Friday, January 18, 2008

Ron Paul, Libertarianism and the Constitution

A number of the libertarian critics of Ron Paul argue that he isn't really a libertarian at all, merely a supporter of states rights. While this could be true, I find the evidence offered unpersuasive. It takes two forms, for each of which I offer an example:

1. Ron Paul introduced a bill to legalize raw milk--but only where it was not in violation of state law.

2. Ron Paul argued against the decision in Lawrence, on the grounds that the Constitution said nothing about a right of privacy or a right to engage in homosexual sex, hence Texas had a right to make a law against sodomy.

The obvious explanation of the first case and similar evidence is that Ron Paul was a federal legislator, not a state legislator; his job was preventing violations of individual freedom by the federal government. The fact that he didn't also try to prevent violations of freedom by state governments is no more evidence that he supported them than the fact that I'm not currently in North Korea trying to overthrow its government—or even contributing money to such a project—is evidence that I support that particular oppressive government.

The second case raises a more complicated issue. Quite a lot of libertarians express support for and admiration of the U.S. Constitution. Timothy Sandefur, in the course of attacking Ron Paul, wrote that in order to be a libertarian: “You don’t have to be an Objectivist (or a Christian or a whatever), but you do have to believe at least in the principles of the Declaration of Independence and the Constitution of the United States.” In response to my objection that the Constitution was in some ways non-libertarian—for instance, it explicitly forbade ending the slave trade prior to 1808—he backed off from his original statement. But it does, I think, reflect an attitude common in the libertarian community.

The problems with claiming moral authority for the Constitution were pointed out long ago by Lysander Spooner. But there remains the weaker claim that the Constitution sets up a structure of government favorable to liberty and should therefor be supported by libertarians. From this standpoint, when Ron Paul argues that the state of Texas has the right to ban homosexual sex, he is describing its legal right under a legal structure he approves of, not its moral right. There is nothing inconsistent, so far as I can see, with both believing that the courts ought to interpret the Constitution literally and also believing that some of the things which will be held constitutional if they do so are violations of individual rights not protected by the Constitution, and should be opposed on those grounds.

What did Paul actually write about the case? "Ridiculous as sodomy laws may be, there clearly is no right to privacy nor sodomy found anywhere in the Constitution. There are, however, states’ rights – rights plainly affirmed in the Ninth and Tenth amendments." That seems consistent with the interpretation offered above and inconsistent with the view that Ron Paul approves of sodomy laws as long as they are at the state level. Pretty clearly, what he is saying is not that he approves of them but only that they are not in violation of the Constitution.

Is he right? So far as the grounds the courts actually used for the decision, I think he is, that both that case and Roe were examples of the Court reading into the Constitution what they thought ought to be there, not finding in it the intent of the original authors. One might argue that those decisions could be defended as following from the Ninth and Tenth Amendments, but I think that too would be a considerable stretch.

One of the issues that I do not think I have seen seriously discussed in libertarian literature is the tension between support for strict interpretation of the Constitution and support for libertarian legal outcomes. I'm curious, for instance, as to Tim's view of Justice Field, whom I once described as "Earl Warren in a White Hat." He was a very influential 19th century Justice who, so far as I can see, first decided what ought to be in the Constitution and then went looking for ways of persuading his colleagues that it was really there, at least implicitly. On the whole, his modifications were in a libertarian direction. Should we approve?

What I find strikingly missing in the argument that Ron Paul is not a libertarian is evidence that he actually supports state laws against sodomy, or against drug use, or supports other such violations of individual rights. There are lots of strongly stated claims that he supports, or does not oppose, such, but they all seem to depend on deduction from the arguments I have discussed above.

The one exception is abortion; he not only pretty clearly approves of state laws against it, he supports federal legislation that would, in effect, ban it; to that degree he violates, as Sandefur has correctly argued, his own support for states rights.

While this is evidence that Ron Paul is not a consistent supporter of states rights, it isn't evidence that he isn't a libertarian, because some libertarians regard abortion as a violation of the rights of the fetus; it is, I think, a minority position, but not one inconsistent with being a libertarian.

