The Unconstitutional Evil Which Is the Filibuster

Jan 17, 2025

Clifford Ribner
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It is impossible to overstate how corrupt, corrupting, evil and unconstitutional the Senate’s Filibuster is. I have previously written about it and have not changed my views.

I did not change those views during the Biden administration, but was silent about it because it was terrifying to think of what would happen to the nation if the Filibuster were repealed under the Democrats’ control. As it is, the Democrats have sworn that they will indeed repeal it if they ever again obtain power; so why in the world should the Republicans unilaterally disarm and refuse to repeal it?

But the truth is, it must be repealed for the sake of the nation, for the Rule of Law and the Constitution.

Indeed, as shown below and in my previous article, it is no overstatement to say that the Filibuster is the single most-evil and -corrupt thing in the federal government right now, the unconstitutional linchpin upon which all the other corruption in Washington depends – the singular barrier preventing the elimination of all the destruction of individual liberty, the massive, worthless spending (which is bankrupting us, and which senators pretend – because of the Filibuster! – they are powerless to stop), the promotion of idiotic policies which have nothing to do with the good of the people and, most importantly, the barrier to eliminating all of the horrible rules, supposed “Laws,” bureaucracies and their “Regulations,” which politicians and unelected bureaucrats have imposed on us since 1906, with particularly-increasing rapidity since the 1970s.

First, what is the Filibuster? It is a rule which the Senate has created, supposedly only to govern itself, under its internal operational rule-making power. In fact, it affects everyone in the nation and has become a principal operational feature of our national government. It is far, far more than just some internal housekeeping rule, as the Senate has been pretending it is in order to justify its existence – while demanding obedience to it by everyone.

The fact that everyone else in the nation is affected by, and subject to, it shows that it is not simply something that affects Senate operations, but rather all of us, the entire government.

If it were permitted at all, it would require amending the Constitution itself about a major feature of the nation’s governance, a Constitutional amendment which the Senate, under the Constitution’s Article V, is precluded from doing all on its own.

Secondly, and most importantly, what it does: as just indicated, it makes the general rule for the Senate to do virtually anything require a super-majority of 60 votes, instead of a simple majority, thereby turning the Constitutional legislative process on its head, completely transforming the Constitutional procedure (which, as shown below, the Founders thought about in great detail) for creating all laws – and for repealing them – undoing the liberty-enhancing effects of having our republic.

In the Constitutional Republic which we are supposed to be, the majority of our elected representatives always – except in certain circumstances and only in those circumstances – rules.

The Filibuster changes all that, turning it on its head, by making majority rule, which is supposed to be the general rule for passing – or repealing – anything in the Senate, almost never available – and therefore fundamentally altering our entire legislative branch, requiring that 60 senators, not a simple majority agree to anything, with that simple majority supposed to be all that is required – and demanded – by the Constitution – except in the very-specific circumstances specifically-enumerated and described in the Constitution itself.

What is it that the Senate pretends gives it the power to do this?

The following is all of the language in the Constitution – apart from its specific provisions which do indeed specifically provide for super-majority votes in certain very-limited circumstances (e.g. reversing a veto of legislation by the president) – directly-relevant to this question – whether a majority rule is supposed to be the general rule in the Senate, and whether the Senate acting alone, as it has done, has any power to change that to a super-majority rule, as it has unilaterally done with the Filibuster:

Article I, § 3:

“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

**********

“The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

§ 5:

“Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business

“Each House may determine the Rules of its Proceedings… [Bold added]”

So, in mandating the Filibuster rule, the Senate pretends that it is not amending the Constitution – as it is forbidden unilaterally to do under the explicit provisions of the Constitution’s Article V – but simply implementing a “Rule of its proceedings.”

But that very idea is utterly absurd when one simply looks at the actual consequences of the Filibuster in real life: It affects far more than simply the Senate’s “proceedings,” acting as a massive barrier to implementing the will of the people by the Legislature, with the Filibuster making sure that that actual majority will is defeated by a simple minority whenever that minority/faction chooses to do so, with that additional minority’s support available only when, if at all, it is given extortionate offerings by the actual majority, extortion extracted always at the expense of the people themselves (who else pays all the bills?).

As shown below, the Founders were well-aware of what a super-majority requirement, like the Filibuster, does and how destructive it is – because they had experienced it for passing most things of importance under the Articles of Confederation. Indeed, one of their very purposes in the Constitution was to eliminate that problem, a problem which had, as they knew perfectly-well, paralyzed the nation under the Articles when it needed to act.

