Publius-Huldah's Blog

Understanding the Constitution

Nullification: The Original Right of Self-Defense

By Publius Huldah

What did our Framers really say we must do when the federal government usurps power?

They never said, “When the federal government ignores the Constitution, amend the Constitution.

They never said, “File a lawsuit and let federal judges decide.”

Instead, they advised two manly remedies. We’ll look at one of them – nullification – in this paper. 1

First, let’s look at the Constitution we have.

Our Federal Government has Enumerated Powers Only

 With our federal Constitution, we created a federal government. It is:

  • A federation of sovereign States united under a national government ONLY for those limited purposes itemized in the Constitution;
  • With all other powers reserved by the States or the People.

We listed every power we delegated to the federal government: Most of the powers delegated over the Country at large are listed at Article I, §8, clauses 1-16.

All our Constitution authorizes the federal government to do over the Country at large falls into four categories:

  • Military defense, international commerce & relations;
  • Immigration & naturalization;
  • Domestically, create a uniform commercial system: weights & measures, patents & copyrights, money based on gold & silver, bankruptcy laws, mail delivery & some road building; and
  • With some of the amendments, secure certain civil rights.

That’s basically it! All other powers are reserved by the States or the People. Depending on how you count, Congress only has 18-21 powers over the Country at Large. 2

It is only with respect to the enumerated powers listed in the Constitution that the federal government has lawful authority.

  • If it’s on the list, Congress may make laws about it.
  • But if it’s NOT on the list, Congress usurps power & acts unlawfully when it interferes.

Is “education” on the list of delegated powers? Raising children? Health Care? Environmental regulation? Is most of what they do on the list? Since these are not delegated powers listed in our Constitution, the federal government usurps power and acts unlawfully when it meddles.

So then, what do we do when the federal government usurps powers not on the list?

 Don’t Submit to Unconstitutional Laws – Nullify Them! 3

Our Framers said the federal government is our “creature” and must obey our Will as enshrined in our Constitution. And when it doesn’t, we must defend the Constitution by invoking our natural right of self-defense:

Alexander Hamilton said in Federalist No. 28 (last 5 paras): [I’m condensing]

“If the representatives of the people betray their constituents, there is no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted … [by] … State governments [which] will … afford complete security against invasions of the public liberty by the national authority…” [emphasis mine]

Hamilton says in Federalist No. 33 (5th para):

“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.” [emphasis mine]

Thomas Jefferson said in his draft of The Kentucky Resolutions of 1798, 8th Resolution:

“…where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact … to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them…” [emphasis mine]

James Madison commented on this in his Notes on Nullification (1834):

“… the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression…” [emphasis mine]

Note that Hamilton, Jefferson, and Madison said nullification is a natural right – it is NOT a “constitutional right”. Rights don’t come from the Constitution – they come from God. 4

HERE is Madison’s “Report of 1799-1800 on the Virginia Resolutions”. He said under his discussion of the 3rd Resolution [I’m condensing]:

The States, in their sovereign capacity, are the parties to the constitutional compact; and are thus the final authority on whether the federal government has violated the Constitution. There can be no tribunal above the authority of the States to decide whether the compact made by them has been violated by the federal government. (p 192)

That if, when the federal government usurps power, the States don’t stop the usurpation, and thereby preserve the Constitution; there would be no relief from usurped power. This would subvert the Rights of the People as well as betray the fundamental principle of our Founding. (p195)

That the Judicial Branch is as likely to usurp as are the other two Branches. Thus, the Sovereign States have as much right to judge the usurpations of the Judicial Branch as they do the Legislative and Executive Branches. (p196)

That all 3 Branches of the federal government obtain their delegated powers from the Constitution; and they may not annul the authority of the States. And if the Judicial Branch connives with other Branches in usurping powers, our Constitution will be destroyed. (p196)

So the Judicial Branch does not have final say as to the rights of the parties to the constitutional compact. Otherwise, the delegation of judicial power would annul the authority delegating it; and the concurrence of the judicial branch with the other branches in usurping powers, would subvert the Constitution forever. (p196)

In Federalist No. 46, Madison says, respecting unconstitutional acts of the federal government:

  • The People can refuse to cooperate with federal officers [7th para];
  • State officials can oppose the feds [7th para];
  • State Legislatures can invent legislative devices to impede & obstruct the federal government [7th para];
  • States can cooperate in concerted plans of resistance [8th para];
  • States can easily defeat the federal government’s schemes of usurpation [10th para]; and as the last resort,
  • States must defend themselves from the federal government – that’s why the People are armed.

