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Reconstruction: Conclusion

We discuss the decisions and events leading to the end of formal Reconstruction, culminating with the corrupt bargain ending the election of 1876 and the continuing attacks on multiracial democracy in America. We conclude by reflecting on the legacy of Reconstruction era amendments, the lingering effects of historical attempts to misrepresent and erase that legacy, and the unfinished work they represent.

Participants: Harry Sandick, Jon Hatch

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Bonus Episode: Impeachment Redux

In the wake of the second Trump impeachment, we review the Johnson, Clinton, and (first) Trump impeachments (and Nixon’s resignation), and conclude that not much is new under the sun. We also reflect on the inherently political nature of the impeachment process, and ask whether it works at all. (It doesn’t, really.)

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Reconstruction: 19th Amendment, Part 2

During World War I, suffragists pursue both national and state-by-state strategies. The National Women’s Party takes a more radical approach with protests and hunger strikes, and is met with violence. The Wilson administration and Congress yield after continued organizing, and the 19th Amendment is ratified. Further activism leads Congress to pass the ERA, but ratification falls three states short. Years later, three new states ratify, and the U.S. Archivist gets sued.

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Reconstruction: 19th Amendment, Part 1

We begin our discussion of the struggle for women’s political rights in the United States with the Revolution, with a focus on the fight against coverture and slavery, and the particular challenges for Black women. The abolitionist, labor, and temperance movements provide early opportunities for organizing. The Seneca Convention presents the Declaration of Sentiments. The 15th Amendment reveals a rift in the movement between white women and women of color.

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Reconstruction: 15th Amendment

We discuss how organizing among African-Americans, continuing violence in the former Confederacy, and a union of principle and politics in the North lead Congress to move toward universal male suffrage, two years after rejecting it. Proponents of a guaranteed right to vote debate those seeking only a ban on racial discrimination, and conflicts erupt with some supporters of female suffrage. Things get messy in Congress. The final result is both momentous and compromised.

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Bonus Episode: Historical Parallels

The team convenes again to further discuss the January 6, 2021 insurrection and its echoes of the end of Reconstruction, as well as thoughts about the way forward.

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Reconstruction: 14th Amendment – Equal Protection Clause

Ongoing mob violence spurs Congress to try to help Black Americans achieve meaningful equality. But in the 1870s, the Supreme Court limits the clause to cover only state action, despite Congress’s intentions. In the 1890s, it allows segregation by state governments. In 1964, it trades anti-subjugation for anti-classification. And in 1967, it creates qualified immunity, and then later expands it to shield almost all conduct by state law enforcement.

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Reconstruction: 14th Amendment – Privileges & Immunities and Due Process Clauses

Congress draws on Article IV and the Corfield opinion to craft a new privileges and immunities clause, but the Supreme Court quickly narrows its scope to near-invisibility. Lochner era courts use the due process clause to promote economic rights but twist the Amendment’s meaning, until substantive due process is repurposed in the 1930s. Recent opinions hint at a resurrected privileges and immunities clause, but at what cost?

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Reconstruction: 14th Amendment – Birthright Citizenship Clause

We discuss ancient and early modern doctrines regarding the inheritance of citizenship, state and federal citizenship in the early republic, and early arguments for racial equality among citizens. We return to Dred Scott’s creation of a racial exclusion to citizenship, the Reconstruction Congress’s efforts to legislate race-neutral birthright citizenship, culminating in the 14th Amendment, and the persistence of racial and national exclusions.

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Bonus Episode: 14th Amendment, Section 3 and Impeachment Revisited

In light of the January 6, 2021 insurrection at the Capitol and the second impeachment of Donald Trump, the team has reconvened to further discuss the history and mechanics of Section 3 and the use of impeachment against former government officials.

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Reconstruction: 14th Amendment – Overview & Sections 2–4

We begin our review of the 14th Amendment with the lesser-known middle clauses. Northern demographics, racism, and sexism block universal voting rights, leading to indirect support of male suffrage that is too complicated to work. Section 3 precludes officeholding by ex-Confederates but ends up interfering with the prosecution of Jefferson Davis. Section 4 upholds Union and cancels Confederate debts, and maybe means we can have a giant platinum coin.

