Contributor Post Created with Sketch. Trump No Conservative in Opposing Birthright Citizenship

 
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Donald Trump stoked the immigration fires that are burning up the Republican party by proposing an end to birthright citizenship. This week he claimed that children of aliens who are born on U.S. territory “do not have American citizenship” and that their right is “not going to hold up in court.”

Trump’s argument runs headlong into the Constitution. His proposal shows, once again, that while he may be running as a Republican, he is not running as a conservative. Conservatives believe in following the Constitution’s text, as understood by those who wrote and ratified it and with due regard for the course of American history and traditions. They reject the notion of a living Constitution whose meaning can change to fit the popular demands of the moment.

Trump’s proposal to end birthright citizenship can survive only with a plastic, malleable Constitution. Those who just two months ago decried the Supreme Court’s imposition of same-sex marriage throughout the nation should be the first to reject Trump. His eagerness to read native-born children out of the Fourteenth Amendment smacks of the same liberality toward the Constitution which afflicted the Supreme Court in Obergefell v. Hodges. The text, structure, and history of the Constitution all show that the 14th Amendment recognizes the citizenship of any child born on American territory.

First, the constitutional text. Section One of the 14th Amendment states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The constitutional text flatly states that children born in the U.S. are citizens, without reference to whether their parents are aliens or not.

Congress drafted and sent the amendment to the states for ratification not to change the definition of citizenship, but to affirm American practice in effect ever since the Revolution. While the original Constitution mentions citizenship as a requirement for federal office, it does not define it. Borrowing from the English common law (which admittedly defined subjects rather than citizens), the United States has always filled this gap by following jus solis (citizenship defined by soil, i.e. birthplace) as opposed to jus sanguinis (citizenship defined by blood, i.e. citizenship of the parents).

Trump and his supporters may draw support from the phrase “and subject to the jurisdiction thereof.” Some have argued that this language must exclude the children of aliens from citizenship, because aliens owe allegiance to another nation and hence are not under “the jurisdiction” of the United States. But the constitutional text requires only that the children born in the United States fall subject to American jurisdiction, which means that they are governed by American law. Almost all aliens in the United States, even citizens of other nations, still fall within our jurisdiction while they are in our territory: Otherwise they could commit crimes of all sorts without fear of punishment. Other uses of “jurisdiction” in the Constitution, such as in the 13th and 14th Amendments, also refer to the power to govern by law, not national allegiance.

Instead, “subject to the jurisdiction thereof” refers to certain discrete categories of people excluded from citizenship, even though they might be born on U.S. territory. These include the children of diplomats and enemy soldiers at war who are occupying territory. These individuals could be on U.S. territory, but are not subject to U.S. law. A third and obvious category was American Indians. At the time of the 14th Amendment, American Indians were still considered semi-sovereigns who governed themselves with their own laws and made treaties with the United States. But “subject to the jurisdiction thereof” did not grant Congress the power to pick and choose among different ethnic and national groups for citizenship. Instead, the phrase recognized a few narrow exceptions to the general principle of birthright citizenship that has prevailed throughout American history.

Second, constitutional history. There is only one blemish on the American tradition of birthright citizenship: Dred Scott v. Sanford (1857). In that notorious case, Chief Justice Roger Taney led a 5-4 majority of the Supreme Court in striking down the Compromise of 1850, which limited slavery in the territories. Taney found that slaves were property and they, and their children, could never be citizens, even though born in the United States. Dred Scott helped precipitate the tragedy of the Civil War by preventing Congress from limiting the spread of slavery and reaching a compromise between North and South. Section One of the 14th Amendment directly overruled Dred Scott’s selective grant of citizenship to some races but not others.

The universal nature of birthright citizenship was made clear in the Amendment’s drafting history. During congressional consideration, critics argued that the text would recognize as citizens the children of aliens. In particular, these opponents wanted to allow the western states to “deal with [the Chinese] as in their wisdom they see fit.” Senator Edgar Cowan of Pennsylvania asked: “I am really desirous to have a legal definition of ‘citizenship of the United States.’ What does it mean?” Cowan asked: “Is the child of the Chinese immigrant in California a citizen? Is the child born of a Gypsy born in Pennsylvania a citizen?”

