Shortly before John Adams helped in drafting the Declaration of Independence in 1776, Abigail wrote to him: “I long to hear that you have declared an independency-and by the way, in the new code of laws which I suppose it will be necessary for you to make I desire you would remember the ladies, and be more generous and favorable to them than your ancestors. Do not put such unlimited power into the hands of the husbands. Remember, all men would be tyrants if they could. If particular care and attention is not paid to the ladies, we are determined to foment a rebellion, and will not hold ourselves bound by any laws in which we have no voice or representation. (Peter Irons “The People’s History of the Supreme Court” 1999 p.12-3) Peter Irons “The People’s History of the Supreme Court” full letter cited on the Liz library
Madison also carried to his grave the rule adopted by the convention that “nothing spoken in the House be printed, or otherwise published or communicated without leave.” Only one delegate slipped from the secrecy rule, dropping a copy of convention procedures on the floor outside the chamber. They were returned to Washington, who dramatically threw the document on his table. “I do not know whose paper it is, but there it is. Let him who owns it take it.” The miscreant did not come forward, but there were no more breeches of the secrecy rule. No delegate wished to risk the general’s wrath again. (Peter Irons “The People’s History of the Supreme Court” 1999 p.22)
The Virginia plan stated that members of the lower house of the national legislature “ought to be elected by the people of the several states.” This raised the fundamental que4stion: Can the people be trusted to elect their own lawmakers? The first delegate to speak on the issue, Roger Sherman of Connecticut, firmly and bluntly said no….. Sherman was seconded by another New Englander, Elbridge Gerry of Massachusetts……Gerry’s attack on popular election of national legislators took the “too much of a good thing” approach. “The evils we experience flow from the excess of democracy,” he argued. (Peter Irons “The People’s History of the Supreme Court” 1999 p.24)
…. Morris outlined his objection to the Virginia Plan, “If the legislature elect,” he argued, “it will be the work of intrigue, of cabal, and of faction; it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment.”….. When the delegates voted, only Morris’s home state of Pennsylvania supported his motion for an “election by the people” of the president. (Peter Irons “The People’s History of the Supreme Court” 1999 p.38-9)
Martin’s last words, spoken on August 31, warned that “the people would be against” the Constitution, and “would not ratify it unless hurried into it by surprise.” Six of the delegates, including the three who stayed through the final session and refused to sign the Constitution, became leaders of the Antifederalist movement against ratification. (Peter Irons “The People’s History of the Supreme Court” 1999 p.55)
In short, the Framers had little in common with the backcountry farmers, small-town tradesmen, and urban “mechanics” who made up the majority of the American population in 1787. To be more correct, the white, male population that owned enough property or paid enough taxes to vote in most states. (Peter Irons “The People’s History of the Supreme Court” 1999 p.59)
The Federalists solved the first problem with strongarm tactics. When the roll call in the legislative session, called to propose a ratification convention, turned up only forty-four members, the Pennsylvania Assembly sent its sergeant at arms to round up at least two of the Antifederalist members, who had boycotted the meeting to prevent a vote they knew they would lose. Surrounded by a self-appointed posse, the sergeant canvassed the taverns and lodging houses near the State House and finally located two of the boycotters, James M’Calmont and Jacob Miley. A later report by the dissenting members described their treatment by the Federalist posse: “Their lodgings were violently broken open, their clothes torn, and after much abuse and insult, they were forcibly dragged through the streets of Philadelphia to the Sate House, and there detained by force.” Federalist members held M’Calmont and Miley in their seats while the Assembly--with its press-gang quorum—voted forty-six to twenty-three to hold elections for a ratification convention. This was hardly a victory for democracy, but neither side in the ratification debate played by the rules of genteel debate. For them, the stakes were too high. (Peter Irons “The People’s History of the Supreme Court” 1999 p.60-1)
The former revolutionary, Patrick Henry, was now a wealthy man, rich in landholdings, and he no longer spoke for the ordinary people he had spurred to fight the British. Ironically, Henry accused the Federalists of speaking for the people without their consent. The preamble to the Constitution began with the words “We the people of the United States” and spoke of their resolve to “form a more perfect union” of the states. Henry, whose speeches consumed more than a fifth of the convention record, vented his anger on Madison and the other Philadelphia delegates> “Who authorized them to speak of We the people, instead of We the states,” he demanded to know. “The people gave them no power to use their name.”
(Peter Irons “The People’s History of the Supreme Court” 1999 p.)
Henry waved a rhetorical copy of the Declaration of Independence before the delegates. The document “which separated us from Great Britain,” he declaimed, had asserted the rights of the people against arbitrary governmental power. But the constitution protected none of these rights. “The rights of conscience, trial by jury, liberty of the press,” he thundered, “all pretensions to human rights and privileges, are rendered insecure, if not lost, by this change.” Echoing his stirring call to rebellion against the British, Henry urged the delegates to rebel against the Federalists. “Liberty, greatest of all earthly blessings-give us that precious jewel, and you may take everything else!” (Peter Irons “The People’s History of the Supreme Court” 1999 p.64-5)
Madison clearly resented those who stirred up fears of an omnipotent and oppressive national government. In his mind, “the great danger lies rather in the abuse of the community than in the legislative body,” referring to Congress. The real danger, he argued, “is not found in either the Executive or Legislative departments of government, but in the body of the people, operating by the majority against the minority.” The majorities he meant by this phrase were not those which elected members of Congress, but those which elected local and state lawmakers. (Peter Irons “The People’s History of the Supreme Court” 1999 p.73)
The third clause provided that “no person religiously scrupulous of bearing arms shall be compelled to render military service in person.” This last clause did not survive the congressional gauntlet, but the first two were blended into the Second Amendment, with their order reversed and the semicolon replaced by a comma. (Peter Irons “The People’s History of the Supreme Court” 1999 p.75)
The men Washington placed on the Court, in contrast, were a thoroughly undistinguished lot. One spent time in debtors’ prison for defaulting on loans; one returned his commission after five days to serve in state office; one never attended a single court session; one was impeached for political bias on the bench; one was insane; and another was senile….