So Jefferson, Hamilton and Madison tell us: When the federal government asks or directs States to do things which aren’t on the list, the proper response is, “No!”

State Governments Must Man Up and Preserve our Constitution.

The Declaration of Independence says at the 7th para that the colonials “opposed with manly firmness” the King’s “invasions on the rights of the people”.

We need today that same manly opposition to tyranny. And we are starting to see some: The Tenth Amendment Center says over 200 bills have been filed this year in State Legislatures to nullify unconstitutional acts of the federal government. E.g.:

  • To allow terminally ill people access to experimental drugs & medical treatments despite FDA rules – drugs & medical treatments are not on the list! And the 10th Amendment didn’t stop them from usurping powers in this area.
  • Deny resources and assistance to the National Security Agency – spying on us is not on the list! And the 4th Amendment didn’t stop them from spying on us!
  • Nullify federal bans on growing hemp & marijuana. Agriculture and drugs are not on the list! And the 10th Amendment didn’t stop them from usurping powers in this area.

An Indiana Legislator filed a bill to nullify all federal EPA Regulationsenvironmental protection is not on the list! And the 10th Amendment didn’t stop them from usurping power over the environment.

Disarming the American People: If Congress by law, or the President by executive order, or the BATF by rule, or the supreme Court by opinion, or the federal government by UN Treaty, orders The People to turn in our arms, We must refuse to comply. The Constitution doesn’t authorize the federal government to disarm us. Gun control is not on the list! And the 2nd Amendment didn’t stop them from regulating ammunition, firearms, and firearms dealers.

Accordingly, States should pass laws directing their firearms and ammo dealers to ignore all federal dictates which pretend to restrict arms, firearms, ammo, and sales of same. The Law should also provide that the State Attorney General will defend any Citizen of the State from unlawful acts committed against him by agents of the federal government attempting to enforce unconstitutional federal dictates within the borders of the State.

Prayer in the Public Schools: When, in 1962, the US supreme Court began its war against Christianity by banning prayers in the public schools, State legislatures should have passed laws directing their public schools to ignore the unconstitutional opinion of the supreme Court. “Religion”, “prayers”, and “public schools” are not on the list of delegated powers. And the 1st Amendment didn’t stop them from “prohibiting the free exercise of religion”.

Brave Citizens Must Man up Also.

As noted above, Madison says in Federalist No. 46 that the People can refuse to cooperate with federal officers.

Rosa Parks & Martin Luther King showed us spine 50 years ago when they nullified the State & local Jim Crow laws by refusing to obey those unconstitutional laws.

Recently in Connecticut, Citizens refused to obey an unconstitutional State law which pretends to require them to register their firearms. Art. I, §15, CT Constitution says:

“Every citizen has a right to bear arms in defense of himself and the state.”

If you are a “Citizen”, you have the right to bear arms – that’s all you need in Connecticut. So the Connecticut Statute making it a felony to possess guns which are not registered is unconstitutional as in violation of Art. I, § 15 of the State Constitution.

And The People – as the creators of the State government – are the ones to ultimately decide!

All nullification requires is a spine. And Rosa Parks & MLK showed us what spine looks like: You say, “No more!”

The “we lost the civil war” objection to Nullification.

Those who chant this objection seem to have in mind the “nullification crisis of 1832”. Let’s debunk it:

The southern States were agricultural. They bought manufactured goods from England. England bought southern cotton. Infant industries in the North East were producing some of the same manufactured goods as England; but because they were more expensive than the imports, they couldn’t compete.