Supporters of the 14th Amendment agreed with Cowan’s reading, even though it may have lost votes for their proposal. Senator John Conness of California replied to Cowan: “The provision before us … relates to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so.” Conness would lose his Senate seat because of his defense of the rights of Chinese immigrants, but the amendment would go to the states for ratification on the understanding that it granted birthright citizenship to the children of aliens.

Third, Supreme Court precedent. Ever since ratification of the 14th Amendment, the Supreme Court has consistently read Section One as granting birthright citizenship to the children of aliens on U.S. territory. The Supreme Court’s reading of the Constitution does not automatically bind the other branches of government or the people — that is another lesson of the Civil War. Abraham Lincoln, for example, rose to prominence by attacking Dred Scott and pledging not to enforce the opinion beyond the parties to the case. But this is one decision of the Court with which he would have agreed.

In United States v. Wong Kim Ark (1898), the Supreme Court faced the birthright-citizenship question directly. Ark involved a child born to Chinese parents in San Francisco. The child left the United States for a trip but was barred from returning to the United States under the Chinese Exclusion Act. While the parents remained Chinese citizens, the child claimed U.S. citizenship under the birthright reading of the 14th Amendment. The Supreme Court upheld the child’s citizenship by virtue of his birth in San Francisco. While Congress could block immigration entirely or control the process of naturalization, it could not alter the right of citizenship for all born within American borders.

The Court read the 14th Amendment to recognize the existing American practice of granting citizenship based on birthplace. It saw no support for a new exclusion of the children of aliens. “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and protection of the country, including all children here born of resident aliens.” The Justices explained that the phrase “and subject to the jurisdiction thereof” only codified the existing exclusions for children of “alien enemies in hostile occupation,” “diplomatic representatives of a foreign state,” and “members of the Indian tribes.” Only these categories “had been recognized exceptions to the fundamental rule of citizenship by birth within the country.” The Court explicitly rejected the claim made today by some that aliens, because they owed allegiance to a foreign nation, were not within “the jurisdiction” of the United States. Instead, the Court concluded that the amendment “in clear words and in manifest intent, includes the children born within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States.”

The Supreme Court has never seen fit to question its original judgment in Wong Kim Ark. In this case, unlike others (such as Obergefell), the Supreme Court read the constitutional text, structure, and history exactly right.

Of course, the American people can always amend the Constitution to change the principle of birthright citizenship. Putting to one side the waste of time and resources entailed, amending the Constitution would be a sorry mistake. Rather than being a misguided act of generosity, the 14th Amendment marks one of the great achievements of the Republican party. It was the Republican party that opposed Dred Scott. It was the Republican party that fought and won the Civil War. And it was the Republican party that drafted and ratified the 13th, 14th, and 15th Amendments, which did away with slavery and any distinction between Americans based on race. If we are to discard one of the greatest attributes of American exceptionalism, let it be the handiwork of nativist Democrats and candidates who appeal to the lesser angels of their nature.

This article is cross-posted at National Review Online.

There are 155 comments.

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  1. kmtanner Inactive

    Trump support is going to grow if you mention this. So there is no use for this.

    • #1
    • August 23, 2015, at 8:09 AM PDT
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  2. TeeJaw Inactive

    The anchor baby phenomenon did not exist when the 14th was adopted and if it had it would have been excluded. We need to do whatever is necessary to stop this abominable insult to our sovereignty as a nation, whether that be a Constitutional amendment or otherwise.

    More and more I am beginning to wonder why Ricochet claims to be conservative. Why not just come out of the closet and admit that this is a site mostly for the Republican establishment and its devotees.

    • #2
    • August 23, 2015, at 8:15 AM PDT
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  3. Brian Watt Member
    Brian Watt Joined in the first year of Ricochet Ricochet Charter Member

    Thanks, John. Now the trick will be to get Mark Levin, Sean Hannity and Ann Coulter to admit that they’re wrong on the matter. In the meantime, be prepared for an onslaught of attacks by fervent Trump supporters.

    • #3
    • August 23, 2015, at 8:19 AM PDT
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  4. The Dowager Jojo Inactive

    But “subject to the jurisdiction thereof” did not grant Congress the power to pick and choose among different ethnic and national groups for citizenship.

    What on earth does this mean? Eliminating the tradition of birthright citizenship does not pick and choose among different ethnic and national groups. It picks and chooses among those who are here legally and those who are not. That sentence is a despicable smear on those who disagree with birthright citizenship. It is an illogical use of the race card. It discredits the writer.