John Jay’s favorite maxim was that “those that own the country ought to govern it,” and he advocated stringent property qualifications on voting. Jay also stated that “the wise and the good never form the majority” of society and that, consequently, government must guard against the “never ceasing union of the wicked and the weak.”…
But support for slavery, in Washington’s mind did not disqualify a man for the Supreme Court. Rutledge was a loyal Federalist and had lobbied for his appointment as Chief Justice…. Rutledge had little attachment to democratic principles. (Peter Irons “The People’s History of the Supreme Court” 1999 p.86-8)
The first six men who actually decided cases on the Supreme Court differed in background, experience, and personality. But they shared four attributes. All were staunch Federalists; all had participated in framing the Constitution or campaigned for its ratification; all belonged to or represented the creditor class with wealth in land or finance; and all believed that the government’s primary function was protecting property rights from the debtor class of workers and small farmers. In these respects, they shared little with “the people” in whose name the Constitution was framed. But they met the test Washington imposed on his judicial choices; loyalty to his party and its nationalistic goals. … (Peter Irons “The People’s History of the Supreme Court” 1999 p.90)
Riding a wave of nationalistic and anti-French sentiment, the Federalists put the Republicans on the defensive. The Rev. Timothy Dwight, president of Yale, delivered a sermon in which he claimed that Jeffersonian Republicanism would make “our wives and daughters the victims of legal prostitution.” As Frenchmen supposedly encouraged their wives and daughters to practice. A Federalist writer urged that Republicans should be treated “as we should a TURK, A JEW, A JACOBIN, OR A DOG.” Diatribes like these turned the voters-white men with property, many with wives and daughters-against the Republicans, and swept the Federalists to an overwhelming victory in the 1798 congressional elections. (Peter Irons “The People’s History of the Supreme Court” 1999 p.98)
Justice Samuel Chase not only rivaled but exceeded Paterson in zealous persecution of Republicans, Chase had publicly urged Congress to adopt the Sedition Act, and he gained the sobriquet of the “hanging judge” for his conduct in trying John Fries for “treason” in 1800. (Peter Irons “The People’s History of the Supreme Court” 1999 p.99-100)
By ruling that corporate charters were “contracts” and thus protected against “impairment by state legislatures, Marshall protected those who provided capital for America’s expanding corporations from political meddling in their business. Justice Story, who differed with Marshall in legal reasoning but agreed with the outcome of the Dartmouth College case, expressed his hope that the Court’s decision “will check any undue encroachments upon civil rights, which the passions of the popular doctrines of the day may stimulate our State Legislatures to adopt.” This equation of “civil rights” with corporate power speaks volumes about the Court’s priorities during this period the protection of property far outweighed the rights of the people like blacks or women. (Peter Irons “The People’s History of the Supreme Court” 1999 p.129)
Jackson had already begun reshaping the Supreme Court before Marshall’s death in 1835, midway through Jackson’s second term….The new president gave the post to John McLean of Ohio. Although McLean had served for six years on the Ohio Supreme Court, his real passion was not law but politics. A major factor in McLean’s appointment, in fact, was that putting him on the Court, on a pledge not to pursue his presidential ambitions, would remove a potential obstacle to Jackson’s second term in the White House. McLean broke his pledge not once but six times between 1832 and 1860, seeking the presidential nomination of six different parties during those years. McLean saw no impropriety in campaigning from the bench, assuring one critic that he would not be subject to “any improper influence” that might “tend to corrupt the Bench.” (Peter Irons “The People’s History of the Supreme Court” 1999 p.142)
However solicitous of “the people,” Taney and his fellow Democrats harbored no animosity toward the “capitalists” who were busily constructing factories to manufacture goods and building railroads to ship them to markets. “While the rights of property are sacredly guarded,” Taney continued in his Charles River Bridge opinion, “we must not forget that the community also have rights, and that happiness and well being of every citizen depends on their faithful preservation.” He looked closely at the original bridge charter and found no grant of an “exclusive privilege” in the charter. (Peter Irons “The People’s History of the Supreme Court” 1999 p.145-6)
The Pierce administration enforced the fugitive slave laws with a vengeance. The arrest of Anthony Burns in Boston in May 1854 prompted a massive abolitionist protest. Burns had escaped from slavery in Virginia and was seized by a federal marshal, who held him for his owner. When Burns was taken before a state judge for a rendition hearing, his owner’s lawyers argued that state courts were required to comply with the Fugitive Slave Act After the judge ruled that the Latimer Law was in conflict with the federal statute, and ordered Burn’s rendition to Virginia, federal troops and the state militia trained a cannon on a crowd of twenty thousand who gathered on Boston Common to protest the decision. William Lloyd Garrison seized the moment with a dramatic gesture. Holding up a copy of the Constitution, he denounced it as “a covenant with death and an agreement with hell.” With these words, he put a torch to the Constitution and burned it to ashes. “So perish all compromises with tyranny!” he cried, echoed by the shouts of the assembled crowd. (Peter Irons “The People’s History of the Supreme Court” 1999 p.153)
When the Strader case reached the Supreme Court, the “states” rights” decision of the Kentucky judges found a receptive audience. Chief Justice Roger Taney wrote for a unanimous Court, dismissing the case for lack of federal jurisdiction. However, he took sides in the dispute, writing that if the slave musicians had returned to Kentucky-willingly or not-their status would have “depended altogether upon the laws of that State and could not be influenced by the laws of Ohio.” Since they never returned to Kentucky, Taney’s opinion on the issue was the rankest form of dictum, the Latin term for judicial statements that go beyond-in this case, far beyond- the questions presented in the case. But the Chief Justice seemed determined in Strader to instruct state judges that the doctrine of “once free, always free” no longer applied in suits for freedom. (Peter Irons “The People’s History of the Supreme Court” 1999 p.161)
Taney couldn’t point to any concrete evidence on this issue. He simply reflected the racial attitudes of his time. Speaking of the century that preceded the Declaration of Independence and the Constitution he wrote that blacks were “regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights that the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his own benefit.” (Peter Irons “The People’s History of the Supreme Court” 1999 p.173)
During World War I, Justice Oliver Wendell Holmes upheld a “sedition” conviction for obstructing the draft. “When a nation is at war many things that might be said in times of peace are such a hindrance to its effort,” Holmes wrote, “that no court could regard them as protected by any constitutional right.” (Peter Irons “The People’s History of the Supreme Court” 1999 p.189)
Grant could point to few accomplishments, but he did place four men on the Supreme Court, one short of a majority. His nominees, all of them corporation lawyers, looked like peas in a pod….Bradley, like Strong a railroad lawyer, came to the Court with a record of hostility toward equal rights for blacks. (Peter Irons “The People’s History of the Supreme Court” 1999 p.197-8)