So in 1828, Congress imposed a high tariff on the imports. The Southern States called this the “tariff of abominations”, because it made the English goods too expensive to buy; and when the Southern States stopped buying English goods, England stopped buying Southern cotton. This devastated the Southern economy.

Note that Congress has specific authority to impose tariffs on imports: Art. I, § 8, cl. 1. So the Tariff Act of 1828 was constitutional.

The nullification crisis of 1832 was brought on because S. Carolina wanted to “nullify” the Tariff Act of 1828 – a constitutional law! South Carolina developed a bizarre theory that

  • A State has a “constitutional right” to nullify any federal law; and
  • The nullification is presumed valid unless ¾ of the States say it isn’t valid.

In James Madison’s Notes on Nullification (1834), he discussed and debunked S. Carolina’s theory. He said:

  • The federal government has delegated authority to impose tariffs;
  • The Constitution requires that tariffs be uniform throughout the United States;
  • States can’t nullify tariffs authorized by the Constitution;
  • ¼ of the States don’t have the right to dictate to ¾ of the States on matters within the powers delegated to the federal government; and
  • Nullification is not a constitutional right.

Near the end of his Notes, Madison quoted Thomas Jefferson’s famous statement:

“…but where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact …to nullify of their own authority all assumptions of power by others within their limits …” [emphasis mine]

Madison then says:

“Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression.” [emphasis mine]

Do you see? Madison’s points are:

  • States may not properly nullify constitutional acts of the federal government; and
  • When an act of the federal government is unconstitutional, nullification is a NATURAL RIGHT – not a “constitutional right”. 5

Start Doing YOUR Duty

Your Duty is to read our Declaration of Independence and Constitution and learn The List of Enumerated Powers. YOU were supposed to enforce the Constitution with your votes. But instead of supporting only candidates who knew and obeyed our Constitution, you abdicated your Responsibility and voted for candidates who told you what you wanted to hear.

For the Sake of your Country and Posterity, you must also renounce cowardice and appeasement as the response to evil.

If you fail us, hell on Earth is just around the corner.

Endnotes:

1 The other Remedy is to elect faithful representatives. At the Virginia Ratifying Convention on June 20, 1788 at [223], James Madison said our Constitution depends on the people having the “virtue and intelligence to select men of virtue and wisdom” to office. In Federalist No. 44 [12th para from end], he says when Congress usurps powers, and the executive and judiciary departments go along with it,

“…a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers…” [emphasis mine]

We must start electing candidates who know the Constitution!

2 THIS Chart lists the enumerated powers over the Country at Large and illustrates how Principles in our Declaration of Independence were implemented in our Constitution.

3 Stop quibbling over terminology. As a People, we have lost the ability to think conceptually. When some don’t see the word, “nullification”, in a writing, they insist the writer didn’t support it. But the concept is refusal to submit to unconstitutional laws. You can call it “non-violent civil disobedience”, “that original right of self-defense”, “resistance”, “refusal to obey”, “impeding & obstructing”, “nullification”, “interposition”, or something else. I use “nullification” because the term has a distinctive meaning and was used by our beloved Thomas Jefferson. You may call broccoli “broccoli”, a “green vegetable”, a “cruciferous vegetable”, a “super food”, or “little trees”. But “broccoli” is the most precise and distinctive term. Do you see?

4 So when Michael Farris, and others who tell us a convention is the only way out, disparage nullification as an “extra-constitutional doctrine”, the proper response is: Nullification is NOT a “constitutional right or remedy” – it is that NATURAL RIGHT of self-defense which pre-dates and pre-exists the Constitution. Farris has repudiated our Founding Principles that Rights come from the Creator God, and that the purpose of government is to secure the Rights GOD gave us (Declaration of Independence, 2nd para). In Farris’ brave new world, “rights” come from the Constitution – where they are subject to the will of human governments. See, e.g., his so-called “parental rights” amendment HERE. “Child raising” is not now on the list of delegated powers – but §3 of Farris’ “parental rights” amendment would delegate power over children to the federal government. Read it.