    • #4
    • August 23, 2015, at 8:22 AM PDT
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  5. Brian Watt Member
    Brian Watt Joined in the first year of Ricochet Ricochet Charter Member

    TeeJaw:The anchor baby phenomenon did not exist when the 14th was adopted and if it had it would have been excluded. We need to do whatever is necessary to stop this abominable insult to our sovereignty as a nation, whether that be a Constitutional amendment or otherwise.

    More and more I am beginning to wonder why Ricochet claims to be conservative. Why not just come out of the closet and admit that this is a site mostly for the Republican establishment and its devotees.

    The anchor baby phenomenon exists because we have a relatively open border that’s not secure. Seal the border and much of the anchor baby issue goes away. But there will always be foreign nationals who enter the country legally for the purposes of delivering children in the United States.

    An effort to attack and rewrite the 14th Amendment is a mistake for all the reasons John mentioned. Given your background, shouldn’t you challenge him on his argument point-by-point or in a greater measure of specificity?

    • #5
    • August 23, 2015, at 8:32 AM PDT
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  6. Freesmith Inactive

    Not only is John Yoo an advocate of impotence, but he goes further and tells us we should be proud to be impotent.

    • #6
    • August 23, 2015, at 8:35 AM PDT
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  7. Ball Diamond Ball Inactive

    I’d like to point out that the point, while well made, is really fighting the last war.
    Conservatism has been issued a death sentence under the GOP, and we will now do what it takes to break the GOP.
    Trump, Schmump. I would vote for a can of orange juice as long as it hurts the GOP.

    • #7
    • August 23, 2015, at 8:38 AM PDT
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  8. MarciN Member

    Times have changed. And our needs as a nation have changed.

    There is nothing sacred about the amendments to the Constitution. Prohibition was repealed. It did not work.

    The circumstances in which the Fourteenth Amendment were passed are different from those we face today. The framers of the Constitution provided for change and growth in the United States. That is why they created the amendment possibility.

    There is a very simple, honorable fix for this problem: Children are the same nationality as their parents. Period.

    This one-sentence correction could be passed immediately. There are no grounds for disagreement with it.

    • #8
    • August 23, 2015, at 8:41 AM PDT
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  9. Ball Diamond Ball Inactive

    John Yoo:
    “Donald Trump stoked the immigration fires that are burning up the Republican party by proposing an end to birthright citizenship.”

    That’s one way of looking at it. Another is that the GOP has cut down a forest, chopped and carried acre-feet of wood, started and stoked a fire that is burning up the GOP through its repeated and overt attempts to ram amnesty and MORE immigration into reality.
    Debacles like the one you’re about to see don’t come into being overnight. We’ve been warning you for years. Get ready.

    • #9
    • August 23, 2015, at 8:43 AM PDT
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  10. Manfred Arcane Inactive

    So what does Mr. Yoo think of this quote?:

    Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, supported Howard, contending that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else . . . subject to the complete jurisdiction of the United States.” Indians, he concluded, were not “subject to the jurisdiction” of the United States because they owed allegiance—even if only partial allegiance—to their tribes. Thus, two requirements were set for United States citizenship: born or naturalized in the United States and subject to its jurisdiction.”

    … and this one…

    “In 1866, Senator Jacob Howard clearly spelled out the intent of the 14thAmendment by stating:

    “Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”

    I confess I cannot bring myself to read Mr. Yoo’s post in detail because he obviously is not giving credit to the other side of the debate.

    • #10
    • August 23, 2015, at 8:48 AM PDT
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  11. Ball Diamond Ball Inactive

    Conservatives (as long as we are lecturing each other about what conservatives believe) do not believe that the Constitution is a suicide pact. You will find that this is not a new argument. There is nothing in the Constitution so sacrosanct that it mandates the end of the Republic. That’s Libertarianism.

    To the extent that a conservative believes that the current “Constitutional” immigration and naturalization regime is a death trap, that conservative is *correct* in assessing very lightly the rectitude of its supporting interpretation, no matter how well-founded that interpretation may have become over the passage of time.

    But this point and a constellation of a thousand such points are lost on the GOP, which has its Chamber of Cronyism labor targets in its sights, and both the Constitution and conservatives can go to blazes. Right then. Blazes it is.