I should add that I would not want this post to be taken as an endorsement of Ron Paul. Various of the critics have offered pretty convincing evidence that, at least as represented by material that went out under his name in connection with his newsletters, he held some strikingly nutty views, and I think his own statements suggest a somewhat weaker version of the same conclusion. The nutty views, however, concern supposed conspiracies to violate our rights. On that basis at least, while he may be a nut, he's a libertarian nut.

P.S. (added in revision). I came across a pretty good defense of Ron Paul with regard to the newsletter issue webbed by James Harris. He argues that the offensive material in the newsletters was written over a period of only a few years, that it's believable that Ron Paul was not responsible for it, and that it's inconsistent with a much larger body of his writing and speaking.

29 Comments:

At 1:52 PM, January 18, 2008, Anonymous Anonymous said...

Here are "Ron Paul's Freedom Principles", hidden in plain view on his Congressional website. Judge for yourself whether he's a "real" libertarian or not:

* Rights belong to individuals, not groups.

* Property should be owned by people, not government.

* All voluntary associations should be permissible -- economic and social.

* The government's monetary role is to maintain the integrity of the monetary unit, not participate in fraud.

* Government exists to protect liberty, not to redistribute wealth or to grant special privileges.

* The lives and actions of people are their own responsibility, not the government's.

 
At 2:33 PM, January 18, 2008, Blogger John Kindley said...

"One of the issues that I do not think I have seen seriously discussed in libertarian literature is the tension between support for strict interpretation of the Constitution and support for libertarian legal outcomes."

I assume you're aware of Randy Barnett's "Restoring the Lost Constitution: The Presumption of Liberty"? I also find instructive this language from Ch.2 of Lysander Spooner's "The Unconstitutionality of Slavery" (1860): "Taking it for granted that it has now been shown that no rule of civil conduct, that is inconsistent with the natural rights of men, can be rightfully established by government, or consequently be made obligatory as law, either upon the people, or upon judicial tribunals ‑‑ let us now proceed to test the legality of slavery by those written constitutions of government, which judicial tribunals actually recognize as authoritative.
In making this examination, however, I shall not insist upon the principle of the preceding chapter, that there can be no law [*16] contrary to natural right; but shall admit, for the sake of the argument, that there may be such laws. I shall only claim that in the interpretation of all statutes and constitutions, the ordinary legal [*17] rules of interpretation be observed. The most important of these rules, and the one to which it will be necessary constantly to refer, is the one that all language must be construed "strictly" in favor [*18] of natural right. The rule is laid down by the Supreme Court of the United States in these words, to wit: "Where rights are infringed, where fundamental principles are [*19] overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects." [*20]
It will probably appear from this examination of the written constitutions, that slavery neither has, nor ever had any constitutional existence in this country; that it has always been a mere abuse, sustained, in the first instance, merely by the common consent of the strongest party, without any law on the subject, and, in the second place, by a few unconstitutional enactments, made in defiance of the plainest provisions of their fundamental law."

 
At 2:39 PM, January 18, 2008, Anonymous A.B. said...

As for sodomy laws, it doesn't tell us about Ron Paul's idea in regards to libertarianism, but it tells us something about the way he applies libertarianism to his own actions.

While he had no duty to make false conclusions about the constitutionality of sodomy laws, doing so might have saved innocents at a very little cost to himself.

I feel the situation is a bit similar to jury nullification. While I don't think a juror has a duty to lie to protect the accused when the law is illegitimate, I believe not doing so is on par with walking by a drowning person without calling for help.

While Ron Paul may be technically correct about sodomy laws, he is letting a crime happen.

One might say that his reason for doing so could be to foster a stricter interpretation of the constitution, with the intent to save more people eventually.

I have the impression it's not, I strongly feel that Ron Paul his defending the constitution as an end rather than a mean, but I cannot prove it.

 
At 2:49 PM, January 18, 2008, Blogger Dominik Hennig said...

@David: Very reasonable thougts, I agree! I am very disappointed and appalled about some vile and hateful views in the "paleo-libertarian" orbit (LvMI/LRC)!

I just read currently "Das Räderwerk der Freiheit" ("The Machinery of Freedom") and when my English is improved I will read your book in originally language!

Kind regards

Dominik Hennig

 
At 3:45 PM, January 18, 2008, Anonymous Anonymous said...

Libertarians should welcome libertarian results, however obtained.

And I don't think we have much to fear from judges. Even at their worst, they can't do much harm.