This case began in 1873 (ironically, the day before the Court issued its Slaughterhouse decision) with a real slaughter in Colfax, Louisiana, the county seat of Grant Parish. An election dispute between white Democrats and black republicans escalated into violence and turned into “the bloodiest single instance of racial carnage in the Reconstruction era,” wrote Foner, that period’s leading historian. Black voters who feared that whites planned to seize the county government gathered at the courthouse, digging trenches and drilling with shotguns. They were assembled by the local sheriff, a Republican, and deputized as a posse to protect county offices in Colfax. On Easter Sunday, after three weeks of sporadic gunfire, a band of whites armed with rifles and a cannon blasted the courthouse, set it ablaze, and massacred the blacks who poured out, waving a white flag of surrender. The death toll remains in dispute; Foner wrote that “some fifty blacks” died, while a black Louisiana legislator stated at the time that “when the sun went down that night, it went down on the corpses of two hundred and eighty negroes.” Whatever the number, there is no dispute that white racists had turned the Colfax courthouse into a human slaughterhouse. (Peter Irons “The People’s History of the Supreme Court” 1999 p.202-5)
Once again, southern Democrats did not shrink from violence in their search for votes. “Armed bands disrupted Republican meetings, whipped freedmen, and murdered local officials,” wrote Eric Foner. To cite one bloody example, a white mob in Hamburg, South Carolina, attacked a Fourth of July gathering of black militiamen, capturing twenty-five as they fled. Matthew Butler, a former Confederate general and the area’s Democratic leader, reportedly singled out five blacks for summary execution. After the Democrats won control of South Carolina’s legislature, white legislators rewarded Butler with election to the United States Senate. (Peter Irons “The People’s History of the Supreme Court” 1999 p.208)
Matthews wrote only two significant opinions; one denied the protections of the Bill of Rights to criminal defendants. And one extended those protections to members of racial minorities. (Peter Irons “The People’s History of the Supreme Court” 1999 p.211)
Harlan concluded with a swipe at Bradley’s patronizing lecture to blacks. “It is,” he wrote, “scarcely just to say that the colored race has been the special favorites of the laws. The statute of 1875, now adjudged to be unconstitutional, is for the benefit of citizens of any race and color.” He reminded his colleagues-and the nation-that “class tyranny” could be imposed by any group that controlled power. “Today, it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship,” Harlan wrote. “At some future time, it may be that some other race will fall under the ban of race discrimination.” (Peter Irons “The People’s History of the Supreme Court” 1999 p.214-5)
He told the Yale graduates of 1891 that the principles of “absolute and eternal justice forbid that any private property” could be “destroyed in the interest of public health, morals, or welfare.” David Brewer was saying that the “police powers” of government to protect the people were subservient to the powers of those who controlled property. He assured his privileged audience that “the love of acquirement, mingled with the joy of possession, is the real stimulus to human activity.” No justice ever penned a greater ode to economic avarice. (Peter Irons “The People’s History of the Supreme Court” 1999 p.218)
Amid this growing strife, the Court remained a bastion of conservatism, earning this banquet toast from a New York banker in 1895: “I give you, gentlemen, the Supreme Court of the United States-guardian of the dollar, defender of private property, enemy of spoliation, sheet anchor of the Republic.” The Court was eager to strike down-as violations of the Fourteenth Amendment-laws that interfered with the “liberty” of businessmen to dictate the wages, hours, and working conditions of their employees. But the justices were not eager to provide the same “liberty” rights to ordinary people, especially blacks. (Peter Irons “The People’s History of the Supreme Court” 1999 p.221-2)
Those who quote the “colorblind” sentence invariably fail to quote the sentence that precedes it in Harlan’s opinion. “The white race deems itself to be the dominant race in this country,” he wrote. “And so it is, in prestige, in achievements, in education, in wealth and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage and holds fast to the principles of constitutional liberty.” (Peter Irons “The People’s History of the Supreme Court” 1999 p.230-1)
Spencer preached a stern doctrine much like the Puritans before who preceded him by two centuries. “The poverty of the incapable, the distresses that come upon the imprudent, the starvation of the idle, and the shoulderings aside of the weak by the strong,” he wrote, “are the decrees of a large far seeing benevolence.”…
Ira Munn refused to apply for a license to operate his business and continued to charge more for grain storage than the law allowed. The state’s attorney general brought charges in 1872, and Munn’s company was fined $100 in county court after a brief trial in which both sides agreed on the facts. The Illinois Supreme Court upheld Munn’s conviction, and his appeal joined several other “Granger cases” that were pending in the Supreme Court. Before the court decided these cases, corporate lawyers expressed optimism that it would strike down “this assault on private property,” as one wrote in the prestigious American Law Review. He added that the Granger movement “was really directed not against abuses, but against the rights of property.” This lawyer found it “perfectly clear that the Granger movement was rank communism.” The first Red Scare had begun, although mid western farmers were hardly resembled the industrial proletariat that Karl Marx called upon in his Communist Manifesto to overthrow the capitalist system. …
He translate Hale’s Latin phrase into simple English; “When private Property is devoted to a public use, it is subject to public regulation.”…. (Peter Irons “The People’s History of the Supreme Court” 1999 p.237-40)
Senator John Sherman, the act’s sponsor, warned his colleagues that failing to curb the monopolies would give ammunition to those who railed against their power. “You must heed their appeal or be ready for the socialist, the communist, the nihilist,” he said. “Society is now disturbed by forces never felt before.” (Peter Irons “The People’s History of the Supreme Court” 1999 p.243)
At Olney’s direction, the federal attorney in Chicago persuaded federal judges to issue a sweeping injunction against the use of “threats, intimidation, persuasion, force or violence” to block trains moving in interstate commerce. Ironically, the judges based the “Debs injunction” on the Sherman Antitrust Act, which the Supreme Court had refused to apply to business monopolies in the Knight case. (Peter Irons “The People’s History of the Supreme Court” 1999 p.246-7)
Some of Holmes rulings carried his deferential philosophy to extremes; the best (or worst) example was his 1927 opinion in Buck v. Bell, upholding Virginia’s “eugenic sterilization” law, under which several thousand “feeble-minded” and “morally delinquent” women had their Fallopian tubes cut by court order. Holmes endorsed the forced sterilization of Carrie Buck, the eighteen-year-old “daughter of a feeble minded mother” and herself “the mother of an illegitimate feeble minded child,” as he stated the facts from the case record. His opinion reeked of the arrogance of aristocracy, and could easily have been written by Herbert Spencer. “It is better for all the world,” Holmes pontificated, “if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” Comparing forced sterilization with compulsory vaccination, Holmes had a last, callous word for Carrie Buck and her family: “Three generations of imbeciles are enough.”