The history of the creation of the Filibuster rule, this monstrous requirement, shows how destructive to the Republic it is: if Benedict Arnold, the notorious (though un-convicted) first traitor to America came up with an idea to completely transform how our government operates, in violation of the explicit language of the Constitution itself, in violation of the known intentions of our actual, great and patriotic Founders, including Hamilton and Madison, would that be something we would want? Would we tolerate it for a minute?

As it is, that is precisely what we have been doing in continuing to permit the Senate to retain what is called “The Filibuster.”

As shown in the Constitutional provisions quoted above, the Filibuster, requiring a supermajority for virtually everything the Senate does – and everything, without exception, it undoes – is clearly unconstitutional.

First, the Constitution, in its own words unambiguously gives the Vice-President a tie-breaking vote in case the Senate is evenly deadlocked, “but shall have no Vote, unless they be equally divided [bold added].“ That language means that the Vice-President cannot provide the extra vote needed to obtain a super-majority (when actually required), and would be meaningless if majority rule could be undone and turned into the exception, rather than the general rule, and if, as the Filibuster requires, 60 votes were the norm permitted as a requirement in the Constitution.

Secondly, the Constitution spells out specific instances when a super-majority is indeed required, something that would be superfluous if the Filibuster were legitimate (even though the super-majority votes demanded by the Constitution is 67%, not 60%).

And the Constitution makes clear that each of those instances spelled out in it where super-majorities are required constitute exceptions to the normal rule of majority rule.

And the Constitution specifies that a quorum for doing business is a simple majority –thus precluding by its own terms any super-majority requirements (such as the Filibuster rule) except in those instances when the Constitution itself explicitly requires it.

And note the enormity of the super-majority required by the Filibuster rule: even 59 are not enough!

Clearly the Constitution itself would have to be amended to permit what the Filibuster does – and no such amendment has occurred.

Additionally, and perhaps most-importantly, the Filibuster violates a second fundamental demand of Constitutional legislative-branch rule – that the existing Congress as of any time not be bound by any requirements or demands of previous Congresses who are no longer in office, previous Congresses which are supposed to have lost all their power over the present precisely because they are no longer in office, not permitted to govern the present Congress which is in office: by its very terms the Filibuster prevents a majority of the Senate from repealing any of the legislation which previous Congresses passed; and, even more horrendously: the Filibuster prevents a majority from repealing any of the “regulations” – each with the force of law, with violating them a criminal offense supposedly – created by the unelected, Fourth Branch administrative agencies (all done in violation of the Constitution, which only permits Congress and Congress alone to create any actual laws; as the Constitution unambiguously provides: “All legislative Powers herein granted shall be vested in a Congress [bold added]…”)

In this regard, as even Leftist legal commentators have noticed, Posner & Vermeule, “Legislative Entrenchment: A Reappraisal,” 111 Yale L.J. 1665, 1665–66 (2002), even while themselves (unconvincingly) arguing for the validity of the Filibuster:

“There is a principle of Constitutional law holding that ‘one legislature may not bind the legislative authority of its successors.’ That principle was explicitly recognized by the Supreme Court in United States v. Winstar Corp., 518 U.S. 839, 872 (1996) (citing 1 William Blackstone, Commentaries) [(while deciding the case itself on a different issue)].”

That principle – forbidding what is appropriately – and accurately! – called “the dead hand” of the past from controlling our lives today – that principle of Constitutional law is indeed a necessary ingredient in the (largely-unwritten) English Constitution which antedates our own, unique-in-history, written one – and which, by virtue of the Declaration of Independence, our other Founding Document – is incorporated into our law, by virtue of the 14th Amendment, Allgeyer v. State Of Louisiana, 165 U.S. 578 (1897) – and is one of the truly essential ingredients for us to be, as our Constitution promises us we will be, free, the freest citizens who have ever walked the planet in all of history in any country anywhere – so long as the federal government, itself created by, and with its powers explicitly defined and restricted under, the Constitution, does not violate the Constitution and take our freedom from us – as it has indeed been doing, especially with the Filibuster rule.

Every bit of that unelected, Fourth Branch administrative state is created by legislation enacted by previous Congresses, Congresses populated by people who are no longer in office, Congresses which at least temporarily obtained the 60 votes necessary under the Filibuster to pass that stuff, with all of it created and enacted by people who are no longer in office – and therefore, as even the then-non-conservative Supreme Court recognized in Winstar in 1996, Congresses who are supposed to be powerless over us now, unless the present Congress specifically affirms what they have ratified – something it has never done, with the Filibuster rule making it powerless to undo any and all of that stuff, in violation of that “dead hand” rule.