    • #11
    • August 23, 2015, at 8:53 AM PDT
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  12. Lash LaRoche Inactive

    MarciN:Times have changed. And our needs as a nation have changed.

    There is nothing sacred about the amendments to the Constitution. Prohibition was repealed. It did not work.

    The circumstances in which the Fourteenth Amendment were passed are different from those we face today. The framers of the Constitution provided for change and growth in the United States. That is why they created the amendment possibility.

    There is a very simple, honorable fix for this problem: Children are the same nationality as their parents. Period.

    This one-sentence correction could be passed immediately. There are no grounds for disagreement with it.

    Amen. The Constitution is neither holy writ nor a suicide pact.

    • #12
    • August 23, 2015, at 8:59 AM PDT
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  13. Freesmith Inactive

    John Yoo

    Capital punishment is mentioned in the Constitution in several places, yet progressives look forward to it being declared unconstitutional. Please name the progressives who recommend the amendment process to accomplish that abolition.

    One will suffice.

    • #13
    • August 23, 2015, at 9:01 AM PDT
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  14. Ball Diamond Ball Inactive

    Mike LaRoche:
    “Amen. The Constitution is neither holy writ nor a suicide pact.”

    Zackly! To a certain breed of beltway conservative, the constitution is to be revered for elections and ignored the rest of the time. I believe the religious refer to “Sunday Christians”.

    • #14
    • August 23, 2015, at 9:02 AM PDT
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  15. Manfred Arcane Inactive

    MarciN: Children are the same nationality as their parents. Period. This one-sentence correction could be passed immediately. There are no grounds for disagreement with it.

    Bravo! Well posed.

    • #15
    • August 23, 2015, at 9:08 AM PDT
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  16. Freesmith Inactive

    John Yoo

    The Second Amendment has traditionally and historically been seen as protecting the right of Americans to own guns, but progressives have been trying to re-define and limit that right for decades.

    Name the progressives who recommend the amendment process to accomplish the fine-tuning they have in mind.

    One will suffice.

    • #16
    • August 23, 2015, at 9:08 AM PDT
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  17. Freesmith Inactive

    As I have said elsewhere, there are two sides in the political battles in today’s America – one that fights, and one that says stop the fighting.

    Who would you bet on to win?

    • #17
    • August 23, 2015, at 9:14 AM PDT
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  18. Bob Wainwright Member

    Congress can’t change the Constitution, but it could pass a law clarifying or even re-defining what the jurisdiction of theUnited States means. So even if we acknowledge the truth of Yoo’s argument, that only means that the concept of jurisdiction meant one thing in 1868. A law could be passed changing that legal definition.

    • #18
    • August 23, 2015, at 9:14 AM PDT
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  19. Kirk Member
    Kirk Joined in the first year of Ricochet Ricochet Charter Member

    Birthright citizenship has nothing to do with race, ethnicity, gender, or any of the multitude of categorizations we live under today. To me, the key point is legality – if the mother is not in the country legally, the baby cannot be considered a citizen. If the mother is breaking the law, then the baby cannot benefit from the mothers illegal presence in the United States. My logic behind this position is that a core foundational principle of the U.S. is that this a a country of laws. If this requires a clarification of the wording or intent of the 14th amendment, then that would be done, first by an act of Congress (which would of course end up at the Supreme Court), then by an amendment if the Supreme Court rules against the law.

    • #19
    • August 23, 2015, at 9:20 AM PDT
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  20. Freesmith Inactive

    Democratic politician or polemicist: “Yes, we can!”

    Republican politician or polemicist: “No, we can’t…and you’re stupid and boorish to ask for it.”

    • #20
    • August 23, 2015, at 9:21 AM PDT
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  21. Al French of Damascus Moderator

    Mr. Yoo’s post implies that there is no other interpretation of the 14th amend amendment than his. Manfred Arcane points out another. For a full exposition of that position see this article at the Library of Law and Liberty.

    • #21
    • August 23, 2015, at 9:22 AM PDT
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  22. The Cloaked Gaijin Member

    Dear Mr. Californian,

    The Constitution is not a suicide pact or a license to cause bankruptcy. Illegal immigrants cost money. Even if you get rid of the entire welfare state, which will never happen, the taxpayers still have to fund the schools and the emergency medical service at which point the citizens who are the taxpayers start to wonder why they don’t get free health care.