As far as Ron Paul and the Lawrence decision, frankly this is probably just a politician doing what policians do - having it both ways. His position has some appeal for people on both sides. (I'm a big Paul fan, btw).

 
At 8:22 PM, January 18, 2008, Blogger David Friedman said...

John Kindley points me at Randy Barnett's book. I know of it but haven't read it through. One of the reasons I put my point as "I do not think I have seen" was that I had a suspicion, from knowing Randy and having heard him speak, that he might have discussed the question.

 
At 8:33 PM, January 18, 2008, Anonymous lawecon said...

David, I'm somewhat surprised that you did not address Ron Paul's views on immigration, which views are found here and in the links therefrom. http://www.ronpaul2008.com/issues/border-security-and-immigration-reform/

These pages contain many factually false statements, such as there is no such thing as a nation without "secure borders" [by which Paul apparently means restrictions on immigration] although there were apparently no such restrictions at all until the latter stages of the French Revolution [some three hundred years after there were nation states] and no such restrictions in the United States until the 1880s.

Further, Paul displays quite well the corrupting influence of his views on immigration on his other purported perspective by making arguments like "Illegal immigrants also threaten to place a tremendous strain on federal social entitlement programs." http://www.ronpaul2008.com/articles/131/amnesty-and-the-welfare-state/

Placing a tremendous strain on entitlement programs for a libertarian would seem to be a cause for celebration, but apparently not for Paul.

 
At 9:07 PM, January 18, 2008, Anonymous William H. Stoddard said...

Paul is not going to get my vote, primarily because of his position on abortion: I think that Roe v. Wade, even if questionable as Constitutional law, established a result that is desirable on libertarian grounds and should be preserved, and some of Paul's reported positions even seem to go beyond repealing Roe v. Wade and setting the states free to make their own decisions (which I don't think should be done, any more than I think they should be free to mandate segregation or to enslave part of their populations) to actively imposing anti-abortion positions at the federal level. I will not vote for any candidate who takes such positions.

When I decided to begin voting, only a few years ago, I thought about how to implement my libertarian convictions—and I decided that I wasn't prepared always to vote for the candidate who endorsed a consistently libertarian platform; if there was a crucial issue where one of the candidates likely to be elected took a morally repugnant position, and the other did not, I would consider voting against the worse candidate. The major issue where many candidates take a morally repugnant position is abortion: many candidates want to ban it, and I don't consider that acceptable in a free or civilized society. As a result, I'm very unlikely to vote for any Republican, and I may very well vote for a Democrat. Hardly ever with any enthusiasm, but the right to control of one's own body is more fundamental and more important than rights to property.

Incidentally, I think that it could be argued that the Constitution's guarantee against deprivation of life, liberty, and property, implemented in the old 19th-century spirit of "substantive due process," requires preserving the right to abortion, quite apart from appeals to the "right to privacy."

 
At 10:24 PM, January 18, 2008, Blogger David Friedman said...

William Stoddard writes:

"Incidentally, I think that it could be argued that the Constitution's guarantee against deprivation of life, liberty, and property, implemented in the old 19th-century spirit of "substantive due process," requires preserving the right to abortion, quite apart from appeals to the "right to privacy.""

I mentioned Justice Field's 19th century project of reading into the Constitution the things he thought should have been there. Substantive Due Process was his most successful creation.

 
At 11:15 PM, January 18, 2008, Blogger montestruc said...

David,

I think you of all people should appreciate the fact that any set of laws is only relatively more or less libertarian than another. The only totally authoritarian system of laws, is the rule of a king by his word of the moment, as much of of humanity has been forced to endure at various times.

I would have you recall that one of the greatest contributions to the liberty of man was made by the slave holding, warmongers for profit Romans who gave us public written law, and the principle of rule of law.

As I recall it is hard to find a time in history outside of the 20th and early 21st centuries where chattel slavery was not in existence over very large parts of the earth.

On what rational basis do you think that the founders of the USA could have won the war of independence and held together the nation without the support of the southern slave holders, or do you think that they would not protect their interests.

 
At 4:00 AM, January 19, 2008, Anonymous Anonymous said...

"Placing a tremendous strain on entitlement programs for a libertarian would seem to be a cause for celebration, but apparently not for Paul."

