worked, according to the real owners of the world.

    The Constitution itself did not fail. The only failure is we did not prosecute those who violated the Constitution. That is a failure of people, not our form of government.
    1776 > 1984

    The FAILURE of the United States Government to operate and maintain an
    Honest Money System , which frees the ordinary man from the clutches of the money manipulators, is the single largest contributing factor to the World's current Economic Crisis.

    The Elimination of Privacy is the Architecture of Genocide

    Belief, Money, and Violence are the three ways all people are controlled

    Quote Originally Posted by Zippyjuan View Post
    Our central bank is not privately owned.

  13. #11
    Everything fails in an imperfect world, but whether you like the Constitution or not, the 2nd Amendment is the only reason why we aren't disarmed like everyone else. In an imperfect world, it has served us much better than any of the other attempts at utopia. It is the reason why the marxists attack it so vociferously.

    Ironically, those who attack it the most are the first to appeal to it in times of need.
    ...

  14. #12
    Quote Originally Posted by r3volution 3.0 View Post
    Whoever enforces the law is necessarily above it, which is why the state cannot itself be bound by law.

    Constitutions end up being books of suggestions, to be followed or not at the pleasure of whoever controls the state.

    The US Constitution expresses many good ideas, but it isn't a useful means for seeing those ideas realized.
    That has to be the most retarded $#@! I have ever read on the internet.
    "The Patriarch"

  15. #13
    Quote Originally Posted by Origanalist View Post
    That has to be the most retarded $#@! I have ever read on the internet.
    I must be wrong..

    It isn't the case that the US government ignores the constitution.

    There is a magic constitution fairy which forces them to abide by it.

    ...which is why we presently enjoy constitutional government.

  16. #14
    Quote Originally Posted by RJB View Post
    Everything fails in an imperfect world, but whether you like the Constitution or not, the 2nd Amendment is the only reason why we aren't disarmed like everyone else. In an imperfect world, it has served us much better than any of the other attempts at utopia. It is the reason why the marxists attack it so vociferously.

    Ironically, those who attack it the most are the first to appeal to it in times of need.
    The major failing of the Constitution is the lack of penalties for failure to follow it.
    "The Patriarch"

  17. #15
    Quote Originally Posted by r3volution 3.0 View Post
    I must be wrong..

    It isn't the case that the US government ignores the constitution.

    There is a magic constitution fairy which forces them to abide by it.
    Please stay within your posted text that I responded to.
    "The Patriarch"

  18. #16
    Quote Originally Posted by Origanalist View Post
    Please stay within your posted text that I responded to.
    ...pretty sure I did.

    If you have a specific objection, other than calling my comment "retarded $#@!," I just might be able to give a more specific answer.



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  20. #17
    Quote Originally Posted by Origanalist View Post
    The major failing of the Constitution is the lack of penalties for failure to follow it.
    To be enforced by whom?

    The SCOTUS who ignore the constitution?

    The Congress who ignore the constitution?

    The POTUS who ignores the constitution?

    Perhaps the voters who ignore the constitution?


  21. #18
    Quote Originally Posted by r3volution 3.0 View Post
    ...pretty sure I did.

    If you have a specific objection, other than calling my comment "retarded $#@!," I just might be able to give a more specific answer.
    Whoever enforces the law is necessarily above it, which is why the state cannot itself be bound by law

    Constitutions end up being books of suggestions, to be followed or not at the pleasure of whoever controls the state.

    The US Constitution expresses many good ideas, but it isn't a useful means for seeing those ideas realized.
    The bolded part is what I was referring to.
    "The Patriarch"

  22. #19
    Quote Originally Posted by r3volution 3.0 View Post
    To be enforced by whom?

    The SCOTUS who ignore the constitution?

    The Congress who ignore the constitution?

    The POTUS who ignores the constitution?

    Perhaps the voters who ignore the constitution?

    Yes.
    "The Patriarch"

  23. #20
    Quote Originally Posted by Origanalist View Post
    The bolded part is what I was referring to.
    Quote Originally Posted by Origanalist View Post
    Yes.
    Okay

    You object to my claim that the state can't be bound by law because the state itself enforces the law.

    So, I ask you, who enforces the constitutional law which purports to bind the state?

    If the Constitution says, for instance, that the state can't fund a program called Medicaid, who forces them to not do that?

  24. #21
    Quote Originally Posted by r3volution 3.0 View Post
    Okay

    You object to my claim that the state can't be bound by law because the state itself enforces the law.