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Reconstruction: 13th Amendment

We review the history of resistance by enslaved people in the United States, and how the Civil War changed things, leading to widespread self-emancipation. We then talk about the intended scope of the amendment, its passage through moral arguments, solidarity, bribery, and self-interested political calculation, and conclude by discussing how the Supreme Court has narrowed its self-executing provisions while leaving room for more expansive legislation.

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Prelude to Reconstruction: Harper’s Ferry through the Corwin Amendment

John Brown leads a raid on Harper’s Ferry and becomes a martyr. The Republicans prepare for their first real shot at the presidency. The Democratic convention disintegrates, the Northern and Southern wings propose competing candidates, and the Deep South prepares for its exit. Lincoln is elected, Southern states secede, and Thomas “Wagon Boy” Corwin tries for one last compromise. The North moves toward abolition as a way to win the war.

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Prelude to Reconstruction: Fugitive Slave Act of 1850 through Dred Scott

In the wake of Prigg, Congress passes its worst law. Abolitionists debate whether the Constitution is pro-slavery, anti-slavery, or neutral. For love of a railroad, Stephen Douglas blows up the Missouri Compromise, and a preview of the Civil War breaks out in Kansas. The Republican Party coalesces out of disparate opponents to the Democratic Party’s increasingly aggressive stance on slavery. The Supreme Court issues its worst decision.

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Prelude to Reconstruction: Constitutional Convention through Prigg

For hundreds of years, enslaved people resist and escape. The delegates’ initial compromises in 1787 give disproportionate influence to slaveholders. Additional compromises, including the Fugitive Slave Act of 1793 and Missouri Compromise, both recognize and limit slavery. (Some) Northerners become concerned about a rising Slave Power. Prigg v. Pennsylvania endorses slavery but creates a limited space for Northern resistance.

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Announcing Season 3: Reconstruction

We’re back, with a new season about the next era of constitutional development: Reconstruction. Join us as we discuss the 13th, 14th, 15th, and 19th Amendments and surrounding events, America’s subsequent retreat from the promises of Reconstruction, and the continuing struggles these amendments reflect.

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Bonus Episode: The Militia and Naval Acts

We return with a “lost” episode about how early Congresses filled in details that the Constitution left open. The Militia Acts strike a delicate balance between the state and federal governments and fail utterly to create a trained militia, so Congress and the Supreme Court decide to pretend the Militia Clauses just don’t exist. Meanwhile, the Naval Act allows for traditional patronage politics to create an effective navy despite considerable challenges.

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Unadopted Amendments of the 1810s: Titles of Nobility and Ill-Timed Reversals

Jerry Bonaparte gets married. Congress decides it really hates titles. The Titles of Nobility Amendment is almost ratified, but falls two states short, leading to a few conspiracy theories. (Lawyers are still US citizens, we promise.) Tensions with England and France rise. New England Federalists meet in Hartford, change their minds on several issues, make an ill-timed proposal, and are never heard from again.

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Early Constitutional Law Decisions: Arguments, Assets, Banks, Boats, Charters, Crimes, Debts, and Dams

A debt is paid, but not to the debtor. A will is probated, but not for the heirs. An argument is skipped, despite prior arrangements. A bank is taxed, without being named. A lottery is launched, but tickets are forbidden. A charter is granted, but withdrawn by others. A vault is emptied, but the contents are returned. A ship is wrecked, but its contents resurface. A dam is broken, and a ship sails on.

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Twelfth Amendment: Gaming the System

Article II, Section 1 is founded on accident, immediately shows signs of trouble, and implodes within 12 years. Hamilton schemes, and others counterscheme. The Federalists swap Pinckneys. The Democratic-Republicans fail to coordinate and Jefferson and Burr end up tied. Jefferson grabs a few votes, the House deadlocks, and Bayard makes a last minute deal. The Democratic-Republicans take the route of least ambition, and fix only a few out of a host of problems.

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Eleventh Amendment: Speculators and Self-Interest

The Convention commits a basic drafting error (probably). Georgia fails to pay some debts, Virginia claims some land, and Massachusetts grabs some property. The Committee of Detail drafts Article III. Randolph seizes an opportunity for an old client (and some new ones), Wilson rules in favor of his investments, Iredell is ignored, and everyone freaks out. Congress fixes a problem but creates a new one.