It's only cause for celebration if you figure that it will cause a collapse of the system...you know, the worse-is-better approach to progress.

Liberals don't seem to be worried.

 
At 4:28 AM, January 19, 2008, Blogger KipEsquire said...

"Ridiculous as sodomy laws may be, there clearly is no right to privacy nor sodomy found anywhere in the Constitution. There are, however, states' rights -- rights plainly affirmed in the Ninth and Tenth amendments." That seems consistent with the interpretation offered above and inconsistent with the view that Ron Paul approves of sodomy laws as long as they are at the state level. Pretty clearly, what he is saying is not that he approves of them but only that they are not in violation of the Constitution.

This is precisely why Ron Paul is not a libertarian, and why any libertarian who supports him is a fool.

States do not have "rights." Only individuals have rights. States have powers -- powers that they can and do abuse.

He can tiptoe around the issue ad nauseum, and people like you can cite his nebulous context-dropping bromides all you want. Paul loathes the Fourteenth Amendment, loathes judicial review and worships unbridled majoritarianism.

Those who would sell their souls for a tax rebate are not exactly arguing from the moral high ground.

Radical anti-freedom neoconfederalists who support Paul are rational. Libertarians who support Paul are not.

 
At 8:13 AM, January 19, 2008, Blogger Charles said...

Why libertarians would want to claim RP at all, never mind want him to be president, is beyond me. I have heard him interviewed now 2-3 times, and the outstanding impression is that he is yet another presidential candidate (or incumbent) who simply isn't of the intellectual caliber it seems thoughtful people would require. He doesn't seem to know even basic facts about some of his focus issues. (Eg, how many troops are overseas). Some positions are simplistic. (Eg, no right to sodomy; and no, just because he's parroting the brilliant J. Scalia doesn't make it otherwise.) What is the incredible appeal that these mediocrities have for so many?

Surely no one rational votes for a presidential candidate, who if elected, will have to make decisions on myriad complex, often unanticipated issues, based on the naive assumption that they will unilaterally implement their typically pollyannaish - and in this case, ideologically suffused - campaign promises.

And re. kipesquire's comment, ditto to most of his points.

- Charles

 
At 9:30 AM, January 19, 2008, Blogger Joshua Holmes said...

States have powers -- powers that they can and do abuse.

The question is how one ought to address those abuses. To a strong federalist, the idea of the federal government correcting a state government is as absurd as the UN correcting the US. That's not because the federalist supports the underlying wrong, but because the federalist is worried that the exercise of good interference will empower the exercise of bad interference. For example, a federal government that overrides a state sodomy law in a libertarian direction could just as easily do the opposite.

Given that rights-protection is necessary, the question turns to one of structure. Federalists argue that weak central governments are a net benefit to liberty. Friedman argues that anarchism is likely to produce the most libertarian law but concedes that it won't do so necessarily (I happen to agree). You argue that a central state, perhaps even a strong one, is necessary to protect liberty. The question isn't one about our various libertarian bona fides, but how to structure the best rights-protection system. Ron Paul has structural disagreements with you (and with me), but we are libertarians.

 
At 12:02 PM, January 19, 2008, Anonymous Anonymous said...

'Surely no one rational votes for a presidential candidate, who if elected, will have to make decisions on myriad complex, often unanticipated issues, based on the naive assumption that they will unilaterally implement their typically pollyannaish - and in this case, ideologically suffused - campaign promises.'

Unless you mean to argue against democracy in general: what is your point?

 
At 12:08 PM, January 19, 2008, Anonymous Anonymous said...

KipEsquire:

I could hardly disagree more.

Whats makes you think paul wants states to have power, and why do you think that is even relevant for someone running for president of the federation?

Paul prefers states rights over federal rights, but i think his carreer in texas proves he would rather see those state powers significantly curbes aswell. But that is not his role as president. The idea is to abolish the machinery of oppression, not try to wield it as a weapon for our cause. It needs to be cast into mount doom before someone else gets his grubby hands on it.

 
At 1:42 PM, January 19, 2008, Blogger David Friedman said...

Kipesquire writes:

"States do not have "rights." Only individuals have rights. "

The word "rights," like many other words, has multiple meanings. Moral rights are one meaning, legal rights another.