    So, I ask you, who enforces the constitutional law which purports to bind the state?

    If the Constitution says, for instance, that the state can't fund a program called Medicaid, who forces them to not do that?
    That is the major flaw in the constitution. It wasn't written clearly enough and penalties added for not following the clearly written limitations on government. Yes, I'm aware it was a expansion of government powers.
    "The Patriarch"

  25. #22
    Quote Originally Posted by Origanalist View Post
    That is the major flaw in the constitution. It wasn't written clearly enough and penalties added for not following the clearly written limitations on government. Yes, I'm aware it was a expansion of government powers.
    It's not a question of the clarity of the writing or of penalties.

    Write it more clearly, including automatic crucifixion for anyone who violates it, and pin it on your wall.

    Why would anyone follow it?

    Why would this be any different than any other scrap of paper in anyone's drawer anywhere in the world?

    The problem, as I said above, is that the people entrusted with enforcing this rule written on paper are the same people which it's meant to bind.

    "Hey R3v, let's play cards; if anyone cheats, you and you alone can punish them."

    ...and then I'm one of the players.

    The result is obvious; I'm not going to punish myself, am I?

  26. #23
    Quote Originally Posted by r3volution 3.0 View Post
    It's not a question of the clarity of the writing or of penalties.

    Write it more clearly, including automatic crucifixion for anyone who violates it, and pin it on your wall.

    Why would anyone follow it?

    Why would this be any different than any other scrap of paper in anyone's drawer anywhere in the world?

    The problem, as I said above, is that the people entrusted with enforcing this rule written on paper are the same people which it's meant to bind.

    "Hey R3v, let's play cards; if anyone cheats, you and you alone can punish them."

    ...and then I'm one of the players.

    The result is obvious; I'm not going to punish myself, am I?
    We will never know if what you claim is true, will we? Because none of the above was done.
    "The Patriarch"

  27. #24
    Quote Originally Posted by Origanalist View Post
    We will never know if what you claim is true, will we? Because none of the above was done.
    Oh, but it was done; we're living this experiment.

    The whole political theory of the enlightenment was absurd: well intended, but absurd and hopelessly naive.

    That describes the Founders, their whole generation: great, laudable, and utterly naive idealists.

    ...who actually thought that words on paper would magically restrain state power.

    ...which almost sounds like something from the dark ages, actually: sprinkle some Saint water on the parchment and we're all set.

    If the US Constitution is worth anything these days, it is as a guide to the principles defining what the state *ought* to do (and not do).

    But it is most definitely not "the law" in the sense that the state *must* do or not do these things.

    I might as well say that Human Action is the law (oh, if only it were) and politicians had to act in accordance with it.



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  29. #25
    Quote Originally Posted by r3volution 3.0 View Post
    Oh, but it was done; we're living this experiment.

    The whole political theory of the enlightenment was absurd: well intended, but absurd and hopelessly naive.

    That describes the Founders, their whole generation: great, laudable, and utterly naive idealists.

    ...who actually thought that words on paper would magically restrain state power.

    ...which almost sounds like something from the dark ages, actually: sprinkle some Saint water on the parchment and we're all set.

    If the US Constitution is worth anything these days, it is as a guide to the principles defining what the state *ought* to do (and not do).

    But it is most definitely not "the law" in the sense that the state *must* do or not do these things.

    I might as well say that Human Action is the law (oh, if only it were) and politicians had to act in accordance with it.
    No. You stepped right around my original point. It wasn't worded clearly enough and there were no penalties for ignoring original intent. Almost certainly intentionally.
    "The Patriarch"

  30. #26
    Quote Originally Posted by DamianTV View Post
    Govt and the rich elites consider themselves to be ABOVE THE LAW.

    http://www.ronpaulforums.com/showthr...=1#post5141209
    There is NO Rule of Law... when the crime that is charged, not based upon what law was broken, but by who committed it.

    -Hollywood

    (Give +Rep to Hollywood if you want to rep for the BOLD text)

    And that goes for EVERYONE. MSM thinks it is ABOVE THE LAW when they are the ones inciting violence. Schools promote Indoctrination. BLM can conduct as much violence as they want. Illegal Immigrants can demand free access to our resources. Big Pharma can not be sued for dangerous vaccines. Banks can not be sued for taking money from your savings acct and losing it.