5 Rights don’t come from the Constitution! They come from GOD! PH

May 3, 2015

 

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May 3, 2015 - Posted by | Jim Crow laws, Kentucky Resolutions of 1798, Madison's Notes on Nullification (1834), Madison's Report on the Virginia Resolutions (1799-1800), Martin Luther King, Nullification, nullification deniers, South Carolina nullification crisis, Tariff of Abominations, Tarrif Act of 1828 | , , , , , , , , , , , , , , , , ,

23 Comments »

  1. Despite his strong defense of the Constitution, it is disconcerting–and mystifying–that he still doesn’t believe in the right of a State to nullify unconstitutional acts. Can’t he see that by taking that senseless tack he is, in effect,leaving no alternative for the States to peacefully resolve their issues with an overreach federal gov’t except armed rebellion or secession?

    Thank you, Huldah, for your stellar and scholarly analyses. PLEASE keep up this important work. .

    Like

    Comment by Jim Delaney | July 10, 2016 | Reply

    • Of whom are you speaking?
      I have found that nullification deniers invariably support an Article V convention….. They tell us that an Article V convention is the only way out for us….

      Like

      Comment by Publius Huldah | July 11, 2016 | Reply

  2. […] Source: Nullification: The Original Right of Self-Defense « Publius-Huldah’s Blog […]

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    Pingback by Nullification: The Original Right of Self-Defense « Publius-Huldah’s Blog | Topcat1957's Blog | March 22, 2016 | Reply

  3. Wow, this is interesting stuff. Thanks for taking the time to articulate this.

    Like

    Comment by aarongray | September 12, 2015 | Reply

    • Thank you! And with the quotes & hyperlinks I provided, you can check it out for yourself to see if I told you the Truth.

      And you can ask whatever questions you have about our Constitution.

      Like

      Comment by Publius Huldah | September 12, 2015 | Reply

  4. […] The short and clear paper HERE proves that nullification of unconstitutional acts of the national government is the remedy advised […]

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    Pingback by Searching for “Marriage” in the Fourteenth Amendment « Publius-Huldah's Blog | May 11, 2015 | Reply

  5. […] make laws addressing these objects for active duty military personnel. 6. The short and clear paper HERE proves that nullification of unconstitutional acts of the national government is the remedy advised […]

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    Pingback by SEARCHING FOR “MARRIAGE” IN THE FOURTEENTH AMENDMENT | Exposing Modern Mugwumps | May 8, 2015 | Reply

  6. […] make laws addressing these objects for active duty military personnel. 6.The short and clear paper HERE proves that nullification of unconstitutional acts of the national government is the remedy […]

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    Pingback by No 941 “En mi opinión” Mayo 6, 2015 | My Blog "EN MI OPINION" | May 6, 2015 | Reply

  7. All I am ever able ever to say is, “Hallelujah” for Publius Huldah. It can never be better said better. All “WE” should ever do is Spine Up/Show Up. Get-er-done vigilantly.

    Like

    Comment by Noah | May 4, 2015 | Reply

  8. Ever fighting the good fight! Thank you so very much for another clear and honest article.

    Like

    Comment by Mike Foil | May 4, 2015 | Reply

  9. This is very informative. I live in New York State which is as tyrannical as the federal government which is an added burden.

    Like

    Comment by PatriciaDance | May 3, 2015 | Reply

  10. One of the things I find interesting is how Mark Levin calls those who promote nullification, “kooks”. Of course, that is to be expected from someone who is intentionally misleading everyone to believe that a Constitutional Convention is a solution to our problems and the only one available.

    As mentioned in the article above, those who oppose nullification cite James Madison’s notes in 1834 as proof. To which Mark Levin also does. Yet one of Levin’s “liberty” amendments is to codify the nullification that Madison objected to. That is, to nullify any laws made by Congress whether constitutional or not. But wait, there is more!