Five decades later, a journalist who tracked down Carrie Buck and dug into old records discovered that she had been committed to Virginia’s “State Colony for Epileptics and Feeble Minded” only because she had been raped by the eminent doctor who employed her as a housekeeper. Her daughter, Emma, was a perfectly normal child, and the “eugenic expert” who recommended her sterilization was later honored by the German Nazi regime for helping to draft its “Race Hygiene” law, which laid the tracks that ended in the gas chambers of Auschwitz and other death camps. Holmes knew nothing about the scientific fallacies of the ‘eugenic’ movement; more important, he did not feel any duty to look behind the fabricated record in the Buck case…..
….His only significant constitutional opinion, Twinning v. New Jersey in 1908, held that the right against self-incrimination in criminal trials “is not fundamental in due process of law,” a ruling that was finally overruled by the Court in 1964. (Peter Irons “The People’s History of the Supreme Court” 1999 p.252-3)
One fact about the government’s policy toward the “Great War” is clear; once the Wilson administration decided to enter the conflict, it viewed all opposition as “seditious” and even treasonous. Early in 1917, one of Wilson’s closest advisors, Elihu Root-a former war secretary and wall street lawyer-laid down the law: “We must have no criticism now.” A few months later, upset that his words had not been heeded, Root warned that “there are men walking around the streets…tonight who ought to be taken out at sunrise tomorrow and shot for treason.”
The Wilson administration initiated a “private” campaign against its critics that encouraged Americans to spy on their neighbors and fellow workers. The Justice Department sponsored the American Protection League, which by June 1917 had units in six hundred cities and towns and claimed a membership of almost 100,000 “patriotic” citizens. Ignoring the constraints of the Constitution, league members rifled through the mail of suspected “disloyal,” infiltrated private meetings, and recorded speeches at public gatherings. The government’s volunteer spies viewed any criticism of the war effort as a criminal offence. The APA claimed to have uncovered three million cases of disloyalty; the evidence for this dramatic claim, needless to say, was never offered for the public record. (Peter Irons “The People’s History of the Supreme Court” 1999 p.266)
Schenck already had copies of a leaflet the party had been distributing in its antidraft campaign. It was headed “Long Live the Constitution Of The United States” and reprinted the words of the thirteenth Amendment, which abolished slavery and “involuntary servitude.” The leaflet employed what Justice Oliver Wendell Holmes later called “impassioned language” against the draft. “a conscript is little better than a convict,” it read. “He is deprived of his liberty and of his right to think and act as a free man.” The leaflet urged readers to join the party’s campaign to repeal the draft law. “Do not submit to intimidation,” it implored/ “Exercise your rights of free speech, peaceful assemblage and petitioning the government for a redress of grievances. Come to the headquarters of the Socialist Party, 1326 Arch street, and sign a petition to Congress for the repeal of the Conscription Act.”
The first side of the leaflet simply asked readers to sign a petition. Schenck drafted language for the other side, which he headed, “Assert Your Rights!” Justice Holmes later summarized the text: “It stated reasons for alleging that any one violated the constitution when he refused to recognize ‘your right to assert your opposition to the draft’ and went on, 'If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain.'” Holmes continued: “It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves , &c., &c., winding up, 'You must do your share to maintain, support and uphold the rights of the people of this country.'”
…..Judge Hand told one that “man’s destiny is to fight,” and asked another, “doesn’t this squashy sentimentality of a big minority of our people about human life make you puke?” (Peter Irons “The People’s History of the Supreme Court” 1999 p.268-70) Schenck ruling at find law
Eugene Debs Canton speech (Peter Irons “The People’s History of the Supreme Court” 1999 p.272-3)
During the war, an ambitious young clerk in the Justice Department’s Bureau of Investigation named J. Edgar Hoover began compiling lists of actual and alleged “Reds” and soon had files on 200,000 people; federal agents stole membership lists of radical groups and other names came from volunteer spies who reported “subversives” to federal officials…..
The press again cheered the raids. “There is no time to waste on hairsplitting over infringement of liberty,” proclaimed the Washington Post. But the government’s action stirred a small band of “civil libertarians” to protest. The newly formed American Civil Liberties Union, which grew out of groups that defended war protesters and draft resisters, joined the National Popular Government League in publishing a scathing Report upon the Illegal Practices of the United States Department of Justice, documenting many examples of police brutality during the raids, prolonged detention of those arrested without access to counsel or families, and due process violations of the courts. Twelve prominent lawyers, including Zechariah Chaffee and Felix Frankfurter of Harvard Law School, signed the report and condemned the “utterly illegal acts which have been committed by those charged with the highest duty of enforcing the laws.” The ACLU report stunned Attorney General Palmer, who insinuated that his critics were soft on communism. (Peter Irons “The People’s History of the Supreme Court” 1999 p.282-3)
Sanford replied to Holmes “falsely shouting fire” example of unprotected speech with his own metaphor. “A single revolutionary spark may kindle a fire that, smoldering for a time, may burst into a sweeping conflagration,” he wrote. “It cannot be said that the State is acting arbitrarily when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration.” How long might a rhetorical fire “smoulder” before it burst into revolution? Sanford did not say, or even hazard an estimate. His “smouldering test was not tied to the “circumstances” of speech; New York could “extinguish” any revolutionary “utterances” at any time, because it might someday prompt someone to burn down the capital of Albany. (Peter Irons “The People’s History of the Supreme Court” 1999 p.289)
Brandies matched Holmes in the power of his prose. “Fear of serious injury cannot alone justify suppression of free speech and assembly,” he wrote. “Men feared witches and burnt woman. It is the function of speech to free men from the bondage of irrational fears.” Brandies refined Holmes’s “clear and present danger” test in words that underscored the state’s burden in proving that “immediate serious violence” would occur if speech was not suppressed. “If there be time to expose through discussion the falsehood and fallacies” of revolutionary speech, he added, “the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution.”