Under fundamental Constitutional legal principles, we, through our Legislature, are supposed to have the power either affirmatively to accept what those previous Congresses (and the entire administrative state) have given us – or reject any of it – at will.

But now with the Filibuster, it is the Senate and the Senate alone, deploying its Filibuster rule as a weapon against all the citizens, that requirement of 60 votes, instead of the 51 mandated by the Constitution, standing in the way as a supposedly-impenetrable barrier, preventing the repeal of any, let alone all, of that legislation creating – and empowering – those agencies – and all of the “Regulations” that have been passed by all of those (unconstitutional) unelected bureaucratic agencies!

Similarly, past presidents like Joe Biden have taken actions clearly-contrary to the will of the electorate now, actions including announcing, through executive orders, that entire parts of the country – such as virtually all of Alaska, the outer continental shelf, huge portions of the nation – should be off-bounds for development or utilization of any kind by anyone, off-bounds for extracting any of the resources available from those places, with nothing in the Constitution permitting any such action by the president or even by all three branches of the federal government; and yet, there are serious questions under existing law whether anyone, the president, or the Congress (subject to the 60-vote Filibuster requirement), can now undo those actions, even though under the Constitution as written, legislation could be passed by a simple majority of each house of Congress and signed by the president to undo all of that nonsense.

But the Filibuster rule says “No!,” preventing the will of the people from reigning, imposing the dead hand of the past, imposing the defeated (forced out from running for president by his own party!), extremely-unpopular Joe Biden‘s will on us in the present!

Because, as mentioned above, the Filibuster permits a Minority, electorally-rejected by the majority of the nation! without whose permission nothing can pass, to veto the will of the majority. If that minority’s permission cannot be obtained – or purchased with corrupt bargains benefiting the politicians involved at our, the citizens’, expense – by the majority, nothing can pass.

And with that Filibuster rule (unconstitutionally) in place, nothing can be repealed.

That is a direct violation of the requirements of the Constitutional Republic which is what we are supposed to have.

And without that repeal – a repeal undoubtedly desired by a majority of the people, the majority who recently elected President Trump in an Electoral College landslide, together with majorities in each of the two Houses of Congress, including more than a simple majority (but less than 60) of Republicans in the Senate! – and notwithstanding anything DOGE discovers, all of those unelected (unconstitutional) bureaucracies will continue regardless who wins any election, their unelected bureaucrats continuing to rule over us, purely at their discretion, expanding their jurisdiction whenever they feel like it and doing so endlessly, dictating the contents and attributes of every product that is sold – forbidding us from purchasing anything we want without unelected bureaucrats’ approval – in America, including every detail of every product’s manufacture and creation, telling us how to live every detail of our lives, turning the Constitution on its head, undoing the nature of our Republican form of government, turning the entire country into one in which permission from unelected bureaucrats has to be obtained before any citizen can make a move – or risk complete destruction at the hands of those unelected bureaucrats, with those Soviet-type agencies utterly-incapable of being improved or reformed in any way since everything about them is dictatorial and monstrous, with each of them possessing all three powers of government, legislative, judicial and executive, in direct violation of the Constitution – which, as promised in The Federalist # 47 absolutely forbids any part of the government from having all three such powers, since possessing all three such powers is “the very definition of tyranny,” as described by Madison in The Federalist # 47 – the Constitution which only permits three, not four Government branches – and with the president, notwithstanding him being the only one with executive power under the Constitution’s Article II! legally-prevented from firing virtually any of those bureaucrats under previously-passed laws which also cannot be repealed because of the Filibuster.

Many Americans – including, mistakenly and self-defeatingly, Republicans! – have been deluded into thinking that, because it has been there for so long, the Filibuster is some venerable, sacred institution intended to be there by the Founders.

Nothing could be further from the truth.

The Filibuster’s actual, historical origin shows how monstrous and evil it is.

As mentioned and shown above, the Filibuster is not in the Constitution and, indeed, is precluded by the actual words of the Constitution. That is not because of any accident or oversight by the Founders.

It is, indeed, the product of America’s second (after Benedict Arnold) great traitor, Aaron Burr, who was able to trick the Senate into adopting a version of it in 1807 (he had previously been President of the Senate as Vice-President, but no longer held that office), 17 years after the nation’s Constitutional-founding – proposing the Filibuster as a purported simple “rule” change.