    Experts have differing opinions about this topic.

    • #22
    • August 23, 2015, at 9:33 AM PDT
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  23. Freesmith Inactive

    Is there a better way either to turn people off to politics or to make them susceptible to a demagogue than to tell them that there is no chance they can bring about the changes they want?

    If our officials tell us that something as basic as defining who is and who is not a citizen is out of our control – while simultaneously admitting that what is and what is not a marriage is in our control – why should anybody be surprised by a rise in cynicism and apathy among voters who used to think they had agency?

    Why should anybody be surprised AND NOT ACCEPT FULL RESPONSIBILITY for creating the frustration which leads to a Ross Perot or a Donald Trump?

    • #23
    • August 23, 2015, at 9:36 AM PDT
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  24. Ball Diamond Ball Inactive

    Freesmith: Blammo!

    • #24
    • August 23, 2015, at 9:42 AM PDT
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  25. Freesmith Inactive

    John Yoo

    Here’s why Americans today can re-define citizenship to eliminate “anchor babies:”

    Because we think it’s right and in America the people rule.

    Trust the people.

    • #25
    • August 23, 2015, at 9:46 AM PDT
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  26. Pelayo Inactive

    If we did a better job of securing the border, the opportunities for illegal aliens to come here and give birth to “anchor babies” would be greatly diminished and make the current debate much less relevant.

    Here is another thought: Allow birthright citizenship to continue but change Immigration practices such that family members of these “anchor babies” do not get any preference in applying for U.S. Citizenship. That will effectively eliminate the incentive for illegal aliens to pursue the practice.

    • #26
    • August 23, 2015, at 9:56 AM PDT
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  27. Ball Diamond Ball Inactive

    Easy Fellas. I disagree with Yoo, but I’d like to see more of him around here, not less.

    • #27
    • August 23, 2015, at 10:00 AM PDT
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  28. Hydrogia Inactive

    The child resides with the parents, the parents are not legally in the country, not legal residents, therefor do not reside in the State but in the country of origin.

    What about that?

    • #28
    • August 23, 2015, at 10:01 AM PDT
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  29. Dustoff Inactive

    And in the meantime………………the sack of Rome begins.

    Mr. Yoo’s article and subsequent comments and insights by the Ricochetti are great reading, principled, and insightful arguments. No doubt there will be much more impassioned and reasoned discussion here. That aside my observation is simply that Mr. Trump has just torpedoed his clearest and strongest proposition to the country: that we need to control our boarders; that we need to build a serious fence.

    It is obvious many Americans get their arms and heads around this common-sense idea. We are known after all for building stuff. The pressing issue is not a constitutional one. The pressing issue is one of resolve and construction management.

    Trump’s introduction of 14th Amendment discussion undermines what I believe is the first and most important step in protecting our economy and culture: building the damn fence, so we can sort out all the other details and constitutional questions before, and not after Rome falls.

    • #29
    • August 23, 2015, at 10:02 AM PDT
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  30. Jerry Giordano (Arizona Patrio… Member

    JY presents a very strong originalist defense of his position on birthright citizenship, with which I agree under the 14th Amendment. I haven’t seen anything on the other side (including Manfred Arcane’s article linked in #21 above) that seriously challenges it. For example, MA’s argument:

    Quotes Senator Jacob Howard explaining that “This will not, of course, include persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”

    Notice that pesky inserted “or”? In post #10, Howard’s statement omitted the “or” (and included no other words between “aliens” and “who”), making it more consistent with JY’s argument. Also, it appears that Howard’s statement was a verbal quote, and we should be very careful relying on it.

    MA’s argument is further weakened when he claims that the Wong Kim Ark decision is inapplicable in the present circumstances, because Wong’s parents were in the US legally. But the (weak) originalist argument makes no distinction based on the legal or illegal status of the parents. If one accepts MA’s argument, the key question is whether the parents owed “partial allegiance to anyone else.” Both legal and illegal immigrants fail this test.

    From an originalist standpoint, I find the Wong Kim Ark case compelling. It was decided in 1898, about 30 years after adoption of the 14th Amendment. The Justices would have had personal memory of the adoption and its intent.

    • #30
    • August 23, 2015, at 10:03 AM PDT
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