Although the Four Horsemen joined the De Jonge majority, they all dissented in April 1937 from a decision that reversed the conviction of Angelo Herndon, a black Communist organizer convicted in 1932 of inciting fellow blacks to “insurrection” in Georgia. The state law exposed anyone who attempted “to induce others to join in any combined resistance to the lawful authority of the State” to a death penalty; Herndon’s all white jury had recommended “mercy” and the judge sentenced him to eighteen years in prison. Justice Owen Roberts followed Hughes lead in De Jonge and wrote a narrow opinion in Herndon v. Lawry. Roberts stressed the fact that Herndon’s organizing efforts consisted of holding three meetings for “discussion of relief for the unemployed.” It was clear that Angelo Herndon, like Dirk De Jonge, was arrested solely for being a Communist organizer. Making “membership in a party and solicitation of members for that party a criminal offense, punishable by death,” Roberts wrote, “is an unwarranted invasion of the right of freedom of speech.” But he did not base his opinion on that point, ruling instead that Georgia’s “insurrection” law set no “reasonable ascertainable standard of guilt” and was so “vague and indeterminate” that it violated the Fourteenth Amendment’s Due Process Clause. (Peter Irons “The People’s History of the Supreme Court” 1999 p.291-2)
Epstein’s opponents dismissed as “fanciful” his effort to distinguish the cases. “We have had a depression,” they conceded, but this fact did not justify a minimum wage law; on the contrary, “a depression makes such a law the more harmful and oppressive by increasing the difficulty of the least efficient in securing employment,” Tipaldo’s lawyers warmly embraced the Adkins decision. “A social philosophy in conflict with the fundamental principles of the American Constitution has doubtless gained many adherents since that case was decided,” they granted, “but every argument that can be presented in favor of minimum wage legislation was heard and considered then.”
…Irving Brant, the respected St. Lewis Star-Times editorialist, responded caustically: “Because five is a larger number than four, and for no other reason, the law is unconstitutional…. (Peter Irons “The People’s History of the Supreme Court” 1999 p.309-10)
Hughes turned his guns on the crumbling fortress of laissez-faire doctrine. Those who challenged minimum wage laws, he noted, always claimed they deprived workers of their “freedom of contract.” Hughes posed a rhetorical question and answered for the new majority: “What is this freedom? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law. In prohibiting that deprivation the Constitution does not recognize and absolute and uncontrollable liberty.” The Chief Justice fashioned a modern definition of “liberty” from ancient terms. “Liberty in each of its phases has its history and connotation. But the liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process.” Hughes stated the obvious when he concluded that “the case of Adkins v. Children’s Hospital should be, and it is overturned.”
…The Four Horsemen-all over seventy, and with eighty years on the Court between them- knew they had fought and lost their final judicial battle. (Peter Irons “The People’s History of the Supreme Court” 1999 p.316-7)
….Another advantage of the Freuhauf case was that the company had infiltrated the union with spies from the Pinkerton Detective Agency; this was the kind of “interference with the unions the Wagner Act prohibited.
“We are asked to shut our eyes to the plainest facts of our national life and to deal with the question of direct and indirect effects in an intellectual vacuum,” Hughes wrote of those who read the Commerce Clause through nineteenth-century lenses. “When industries organize themselves on a national scale, making their relation to interstate commerce the dominant factor in their activities,” he asked, “how can it be maintained that their industrial labor relations constitute a forbidden field into which Congress may not enter when it is necessary to protect interstate commerce from paralyzing consequences of industrial war?” (Peter Irons “The People’s History of the Supreme Court” 1999 p.320-2)
Murphy summed up his constitutional philosophy in one sentence: “Only by zealously guarding the rights of the most humble, the most unorthodox and the most despised among us can freedom flourish and endure in our land.” (Peter Irons “The People’s History of the Supreme Court” 1999 p.330)
General DeWitt blamed his lack of evidence against the Japanese Americans on their sneaky nature: “The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken,” he claimed.