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Bill of Rights, Part 7: Unknown Rights and Limited Powers

The Tenth Amendment places (arguably) redundant restrictions on federal powers. The Patterson team discusses the ineffable nature of the Ninth Amendment, whether as a double redundancy, a murky wellspring of unknown rights, or an acknowledgment of the incompleteness of constitutionalism.

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Bill of Rights, Part 6: Civil Juries

The Normans bring the original form of the jury to England in 1066 (or did they?) The colonists make jury rights central to the revolution, but the delegates don’t make the effort to add them to the Constitution. The Seventh Amendment preserves the right to a civil jury, without much guidance. The Supreme Court looks to history, except as to size. The Patterson team debates the continued relevance and importance of juries in modern cases.

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Bill of Rights, Part 5: Criminal Procedure

The Patterson team discusses some of the Stuart abuses that shaped what rights ended up in the Fifth, Sixth, and Eighth Amendments. Freedborn John refuses the oath ex officio. Sir Walter Raleigh is denied the right to confront Cobham. Judge Jeffreys presides over the Bloody Assizes. Patrick Henry confuses the difference between “didn’t” and “shouldn’t have.” We pause to discuss a recent decision on double jeopardy and provide a (very) brief history of incorporation.

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Bill of Rights, Part 4: Searches and Seizures

Writs of assistance come to the colonies, James Otis sets himself aflame with oratory, and John Adams takes notes. Massachusetts leads the way in restricting warrants. Dollree Mapp protects some salacious activities and writes herself into history. Georgia rejects the mullet doctrine and the Sixth Circuit rejects chalking. The Patterson team discusses the exclusionary rule and the breadth (or lack thereof) the Fourth Amendment’s protections.

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Bill of Rights, Part 3: Military Amendments

The Patterson team discusses the English and colonial antecedents of the Second Amendment, the fear of standing armies motivating its proposal, and the Congressional modifications before ratification. We then examine every federal appellate case interpreting the Third Amendment. (It doesn’t take long.)

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Bill of Rights, Part 2: Religion and Expression

Early colonists try to balance religious liberty with established state churches. John Peter Zenger goes to trial and suffers a pyrrhic loss. The murky origins of the free speech clause. James Madison slyly tweaks proposals from the state ratifying conventions. Federalists and Democratic-Republicans battle over the Sedition Act in the shadow of the new First Amendment. Thomas Jefferson proposes a radical fix that nearly undoes the Constitution.

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Bill of Rights, Part 1: Drafting and Ratification

Federalists and Anti-Federalists debate the necessity, danger, and efficacy of amendments. Madison takes charge and persuades Congress to go along, eventually. The Senate ditches state restrictions and a strict separation of powers. Congress sends 12 amendments to the States. 10 are quickly affirmed and become the Bill of Rights. One is rejected due to micromanagement and bad math. One takes the long way round to become the 27th Amendment.

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Mini-episode: 19th Century Constitutionalism and the Republic of Indian Stream

A riverine ambiguity leads the locals to return to first principles, and draft a constitution. The citizens borrow some rights, expand some others, delve into equal protection and equal obligation, reject separation of powers, and graft an executive, legislative, and judicial council onto a town meeting. A hardware store debt leads to an international incident, and Daniel Webster removes the devil from the details.

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Judiciary Acts, Part 2: Midnight Judges and Missing Commissions

The Patterson team debates whether the 1789 Act is pro-debtor or creditor. The Federalists giveth to the Midnight Judges, and the Democratic-Republicans taketh away. Marshall and Chase contemplate a strike. Marbury v. Madison establishes judicial review—or does it? The justices resume circuit riding, and fold in Stuart v. Laird. Concern over civil rights slowly opens the door to expanded federal jurisdiction, until the railroads kick it down.

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Judiciary Acts, Part 1: Hang Like a Bat to Every Particle

The First Congress picks up where Article III left off. Oliver Ellsworth gets possessive. The justices are told to make like post-boys and get on their horses. Congress tries to avoid amendments, and omits federal question jurisdiction and appeals from criminal trials or pro-federal decisions. The Rules of Decision Act is added at the last moment, leading to countless litigation over a provision that may not have applied in the first place.