Under current court precedents, for instance, a local government has a legal right to seize my property under eminent domain and transfer it to a private developer. I don't think it is has moral right to do that--but then, moral and legal rights are different things.

As I suggested in my post, one can support a legal structure which gives states the legal right to do things some of which you don't believe they have the moral right to do, on the grounds that that legal structure will, on average, result in less rights violation than alternative structures.

 
At 5:42 PM, January 19, 2008, Blogger Charles said...

"Moral rights are one meaning, legal rights another."

And from whence come these "moral rights"? Where do I go to look up whether the state has a "moral right" to - for example - redistribute wealth? (Other than the authoritative "Ron Paul's Freedom Principles".)

- Charles

 
At 6:38 PM, January 19, 2008, Blogger montestruc said...

lawecon wrote words to the effect that border security issues did not exist until the 18th century.

It may indeed be true that some nations did not have formal border police, and did not formally regulate them. Trust me it became a problem for Mexico for example to have an open border when vast numbers of American "wet back" (from the Sabine river) immigrants defacto took over the Mexican state of Texas, and seceded, and eventually made it part of the USA and the resulting war gave much of what had been Mexico to the USA.

 
At 9:08 PM, January 19, 2008, Blogger Charles said...

"what is your point?"

Nothing about voting per se, just how voters decide for whom to vote. IMO, making a wish list of issues and then simply doing a dot-product with a candidates' positions is not a good way. Better to try to get an idea of the candidate's decision process: what general principles do they apply, how do they get relevant information, how sophisticated is their thinking on issues, etc.

A sampling of Ron Paul's positions on his House website yields many with which I agree (large dot-product). But it's not clear how those positions were developed and the brief write-ups don't suggest (at least to me) any especially sophisicated assessment (and who knows who actually wrote them). The prominently displayed list of "Freedom Principles" is just pablum - we're all for "good" and against "evil" in principle, it's deciding into which category a specific policy fits that's tricky. So that doesn't help. And as I said, in the interviews I've seen he has come off as bumbling when asked to pursue an issue beyond the sound-bite level.

In other libertarian-oriented blogs I read, folks who started out enthusiastic Ron Paul supporters because of large dot-products are recanting as they get a better feel for him.

So, my point relevant to the post is: who cares whether his dot-product with libertarian ideology is large or small. He doesn't appear to be an impressive candidate either way.

- Charles

 
At 10:37 PM, January 19, 2008, Blogger Charles said...

To elaborate a bit on my earlier reference to RP's "no right to sodomy" position.

IMO, Lawrence is an especially bad case to use as a litmus test for much of anything because it's rather convoluted (unlike all other "rights" cases - which are, of course, crystal clear and uncontroversial). But if one insists on using it as a litmus test for something about RP, his quote suggests that the litmus test comes out "ignorant red".

The inverse of the quote properly translates into "there is a fundamental right to homosexual sodomy", an assertion nowhere to be found in the Lawrence majority opinion. It is mentioned in the opinion as a mistaken issue raised in Bowers, which Lawrence overruled, and in J. Scalia's dissent. But the majority decision was based on a "liberty interest" argument (Kennedy) with a concurring opinion based on EP (O'Connor). One can certainly argue that those arguments are unconvincing, but neither has anything to do with asserting an explicit fundamental right in the Constitution. So, although there's nothing wrong with RP disagreeing with the opinion as written, his specific quote is meaningless.

"... those decisions could be defended as following from the Ninth and Tenth Amendments, but I think that too would be a considerable stretch."

I don't see why the 10th is applicable at all to a defense of Lawrence. But in any case, why so adamant that the 9th isn't? I gather that "retained by the people" is commonly interpreted - as here, I infer - to mean "to be determined by majorities in the individual states". That not only isn't obvious but seems in conflict with the history of the B of R, intended as protections against majorities. The "presumption of liberty" argument (ala Barnett??) seems more convincing.

As I understand it, among possible reasons that the 9th isn't used in practice by SCOTUS in rights cases is the historical fact - to which Prof. Friedman alludes - that the highly suspect SDP became the accepted standard instead and switching now would cause problems (why??). But that doesn't preclude one from making the argument in the abstract.

Caveat lector: IANAL

- Charles

 
At 3:44 AM, January 20, 2008, Anonymous Anonymous said...