…He backed mass internment even though “it would make a tremendous hole in our constitutional system.” Perhaps the most revealing-and cynical-remark came from John J. McCloy, another Harvard lawyer who served as Stimson’s chief deputy. “To a Wall Street lawyer,” he told an army official, “the Constitution is just a piece of paper.” (Peter Irons “The People’s History of the Supreme Court” 1999 p.350-1)
One week before the Court issued its Hirabayashi decision, Justice Felix Frankfurter had referred to his Jewish ancestry in angry response to the overturning of his Gobitis opinion in the Barnette decision. Frankfurter had rejected Justice Frank Murphy’s appeal to avoid “catapulting a personal issue into the arena.” But Frankfurter made his own appeal when Murphy circulated a blistering dissent in Hirabayashi, finding a “melancholy resemblance” between the restrictions on Japanese Americans and “the treatment accorded to members of the Jewish race” in Germany. Frankfurter asked Murphy to consider whether his statement might be read as accusing his colleagues of “playing into the hands of the enemy.” This appeal to wartime unity convinced Murphy to change his dissent to a concurrence, but he retained the comparison of Japanese Americans to German Jews and his conclusion that the military orders approached “the very brink of constitutional power.” (Peter Irons “The People’s History of the Supreme Court” 1999 p.357)
Murphy had withdrawn his Hirabayashi dissent because he did not want to stand alone on the constitutional battlefield. But two of his colleagues stood with him in Korematsu. (Peter Irons “The People’s History of the Supreme Court” 1999 p.360) also covered in his book “War Powers”
Federal judges in Portland and Seattle later vacated the wartime convictions of Min Yasui and Gordon Hirabayashi. Justice Department lawyers had withdrawn an earlier appeal of Judge Patel’s ruling to the Ninth Circuit Court of Appeals, but they pursued an appeal in 1987 of the ruling of Judge Donald Voorhes that granted Hirabayashi’s petition. Government lawyers never revealed their reasons, but me4mbers of the coram nobis legal team suspected that pressure from veterans’ groups on the Reagan administration lay behind this legal about-face. During argument before the Ninth Circuit panel, Judge Mary Schroeder asked Victor Stone why the government had not acted on its own to vacate the convictions. “We didn’t think there was anybody out there who cared,” Stone replied bringing gasps to the courtroom audience…. (Peter Irons “The People’s History of the Supreme Court” 1999 p.363-4)
Margold advised NAACP leaders that “it would be a great mistake to fritter away our limited funds on sporadic attempts to force the making of equal divisions of school funds in the few instances where such attempts might be expected to succeed.” This approach would force civil rights lawyers to file separate lawsuits in each southern school district, to recruit plaintiffs in each district who had the courage and fortitude to face hostility from whites and delays in court, and to perform the laborious task of digging out the facts of school funding disparities in each case. Even if they succeeded, lawsuits to equalize facilities would require judges to act as school superintendents, checking the quality of textbooks, playgrounds, and lavatories. “And we should be leaving untouched the very essence of the existing evils” of segregation, Margold warned. “On the other hand,” he wrote, “ if we boldly challenge the constitutional validity of segregation if and when accomplished irremediably by discrimination, we can strike directly at the most prolific sources of discrimination.” (Peter Irons “The People’s History of the Supreme Court” 1999 p.370)
In 1944, the average yearly expenditure in southern states for black children was $21.40, less than half the $50.14 spent on whites. (Peter Irons “The People’s History of the Supreme Court” 1999 p.372)
Located on the flat plain between the swampy lowlands along the Atlantic coast and the rolling Piedmont hills in the west, Clarendon County in 1947 had some 32,000 residents, more than 70 percent of them black. All but a few black families lived on farms, but few owned the land. They raised cotton and worked as sharecroppers for white owners. More than two thirds of the black families earned less than a thousand dollars each year; more than a third of all blacks over ten could not read or write. Black children attended sixty-one ramshackle schools, most without plumbing or electricity. The county spent $179 for each white child in public school, but only $43 for each black child. (Peter Irons “The People’s History of the Supreme Court” 1999 p.385)
Someone later asked Eisenhower if he had made any mistakes as president. “Yes two,” he replied, “and they are both sitting on the Supreme Court.” Ike referred to Earl Warren and William Brennan. (Peter Irons “The People’s History of the Supreme Court” 1999 p.403)
Fifteen- year- old Elizabeth Eckford did not show up at Daisy Bates’s home. Walking alone, holding her head high, she tried to enter Central High and was turned away by soldiers with bayonets. A menacing crowd surrounded Elizabeth and began yelling, “Get her! Lynch her!” Someone hollered, “Get a rpoe and drag her over to this tree!” Protected by a white NAACP member, she finally escaped the mob on a city bus. (Peter Irons “The People’s History of the Supreme Court” 1999 p.405)
The Weismans returned to court after Deborah’s graduation and won a ruling against further prayer in Providence schools….President Bush endorsed a constitutional amendment to reverse the Courts prayer decision, while his challenger Bill Clinton, opposed the move. Bush sent his solicitor general, Kenneth Starr to support principle Lee at the Court…. Justice Antonin Scalia, another devout Catholic and former altar boy, wrote for the four dissenters and accused the majority of driving a judicial “bulldozer” over American tradition. (Peter Irons “The People’s History of the Supreme Court” 1999 p.413)
Johnson owed his Senate election in 1948 to Fortas, who persuaded the Supreme Court to keep federal judges from opening the ballot boxes into which Johnson’s eighty-seven vote primary victory had been stuffed, which led wags to call him “Landside Lyndon.” (Peter Irons “The People’s History of the Supreme Court” 1999 p.415)
Justice Marshall demanded to know when life begins in Texas. “We say there is life from the moment of impregnation,” Floyd answered. Marshall made Floyd’s life a little more difficult. “And do you have any scientific data to support that?” ….. (Peter Irons “The People’s History of the Supreme Court” 1999 p.439)
Because their elementary and high school educations had generally been inferior, in ghetto or rural schools, minority applicants to medical school were burdened with lower college grades and test scores than whites. (Peter Irons “The People’s History of the Supreme Court” 1999 p.453)
Reagan spoke of the Constitution in reverential words, attributing its genesis to divine inspiration. He called it “a covenant with a Supreme Being to whom our Founding Fathers did constantly appeal for assistance.”….