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Bonus Episode: Professor Michael Klarman (Rebroadcast)

On this bonus episode, we spoke with Professor Michael Klarman, author of the excellent book the Framer’s Coup: The Making of the United States Constitution, about how the Framers designed the Constitution to be less democratic than the existing state governments, how the Federalists managed to ratify the Constitution over strong opposition, the mistakes of the antifederalists, and whether we should mythologize the Constitution and its founders.

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Ratification, Part 4: The Anti-Federalists’ Last Stand

The Federalists face a 46–19 disadvantage in New York and adopt a strategy of delay. The Anti-Federalists don’t sweat New Hampshire, but word of Virginia’s ratification sways their resolve. Melancton Smith is persuaded by argument. The namesake of Great Jones Street makes a proposal that leads to New York’s ratification. Sick of being lumped in with Rhode Island, North Carolina relents. Rhode Island joins the Union kicking and screaming.

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Ratification, Part 3: The Anti-Federalists Strike Back

New Hampshire makes nine. The Anti-Federalists belatedly get their act together and put up a fight. Patrick Henry blusters and bullies his way through the Virginia convention. George Mason and Edmund Randolph each offer up their limbs. John Marshall makes promises that the Supreme Court is absolutely not going to back up. James Madison conquers his weak constitution with a strong Constitution. Virginia ratifies, but things still look rough in New York.

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Ratification, Part 2: Eight is Almost Enough

Delaware quickly ratifies, and Pennsylvania Federalists convene, imprison a few delegates, and force a quick ratification. New Jersey, Georgia, and Connecticut quickly ratify to grab equal Senate representation. The Massachusetts Federalists show flexibility and deploy a few rumors, John Hancock gets coy, and everyone goes home happy after ratifying. Martin overplays his hand in Maryland. South Carolina uses some creative allocation. New Hampshire decides to delay.

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Ratification, Part 1: Monarchy Men, Military Men, Aristocrats, and Drones

The Patterson team explores the differences between Federalists and the Federalist Party, and fail to come up with an alternative name for the anti-Federalists, The Constitution goes public. The Federalists press their urban advantages, and their advantages in the press. Richard Henry Lee tries to kill the Constitution in the Articles Congress, but Madison maneuvers for a unanimous vote. Anti-Federalists develop their arguments.

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Season 2: Renovations

We’re back! The Constitution has been drafted—but how did it overcome anti-Federalist opposition to get ratified? And how did the omissions and mistakes in the original draft get fixed (or not)? Join the Patterson team for a new season of How to Build a Nation in 15 Weeks, including further details on ratification, the Bill of Rights, the Judiciary Act of 1789, the 11th and 12th Amendments, and more.

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Bonus Episode: Interview with Professor Michael Klarman

On this bonus episode, we spoke with Professor Michael Klarman, author of the excellent book the Framer’s Coup: The Making of the United States Constitution, about how the Framers designed the Constitution to be less democratic than the existing state governments, how the Federalists managed to ratify the Constitution over strong opposition, the mistakes of the antifederalists, and whether we should mythologize the Constitution and its founders.

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Conclusion: “A republic, if you can keep it.”

The end of an 18-week journey. Thanks to our colleagues, our producers, and the Firm. Reflections on the Convention, including the question of authorship, the past and current quality of political dialogue, the guiding design (or lack thereof) of the Constitution, the fear of corruption, the value of compromise, and the Notes as literature. Plans for season two, including ratification, the Bill of Rights, and more.

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Week 16, Part 2: Get the People to Sign Off

The Constitution goes public, and Congress sends it to the states for consideration. Adams and Jefferson react, and confirm that the delegates probably should have added a Bill of Rights. The Federalists and Anti-Federalists square off. The states ratify and create a new nation, though North Carolina and Rhode Island miss opening day. The delegates go on to lead the republic they helped create. The Patterson team covers 15 years of American history in 15 minutes.