Specifically, prior to its existence, majority was the general rule for passing legislation in both the Senate and the House (it remains so in the House) until, at the suggestion of the then-former vice President Aaron Burr, the murderer of the great patriot Alexander Hamilton, during the very time when Burr, as we now know, was in the midst of a seditious plot he had devised attempting massively to betray America, literally to sell-out the country for his own benefit, allied with treasonous officers (including General Wilkinson, the army’s then-commander) in the American military and Spain/Mexico and/or Britain, or both (the plot which he engaged in was so complex and opaque the details of it are still uncertain), and literally to destroy the country, to steal half of it! with the Filibuster a self-defeating weapon of Burr’s against the country, virtually disarming the country in the face of, and as a significant part of, his treasonous plot (which, fortunately, never came to fruition).

Yes, the Filibuster itself, rather than being a venerable part of our founding, was an intrinsic part of Burr’s treason against America!

And he was indeed America’s second, self-serving extreme traitor (no less so than his predecessor in that regard, Benedict Arnold), with his treason trial dismissed only because two witnesses to the treason could not be found, as required in the Constitution Article III’s extremely-narrowed definition of Treason from its previous, Common Law requirements, Burr who, notwithstanding his excellent performance (like Arnold before his treason) as an officer in our Revolutionary army, rather than being considered one of the Founders, should literally be considered an Anti-Founder – yes, exactly like Benedict Arnold.

Burr’s very purpose in promoting the Filibuster for the Senate to adopt was to render the country helpless to defend itself against Burr’s treasonous plot by forcing a super-majority vote for anything to happen to oppose him and his foreign country allies!

So, as to the supposed “venerable pedigree” of the Filibuster, in reality it has no such attribute, and in addition to perpetuating all the corrupt, previously-passed laws and bureaucratic agencies which have been built up over the years, the requirement for a super-majority vote for practically everything makes the Senate, contrary to the interest of the citizens, a self-perpetuating re-election machine for the senators (one of the self-serving reasons why they never want to repeal it), in which, in order to get any legislation passed, members reward each other with so-called log-rolling “pork” to buy the votes (using citizens’ money) necessary to obtain the super-majorities required by the Filibuster, defeating actual majority rule, majority rule being precisely what is supposed to govern in our nation as a republic in virtually all instances.

In reality, the Constitution specifies the very-few, specific instances when a super-majority – which the Filibuster automatically requires except for exceptions senators have carved out for their own convenience – is actually required, with super-majorities supposed to be the exceptions to the rule, not the rule itself, as the Filibuster makes them.

Rather than being, as the senators pretend, a simple, internal housekeeping rule, the Filibuster literally turns the entire Constitutional governance of Congress – and therefore of the nation – on its head.

It converts what should be majority rule (the majority of each house of the elected representatives) to rule by a tiny minority of the Senate, defeating the will of the people at every turn.

As mentioned, the Filibuster was an intrinsic part of Burr’s effort treasonously to disarm the country against his seditious plot, by effectively making it impossible for the Senate to pass anything without corrupt bargain-making among the senators (all at our expense!) – and thereby neutering the country.

As mentioned above, one of the reasons why majority-rule is indeed supposed to be the norm under the Constitution is because, under its predecessor, the Articles of Confederation, a super-majority was indeed required for many important votes, and the Founders discovered that that had had the effect of destroying the power of the country by preventing them from taking necessary actions in the fight against Britain.

It was that same, self-defeating for the nation result which Burr wanted to achieve for the benefit of his plot in promoting the passage of the Filibuster.

Yes, it was precisely to trick the country into emasculating itself against Burr and his co-conspirators, to facilitate their conspiracy’s success, that Burr proposed and argued for the Senate to adopt the Filibuster as a material part of his overall plot not simply to harm the country, but to take half of it from itself and reward it to European nations, with Burr to become its king.

That is the actual origin of the Filibuster which was not put in place until 17 years after the Founding and, as shown above, is permitted nowhere in the Constitution; that is the reality of its supposed “venerable” origin, and why any reference to its purported “venerability” as a justification for its continuation is utterly preposterous, literally the opposite of the truth.

The Filibuster is the reason why, even when a single party – such as the Republicans do now – nominally controls all of the elected offices in Washington and it and the citizens of the country who elected it want not only to enact particular legislation but, even more importantly, want to undo the damaging legislation enacted by previous administrations and Congresses, we are all told that it can’t do so, that it has to follow Senate rules which preclude undoing any of the damage inflicted on us by our predecessors.

Without necessarily being completely-conscious of it, it is indeed the Filibuster and its preclusion of repealing all that prior legislation which is the very reason why the country so detests Congress, giving it a 19% approval rating and 78% disapproval! while having a much more favorable view of their own representatives.