President Reagan invited Americans in 1987 to look “beyond distinctions of class, race, or national origin” in celebrating the Constitution. “I cannot accept this invitation,” replied Thurgood Marshall, whose grandfather was born into slavery. The first black American to sit on the Supreme Court reminded white Americans that “eloquent objections to the institution of slavery went unheeded” at the Philadelphia convention in 1787, and that the delegates who opposed slavery “eventually consented to a document that laid a foundation for the tragic events that were to follow.” Marshall urged his fellow Americans to “commemorate the suffering, struggle, and sacrifice that triumphed over much that was wrong” with the Framers’ compromises. The clauses in the Constitution that permitted and protected slavery have since been repealed, Marshall noted, “but the credit does not belong to the Framers. It belongs to those who refuse to acquiesce to outdated notions of liberty, justice, and equality, and who strived to better them.” From Marshall’s perspective, “the true miracle was not the birth of the Constitution but its life, a life nurtured through two turbulent centuries of our own making, and embodying much good fortune that was not.” (Peter Irons “The People’s History of the Supreme Court” 1999 p.462-3)
Born into poverty in Pin Point, Georgia, Thomas was raised by his grandfather after both parents abandoned him. Myers Anderson imposed rigid discipline on young Clarence, who still bears a scar from a whipping. His grandfather sent Thomas to Catholic schools, and he remained in them through elementary and high schools, one year of seminary, and college life at Holy Cross in Massachusetts. (Peter Irons “The People’s History of the Supreme Court” 1999 p.475)
Norma McCorvey hid behind the legal mask of “Jane Roe” until 1984, when she revealed her identity as the woman who had helped to secure abortion rights for all American women. The violent reaction when she took off her mask left her shocked and scared. “The first shot woke me up,” she recalled of a terrifying night in her Dallas home. She and her partner, Connie Gonzalez, went to investigate. “The second shot went into our front door. And then there was another sound, another boom, much louder! The living room window exploded inward, in slow motion, like a horror movie. The pieces flew toward us.” The FBI investigated but never found the shooter. (Peter Irons “The People’s History of the Supreme Court” 1999 p.483-4)
http://www.shelfari.com/books/55548/A-Peoples-History-of-the-Supreme-Court
Henry George “Progress and Poverty” 1879 (1953 abridged edition, with modern commentary)
Corp-Focus Robert Weissman
http://victimsoflaw.net/ABAonjudges2.htm
http://www.usconstitution.net/events.html
http://www.scribd.com/doc/19378676/The-Supreme-Court-Nominations-of-Ronald-Reagan
http://chomsky-must-read.blogspot.com/2008/12/washington-connection-and-third-world.html
http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=1935&chapter=118621&layout=html&Itemid=27
Robert Wright “The Moral Animal Why We Are The Way We Are: The New Science of Evolutionary Psychology” 2006
THE BUSIEST MAN IN ENGLAND: GRANT ALLEN AND THE WRITING TRADE, 1875-1900
http://www.e-reading.org.ua/bookreader.php/141435/West_-_Using_Wikis_for_Online_Collaboration.pdf
http://www.e-reading.org.ua/bookreader.php/148583/Sagan_-_The_Dragons_of_Eden___Speculations_on_the_Evolution_of_Human_Intelligence.pdf
http://www.archive.org/stream/lifeofjohnmarsha01beveuoft/lifeofjohnmarsha01beveuoft_djvu.txt
http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=669&chapter=206207&layout=html&Itemid=27 debate on the constitution
On line Library of Liberty
Peter Irons “The History of the Supreme Court” 2003 lectures
“Confrontation, Fidelity, Transformation: The "Fundamentalist" Judicial Persona of Justice Antonin Scalia” Tom Levinson 2006
http://ebookbrowse.com/
http://www.historiansagainstwar.org/
http://www.law.howard.edu/dictator/media/229/how47_1issue.pdf “The white race deems itself to be the dominant race in this country,” he wrote Harlan dissent
Early in 1917, one of Wilson’s closest advisers, former secretary of war Elihu Root, laid down the law: “We must have no criticism now.” (Peter Irons “War Powers: How the Imperial presidency hijacked the constitution” 2005 p.112-7)
A congressional mission to Vietnam in 1953 underscored Washington’s apprehension in the face of the increasing likelihood of a Vietminh victory over France. (Peter Irons “War Powers: How the Imperial presidency hijacked the constitution” 2005 p.182)
With the Vietnam War finally winding down in 1973, federal judges began to reassert their independent role as arbiters of constitutional disputes between the executive and legislative branches of government. (Peter Irons “War Powers: How the Imperial presidency hijacked the constitution” 2005 p.188-9,192-4)
Finally, just three weeks before the August 15 deadline for ending all military operations in Cambodia, a federal judge issued the first injunction against the government, on July 25, 1973….. congress, he said had never authorized the bombing campaign in Cambodia, and had passed legislation on june 26, 1973, cutting off all funds to continue the bombardment. Nixon had promptly vetoed this measure, and Congress enacted the August 15 deadline after failing to override his veto by the necessary two-thirds margin in both chambers. Reading into this record an “implied grant of power” to continue the bombing, Judd reasoned, would in effect require the president to muster “a vote of only one-third plus one of either House in order to conduct a war.” (Peter Irons “War Powers: How the Imperial presidency hijacked the constitution” 2005 p.194)
Unlike the Vietnam War, which provoked more than a dozen lawsuits challenging the constitutionality of both congressional and presidential actions, the Gulf War produced only one significant judicial test of Bush’s decision to commit troops to combat..... The complaint in Dellums v. Bush was based on the Constitution's delegation of war powers to Congress; it did not rely on the War Powers Resolution……
Apparently Bush read the “plain language” of the Constitution very differently from Judge Greene. When he signed the congressional resolution authorizing military action against Iraq, Bush made this statement: “As I made clear to congressional leaders at the outset, my request for congressional support did not, and my signing this resolution does not, constitute any change in the long standing positions of the executive branch on either the President’s constitutional authority to use the armed Forces to defend the vital U.S. interests or the constitutionality of the War Powers resolution.” (Peter Irons “War Powers: How the Imperial presidency hijacked the constitution” 2005 p.208-10)
The Bush administration, however, could not admit that oil was a factor in its war planning. Indeed, Secretary of defense Donald Rumsfeld bristled when he was asked by reporters in November 2002 about the issue. “It has nothing to do with oil, literally nothing to do with oil,” he said. (Peter Irons “War Powers: How the Imperial presidency hijacked the constitution” 2005 p.230)
Nine months after Powell’s statement, Richard Perle, a top Pentagon advisor contradicted him. Perle stated flatly in November 2001 that Iraq “has weapons of Mass destruction.” He made no bones about his desire to launch an invasion on Iraq. “The lesser risk is in pre-emption,” he adde3d, “We’ve got to stop wishing away the problem.” If Powell was confident in asserting that Iraq had no “significant” WMD capability as of February 2001, what prompted Perle and other administration officials to claim that it did? The obvious answer lies in the 9/11 attacks and the decision to depose Hussein. Claiming that Iraq had weapons of mass destruction offered a justification for Perles advocacy of preemptive invasion to prevent the weapons from being used against Iraq’s neighbors.