    “By giving the state legislatures the ultimate say on major federal laws, on major federal regulations, on major Supreme Court decisions, should 3/5 of state legislatures act to override them within a two year period,” Levin said, ” it doesn’t much matter what Washington does or doesn’t. It matters what you do.” ~Mark Levin, Annual A.L.E.C. Conference, Dec 5, 2014

    So under Mark’s amendment: if the states fail to nullify unconstitutional laws within two years of being passed, the states are bound to obey those laws, even though they are unconstitutional. That is until Congress sees fit to change them or through additional amendments.

    With the amount of laws that Congress produces every year, does anyone think that 30 states can effectively coalesce and nullify them all within two years?

    Just think of all the constitutional laws the Democrats could nullify when they are in power… or have they never controlled 30 states before and never will?

    If COS doesn’t succeed at completely replacing the Constitution at a convention, it won’t be long afterwards until everyone will wish to replace the chaotic constitution which Levin’s “liberty” amendments created. Something to keep in mind; before the new system can be effectively implemented, the old system must first be completely destroyed so no one can effectively argue for or want to return to a system that was proven to be a failure.

    The irony is, the system they wish to impose is a old failure itself.

    Like

    Comment by Blue Tail Gadfly | May 3, 2015 | Reply

    • One more thing to add. Even if Levin’s amendments only empowered the states, by shifting the delegated powers granted to the federal government to the states, Mark removes a check and balance against states usurping power.

      “Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress. How wise will it be in them by cherishing the union to preserve to themselves an advantage which can never be too highly prized!” ~Alexander Hamilton, The Federalist #28, 1787

      How wise indeed, unfortunately Levin has proved himself to be otherwise.

      “It is a fatal heresy to suppose that either our State governments are superior to the Federal or the Federal to the States. The people, to whom all authority belongs, have divided the powers of government into two distinct departments, the leading characters of which are foreign and domestic; and they have appointed for each a distinct set of functionaries. These they have made coordinate, checking and balancing each other like the three cardinal departments in the individual States; each equally supreme as to the powers delegated to itself, and neither authorized ultimately to decide what belongs to itself or to its coparcener in government. As independent, in fact, as different nations.” ~Thomas Jefferson to Spencer Roane, 1821

      Like

      Comment by Blue Tail Gadfly | May 3, 2015 | Reply

  11. Publius Huldah et al: I feel blessed to live in the state of Texas with a governor and attorney general who feel compelled to guard the rights of its citizens to the best of their ability. HOWEVER, I fear for the over-arching activities of the federal government that are already committed to subduing possible future rebellions throughout all 50 states. For reference I submit the following: http://www.silverdoctors.com/dave-hodges-on-jade-helm-15-the-governments-war -on-u-s-citizens/#more-52793 Also: http://search.aol.com/aol/search?q=Operation%20Jade%20Helm&s_it=keyword_roll over&ie=UTF-8&VR=3430 and http://www.apfn.org/apfn/camps1.htm and http://www.constitution.org/abus/terror/USArmy-InternmentResettlement.pdf Note that the last (governmental tome), references internment of both civilian, military, and displaced persons. The question here is: Who will step forward and appeal to All Citizens in All 50 States in an effort to repel the efforts of a (potentially) tyrannical federal government that is already planning our national submission and/or servitude? Clearly, local militia are woefully ill-equipped to handle the task if it comes down to force(s).

    Like

    Comment by paradigmrw | May 3, 2015 | Reply

  12. To sort out these things, to read what, for example, you have written and now the Constitution, requires strict absolute selfLESSness first. Without it, we begin poorly, and MUST turn back. Self-centeredness, selfishness lead us astray at every turn. That is just so simply the way it is. I, and others, are infinitely grateful that you, out of your years of use in your work, and now out of it, have made the choice to use your time for mankind to endeavor to aid us to see with our eyes opened what was long ago written to protect each and all of us in this fine new country!! And through it, we have become the protectors of all mankind, if we but knew it. But first unself, then patiently relearn till we understand, and then, truly loving our fellow man, and ourselves properly, apply it. And be infinitely grateful for it! Thank you, dear friend. Carol

    Like

    Comment by Carol Boggs | May 3, 2015 | Reply

  13. P.H.,

    In your endnote # 3 you state that the “concept is refusal to submit to unconstitutional laws”. My question is who decides if a law is unconstitutional? Clearly not the Supreme Court although they believe that is their right.