    THERE IS NO RULE OF LAW IN THIS COUNTRY.

    They are cherry picking their laws, not based on the law itself, but based on who committed it. And they use their cherry picked laws to go after Conservatives, Constitutional Moderates, Libertarians, Republicans, and pretty much anyone who is not endorsed by the Elite. The END will be the absolute downfall of this country into a shadow of its own footprint in history, soon to be swept away as the most abysmal failure of freedom never having worked, according to the real owners of the world.

    The Constitution itself did not fail. The only failure is we did not prosecute those who violated the Constitution. That is a failure of people, not our form of government.
    Hollywood. Miss that guy...

    And in summary, "all animals are equal, but some animals are more equal."
    "Foreign aid is taking money from the poor people of a rich country, and giving it to the rich people of a poor country." - Ron Paul
    "Beware the Military-Industrial-Financial-Pharma-Corporate-Internet-Media-Government Complex." - B4L update of General Dwight D. Eisenhower
    "Debt is the drug, Wall St. Banksters are the dealers, and politicians are the addicts." - B4L
    "Totally free immigration? I've never taken that position. I believe in national sovereignty." - Ron Paul

    Proponent of real science.
    The views and opinions expressed here are solely my own, and do not represent this forum or any other entities or persons.

  31. #27
    Quote Originally Posted by Origanalist View Post
    No. You stepped right around my original point. It wasn't worded clearly enough and there were no penalties for ignoring original intent. Almost certainly intentionally.
    You're stepping around my original point (some Originalist); who enforces these penalties?

  32. #28
    Quote Originally Posted by r3volution 3.0 View Post
    You're stepping around my original point (some Originalist); who enforces these penalties?
    Originally, I think we were supposed to be able to enforce penalties against those in power by depriving them of money.

    This no longer works. Since the inception of the Federal Reserve Bank, money (really currency) comes from the Fed and not the taxpayers themselves. The existence of the Fed had prevented the natural system of checks and balances. They put laws in place that cut our businesses, then they get no tax revenue, so it would be like shooting themselves in their own foot. That is how it was supposed to work. Non violent protest. We are not generating enough business to pay taxes, they dont get paid either. So it was supposed to be symbiotic.

    As it stands, when we pay Income Tax, it goes directly to the Federal Reserve IRS to pay on the debt, and not to the Govt itself. Govt gets its money by borrowing from the Federal Reserve making the Fed and the Crony Capitalists the people our elected leaders answer to, not us. If every single business in the US, including every mom and pop shop to Amazon went completely belly up, the politicians would STILL get their paychecks and continue to sing about how "everything is awesome".

    I think this is the reason we continue to see Wall Street rallies and Main Street spirals the drain.

    The people have been deprived if their power to hold our leaders accountable without violence leaving us with only one option and it aint gonna be pretty.
    1776 > 1984

    The FAILURE of the United States Government to operate and maintain an
    Honest Money System , which frees the ordinary man from the clutches of the money manipulators, is the single largest contributing factor to the World's current Economic Crisis.

    The Elimination of Privacy is the Architecture of Genocide

    Belief, Money, and Violence are the three ways all people are controlled

    Quote Originally Posted by Zippyjuan View Post
    Our central bank is not privately owned.

  33. #29
    It would be easy to return to original constitutional government if everyone simply renounced US Citizen status and reverted to state citizenship. It is the US Citizen legal status (a legal "contract" between the federal corporation and the individual) that gives jurisdiction to abridge the original BoR.

    The state and national constitutions DO STILL EXIST as the law of the land. The problem is that everyone has (mostly unknowingly) given their rights up in exchange for contractual privileges, which really don't carry many privileges, just liabilities.
    "Let it not be said that we did nothing."-Ron Paul

    "We have set them on the hobby-horse of an idea about the absorption of individuality by the symbolic unit of COLLECTIVISM. They have never yet and they never will have the sense to reflect that this hobby-horse is a manifest violation of the most important law of nature, which has established from the very creation of the world one unit unlike another and precisely for the purpose of instituting individuality."- A Quote From Some Old Book

  34. #30
    After now clearly getting a look at what the ignoranti plan on replacing the constitution with, I'm prepared to defend it and the bill of rights with everything I can.
    Another mark of a tyrant is that he likes foreigners better than citizens, and lives with them and invites them to his table; for the one are enemies, but the Others enter into no rivalry with him. - Aristotle's Politics Book 5 Part 11

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