Perle’s statement did not make a big media splash, but a later speech by Vice President Dick Cheney hit the headlines. “Cheney says Peril of a Nuclear Iraq Justifies Attack,” reported the New York times in a front page story on Aygust 27, 2002. Speaking to a Veterans of Foreign wars convention, Cheney took the hardest line yet of any Bush administration official. “There is no doubt that Saddam Hussein now has weapons of mass destruction,” the vice president said. “There is no doubt he is amassing them to use against our friends, against our allies and against us.” Cheney all but declared war on Iraq. Confronted by a “murderous dictator” whose scientists were rushing to produce nuclear weapons, the United States faced “as grave a threat as can be imagined,” he warned. “The risks of inaction are far greater than the risk of action,” he concluded. A month after Cheney’s hard-line speech, Rumsfeld testified before the House Armed Services Committee. “We do know that the Iraq regime has chemical and biological weapons,” he stated.
The administration’s claims finally reached the top in October 2002, when the president echoed Rumsfeld in telling the press that Iraq “possesses and produces chemical and biological weapons.” Raising another specter in laying the groundwork for the coming invasion, Bush asserted that Iraq “is seeking nuclear weapons.” While stumping around the country that month for republican congressional candidates, the chief executive repeated, at least fifteen times, his certainty that Iraq had WMDs.
With every House seat and one-third of the Senate seats at stake in the November elections, Bush had carefully timed his invasion campaign. On October 2, he submitted to congress a proposed resolution, authorizing him to employ military force against Iraq. The resolution included sweeping claims of the president’s constitutional power, as commander in chief, “to take action in order to deter and prevent acts of international terrorism against the United States, as congress recognized in the joint resolution on authorization for use of Military force,” in 1991, when Congress had given Bush’s father the green light to drive the Iraqi army from Kuwait. Once again, Congress was being asked to authorize the president to begin a war, without formal declaration. Whether such an authorization met the constitutional standard had become a moot point, since Congress had long ago abdicated its war-declaring power to the executive branch.
Although congressional leaders balked at resting the new Iraq resolution on the earlier authorization, the final version provided Bush with all the leeway he claimed as commander in chief. The resolution cited as justification for its blank-check grant of power all three of the president’s repeated charges against the Iraqi regime, including the “brutal repression of its civilian population,” its “capability and willingness to use weapons of mass destruction against other nations and its own people,” and its role in “supporting and harboring terrorist organizations.” The house approved the resolution by a vote of 296 to 133, and the Senate followed with the even greater margin of 77 to 23. Virtually all the house dissenters were Democrats who held safe seats and thus faced little risk of electoral reprisals, while only a single Senate republican, Lincoln Chaffee of Rhode Island, opposed the resolution, which President Bush signed on October 16, 2002.
(Peter Irons “War Powers: How the Imperial presidency hijacked the constitution” 2005 p.233-6)
Congressional record of the US Senate July 17-23 on Google including quotes from Tom Harkin quoting Cheney’s speech at VFW
The most authoritative report on weapons of mass destruction came from David Kay, the chief U.S. weapons inspector and head of the Iraq survey Group. “I’m personally convinced,” he said, “that there were not large stockpiles of newly produced weapons of mass destruction. We don’t find the people, the documents or the physical plants that you would expect to find if the production was going on. I think they gradually reduced stockpiles during the 1990s.”
Perhaps the most telling-chilling- admission on this key issue was made by Paul Wolfowitz, a leading architect of the pre-emptive war doctrine. “For bureaucratic reasons we settled on one issue, weapons of mass destruction, because it was the one reason everyone could agree on,” he later said, without a trace of regret. (Peter Irons “War Powers: How the Imperial presidency hijacked the constitution” 2005 p.238-9)
Thus corporate CEOs take government jobs in the departments responsible for monitoring the very industries the tycoons headed; later, under another administration, perhaps, the recruits to Washington return to their former corporate lairs, where the businesses they now run benefit from the (de)regulating they recently oversaw.
In his farewell address in 1961, President Eisenhower warned the people about the growing influence of the military-industrial complex, but the alarm bells went unheeded by Congress and future presidents. Eisenhower himself named Charles E. Wilson of General Motors to head the defense department; Wilson became famous for saying “What’s good for General Motors is good for the country.” In addition, the defence secretaries who followed Wilson include Robert McNamara, who ran the Ford Motor company; James Schlesinger, a director of Seven Seas Petroleum and the investment firm of Lehman Brothers; and Donald Rumsfeld, former CEO of both worldwide Searle pharmaceutical firm and the general Instrument Corporation, a major defense contractor. The point of this listing, which could be greatly expanded to include other defense and foreign policy positions, is that the president calls upon members of the military-industrial complex, men and women with vested interests in the American Empire, to plan and carry out unilateral, interventionist policies of the Imperial Presidency.
This leads to a further point. Ever since World war II, presidents have commanded a huge defense bureaucracy, which far outstrips, in size and budget, the meager resources available to congress. In 2004, for example, the Defense Department had 636,000 civilian employees and directed a military establishment of 2.3 million troops and support staff, with a total budget of $360 billion. (By comparison, the entire gross domestic product of Russia in 2002- the most recent numbers-was just $347 billion.) the Pentagon building itself houses 23,000 employees, with another 17,000 in various CIA facilities around the world. The recently established Department of Homeland Security has 180,000 employees. Put together, more than 3 million people work in defense-related agencies, from army privates to the secretary of defense. In contrast, Congress has a total budget of $3.6 billion and a total workforce of 30,000 (Peter Irons “War Powers: How the Imperial presidency hijacked the constitution” 2005 p.267)
Given the unlikelihood of change in the near future, those who wish to return the war powers to congress must adopt a long-range strategy one based on the slow, incremental grassroots activism that marked the civil rights movements in its struggle against Jim Crow laws. Decades of patient, often tedious, and sometimes dangerous organizing laid the groundwork for such victories as the Supreme Court’s Brown v. Board of education decision in 1954 and congressional passage of the Civil Rights Act ten years later. (Peter Irons “War Powers: How the Imperial presidency hijacked the constitution” 2005 p.272-3)
Political scientists estimate that no more than 3 to 5 percent of the public takes an active role in issue politics, with the vast majority on the sidelines, some cheering for one side or the other on the playing field, but most not even showing up for the game. (Peter Irons “God On Trial: dispatches from America’s religious battlefields” 2007 p.343-4)
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