    Madison states in the Report of 1800 on the Virginia Resolution that the states as the members of the compact that established the Constitution are the final authority. But that raises other questions. Does each state acting independently decide constitutionality? Can Texas determine a law is unconstitutional while 49 others disagree? It appears that both the Virginia and Kentucky Resolutions were dropped by those states when no other states agreed with the resolutions. Does that mean both Madison and Jefferson believed states could not act alone on nullification?

    Another related issue, Madison defines the word “states” to mean the people of the states in his Report of 1800. But there is no mechanism for the people of a state to register their opinion about the constitutionality of federal laws other than by their votes but that is not really a refusal to submit.

    I would appreciate your thoughts on the matter.

    Like

    Comment by Don Mellon | May 3, 2015 | Reply

    • Don, I am sure that if you re-read it and be open to what is already set forth, you will see that I addressed these issues…

      Like

      Comment by Publius Huldah | May 3, 2015 | Reply

  14. You failed to mention necessary powers inherent to federal responsibilities.

    Like

    Comment by Rob John | May 3, 2015 | Reply

    • huh?

      Like

      Comment by Publius Huldah | May 3, 2015 | Reply

  15. Good morning PH

    Ditto.

    Re: “They never said, “When the federal government ignores the Constitution, amend the Constitution”. They never said, “File a lawsuit and let federal judges decide.”

    I am constantly reminded of something Judge Robert Bork wrote in his Washington Times article “Turning to Constitution in Times of Stress” a few years ago:

    “The essence of conservationism is fidelity to the reality principle. Not for us, we pride ourselves, the utopian vaporings of the left. In times of stress, however, the temptation for conservatives is to reach for bromides to palliate their sufferings.”

    Thus he began an analysis of those “conservative bromides”–among them, the Balanced Budget Amendment which does PRECISELY what you described…it institutionalizes the already unconstitutional actions, and removes the remedy from the people via their House, and places it into the hands of unelected judges.

    So much for “bromides” (don’t ya just love that turn of a phrase?)

    Anyway, the REAL issue before is was suggested by Phillip E. Johnson:

    “One who claims to be a skeptic of one set of beliefs is actually a true believer in another set of beliefs.”

    We must be ever aware that those who are skeptical of our Constitution as originally written are actually true believers in something else not found in our Constitution–hence the drive to change it.

    Me thinks that it is this “other” set of beliefs that now cloaks itself in the movement that asserts: “To be Constitutional we must change the Constitution.” This is at minimum an absurd vaporing if ever there was one. Unfortunately, such absurdities are all that are required by those who seek justification rather than a reason. The issue is simple: the “other beliefs” that are to be put into the Constitution were deliberately excluded from it in the beginning because they are antagonistic to its aims. History affirms that those “new” principles simply do NOT produce what they promise, but in fact, their opposite.

    The BIG lie today is that structures will remain intact when the foundations are shifted. You would think TV pictures of an earthquake would be sufficient to refute that supposition. Not so per our Founders:

    “There is a natural and necessary progression from the extreme of anarchy to the extreme of tyranny; and that arbitrary power is most easily established on the ruins of Liberty abused to licentiousness.” ~ George Washington Maxims, Circular to the States, June 8, 1783.

    God bless
    M. Craig Elachie

    “It may be true that you can’t fool all the people all the time, but you can fool enough of them to rule a large country.” ~Will Durant

    Like

    Comment by M. Craig Elachie | May 3, 2015 | Reply

  16. God Bless.

    Like

    Comment by david | May 3, 2015 | Reply

    • A short comment!

      Like

      Comment by Publius Huldah | May 3, 2015 | Reply


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