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Week 16, Part 1: Look for Unanimity, if You Can Find It

A little-known clerk inscribes the parchment we all know. Franklin urges unanimity in supporting the Constitution and proposes a convenient form of signing, but Randolph, Gerry, and Mason aren’t impressed. Washington speaks up for a more representative House, and a final alteration is made. The delegates sign, with three holdouts. Franklin has the last word and speaks of a rising, not setting, sun. The delegates gather one last time at City Tavern.

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Week 15, Part 2: Don’t Forget a Bill of Rights

Mason seeks a few hours to add a Bill of Rights. The delegates reject the idea, but regret it later. Everyone ends up with a different understanding of the commerce clause. The delegates have a raucous party at the City Tavern, rally the next morning for a long day, agree to ban domestic emoluments, settle on the President’s pardon power, and decide not to do this again. The Patterson team discusses the tonnage clause and whether a President can pardon himself.

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Week 15, Part 1: Leave the Door Open for Change

Gerry worries about weakening the role of the states in the amendment process; Hamilton wants to leave them out altogether. Wilson declares it worse than folly for Congress to have a say in ratification. The Committee of Style offers a new draft. The delegates reconsider the Presidential veto power. Mason does some arithmetic. Congress's powers are questioned. The Patterson team discusses past and current attempts at a new convention.

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Week 14, Part 2: Find Something for the Vice President to Do

The delegates debate the duties of the Vice President, where he belongs, and if he’s even necessary. Particular powers of the executive are considered, and the delegates fleetingly revisit impeachment. Mason resurrects the Privy Council to advise on appointments, but King kills it for good. Madison gets hung up on peace treaties. The Patterson team weighs in on some of the final debates before the articles head into the Committee of Style.

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Week 14, Part 1: Don’t Elect a Minion or a Monster

The delegates discuss the limits of ineligibility. Madison has a change of heart regarding general welfare. The delegates introduce the Vice President (finally). Morris methodically defends the electoral college, Rutledge tries to stall, and Gerry makes things needlessly complicated (again). Wilson fears a President that is but a minion of the Senate; Hamilton fears a monster. The Patterson team discusses at least a dozen ways to select the executive.

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Week 13, Part 2: Fill in the Blanks

The delegates debate the addition of new states to the union. Connecticut sticks up for Vermont, Wilson freaks out, and Martin gets in some good zingers. The delegates decide how many states should be required for ratification after some complex proposals. Morris suggests speed, Gerry urges unanimity, Mason makes threats, and Randolph self-destructs. The Committee on Postponed Parts is formed. The Patterson team weighs in on the use of committees and how to name them.

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Week 13, Part 1: Don’t Go Back on Your Word

The delegates return to the pardon power. Sherman proposes federalizing state militias. Dickinson tries to expand judicial impeachment. Pinckney protects religious liberty. Randolph loses his cool. The delegates debate supermajority requirements for laws regulating commerce after some Southern delegates walk away from their promises. The Patterson team discusses the seeds of the Civil War built into the Constitution’s treatment of slavery. 

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Week 12, Part 2: Don’t Defer Critical Issues for Two Decades

Luther Martin rails against slavery, and Georgia and South Carolina rail back. An awful compromise is reached based on some unexpected alliances. Mason advocates for sumptuary laws, but the other delegates decide that the law of necessity is enough. The delegates consider the financial crisis of their time, but let the issue pass by. The Patterson team considers a medley of timely provisions like the foreign emoluments clause and the pardon power.

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Week 12, Part 1: Good Rules Shouldn’t Go Without Saying

Pinckney proposes incorporating individual rights, but the delegates don’t have much interest. Treason is narrowly defined by the Convention. The delegates debate ex post facto laws, and Wilson assumes a bit too much. The delegates revisit the issue of slavery, and discussions get tense. The Patterson team discusses the delegates’ departures from the English experience in the name of constitutional rights.

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Week 11, Part 2: Fight about Fighting

The delegates worry about insurrection, but dispute when the national government can step in. Gerry tries to limit the size of standing armies. Washington gets sarcastic. The Convention gives Congress the exclusive power to “declare” war, but gives the President considerable flexibility. The Patterson team discusses how the power to declare war has become blurred over time, and learns the difference between a letter of marque and a letter of reprisal.

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