"Better to try to get an idea of the candidate's decision process: what general principles do they apply, how do they get relevant information, how sophisticated is their thinking on issues, etc."

Sounds like you want another Nixon: brilliant, sophisticated, flexible, with no pesky morality to get in the way.

 
At 4:57 AM, January 20, 2008, Anonymous Anonymous said...

On secession...

The individuals have a right to assert sovereignty, then create a state. That's not what happens in a democratic secession, where, instead, the majority decides to secede. However, given that the people are living in a majoritarian democracy either way, I don't see exactly why the libertarian objects to secession. Why does he?

If anything, decentralization of power makes democracy less horrible and a more libertarian society far easier to achieve.

 
At 12:45 PM, January 20, 2008, Anonymous Anonymous said...

Charles:

Ok, i can agree with that. Infact, i do not appear to have anything in common with Ron Paul on a philosophical level.

Having a candidate that thinks the way you do is, i agree, far superior to one that just happens to arrive at the same conclusions. A president will have to make more decisions than just the issues brought up in the campaign.

But the good thing in this case is that there is only one issue to consider, and that is getting the federation back to being a federation. His campaign isnt about what he wants to do, it is about what he does not want to do. As long as that is all Paul intends to do, i would support him, even if i knew that deep down inside he was motivated by racial seperatism or something.

 
At 9:25 AM, January 21, 2008, Anonymous severin said...

Someone is going to be president, like it or not. Personally I think there are a bunch of total authoritarians and Ron Paul running. I would prefer Ron Paul, dispite his faults over Clinton, Obama, McCain, Romney, etc.

Is he a libertarian on every position? No. (most notably immigration)

Is he a libertarian on more positions that any other contender? Yes, without question.

If I could vote to end the position of president I would. Fact is that is not an option on the table. Right now we are only talking about voting for who we would like to see RUN FOR PRESIDENT, not on who is going to be president. Of the current choices I would prefer Ron Paul run for president over the others.

 
At 9:30 AM, January 21, 2008, Blogger TGGP said...

worships unbridled majoritarianism.
Certainly not at the federal level. The Constitution is a very anti-majoritarian document.

 
At 11:59 AM, January 21, 2008, Anonymous severin said...

Charles said: "the outstanding impression is that he is yet another presidential candidate (or incumbent) who simply isn't of the intellectual caliber it seems thoughtful people would require."

I would say that Ron Paul is more intelligent than his opponents. Maybe in a perfect world the people who run for president would be intellectual giants, but we do not live in a perfect world and Ron Paul is more intelligent than Huckabee, Romney or McCain. That is who we should be comparing him to. Not some fantasy candidate. If you don't like any of the candidates, that is fine as they are all flawed, including Ron Paul. However, if you are trying to make the point that Ron Paul is not smart enough to be president, I think you are mistaken. He is as or more intelligent than most of the past presidents, and current contenders for the position.

 
At 6:45 AM, January 22, 2008, Blogger Charles said...

severin:

I used "intellectual caliber" instead of "intelligent" deliberately. People with very high IQs (ie, natural mental horse-power) can know very little or reason poorly; people with modest IQs can know a lot and reason skillfully. IMO, it's the package of those abilities that matters.

And people with any package can have a list of positions that correlates high with one's preferred positions. All I'm suggesting is that despite RP's positions, the package doesn't impress me.

I do agree that among the viable candidates, the one who appears not to even make the IQ cut is Huckabee. But then who needs IQ if God is telling you what to do.

- Charles

 
At 3:17 PM, January 30, 2008, Blogger Kodjo said...

David---you postscripted, "the offensive material in the newsletters was written over a period of only a few years, that it's believable that Ron Paul was not responsible for it"

My difficulty with this is that RP put his name to this material. He claimed to be its author and therefore is responsible for it.

Thus, he was either asleep at the wheel, or proclaimed both the weird and vile. Either explanation, in my view, is damning.

Worse, he has not faced up to that responsibility, but instead produced mealy-mouthed denials. No repudiation of the weirdness, or racism (well understood by many he was deliberately courting as other bloggers have shown), or otherwise prejudiced and anti-libertarian (stay in the closet) positions.

Enough. It would have been painful but decent of him to take responsibility, and repudiate the vile.

Instead RP chose the easy weasely.

 

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