In The Federalist, the Founders went to great pains to justify each of the specific instances in which a super-majority vote of either or both house of Congress is required. See: The Federalist # 62 (going to lengths to justify the particular requirements for a super-majority vote of the Senate both for passing treaties and convicting the president in an impeachment), and # 73 (going to similar lengths to justify the particular requirement for the super-majority vote of the Senate and the House to override a presidential veto of legislation).

That the Filibuster violates the will of the Founders as expressed in the Constitution cannot be doubted, as the words of the Founders themselves prove, proving that they also knew exactly what a super-majority requirement does in reality, and that they unambiguously wanted it to be the exception to the rule, not the general rule itself, as the Filibuster makes it:

“The fundamental maxim of republican government… requires that the sense of the majority should prevail….

“…what [requiring a super-majority] at first sight may seem a remedy, is, in reality, a poison. To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is, in its tendency, to subject the sense of the greater number to that of the lesser…

“The necessity of [more than a majority] in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority…. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. The mistake has proceeded from not attending with due care to the mischiefs that may be occasioned by obstructing the progress of government at certain critical seasons….

“When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.”

The Federalist # 22

Alexander Hamilton

“It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority.”

The Federalist # 75

Alexander Hamilton

“Under the proposed Constitution, the federal acts will take effect without the necessary intervention of the individual States. They will depend merely on the majority of votes in the federal legislature, and consequently each vote, whether proceeding from a larger or smaller State, or a State more or less wealthy or powerful, will have an equal weight and efficacy.”

The Federalist # 54

James Madison

“It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures. But these considerations are outweighed by the inconveniences in the opposite scale.

“In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.”

The Federalist  58

Alexander Hamilton

“Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States.”

The Federalist # 62

James Madison

James Madison similarly wrote:

“the problem to be solved is, not what form of Govt. is perfect, but which of the forms is least imperfect. And here the general question between a Republican Governt. in which the majority rule the minority, and a Govt. in which a lesser number or the least number rule the majority. If the Republican form is, as all of us agree, to be preferred, the final question must be what is the structure of it, that will best guard agst. precipitate Counsels and factious combinations for unjust purposes, without a sacrifice of the fundamental principle of Republicanism….The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS. If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.”

The Federalist #10

James Madison

Accordingly, it cannot be doubted that the Founders were both adamant and unanimous in demanding that the general rule for passing – and repealing – legislation in both the House and the Senate should be by a simple majority, never a super-majority – as the Filibuster requires in virtually every case – except in the very-specific instances specified in the Constitution itself.

Two things must be born in mind in considering government/the state and each citizen’s liberty, with preserving individual liberty being what the Preamble of the Constitution announces as one if its foremost purposes:

(1) Government has one and only one value for the citizens, one and only one purpose and one and only one capability – to alone monopolize violence in society so that individuals are prevented from committing violence against each other, to prevent the law of the jungle from prevailing, the law of the jungle in which might makes right, in which the power to inflict violence (there is a completely different power – the power to please through the exchange of something of value, market power, which the government is completely-incapable of possessing) against others alone of each individual is what rules and, by virtue of that monopolization of violence by the government/State, to permit citizens to live under the Rule of Law – The Rule of Law being the absolute essential starting point for the citizens to have any liberty and for society to prosper.

And

(2) as between the citizen and the state, Power is always a zero-sum game – to the identical extent that the State has it, the citizen doesn’t, and vice-versa. The state can only be empowered to do anything by taking power from the citizens.

Free citizens are willing to do that – to give up their own power (to do harm) voluntarily –if and only if they receive in exchange from the state the Rule of Law (where courts, and courts alone, after due process, punish those who do harm and force the harm-doers – and only the harm-doers – to compensate/reward those whom they harm).

Because of those two facts, when the Senate increases its own power – as it does with the Filibuster rule, giving its members the power to bargain among themselves if they even ever end up passing any legislation the country wants, giving out “Pork” to its members to buy their votes – and for them to buy our votes! – with our money, and otherwise simply withholding its consent to new legislation, or repealing existing legislation, as the country actually wants, standing in the way of the citizens’ will to serve its own ends – it does so at the expense of the citizens. That is an invariable fact.

Yes, with the Filibuster, the Senate has literally unconstitutionally seized power for itself over the rest of us and literally brought the country to a standstill, preventing us from achieving all the liberties that we desire and that we deliberately voted for – particularly what we voted for in the most-recent election, where repealing “the Swamp” was foremost in people’s minds, repeal which is impossible as long as the unconstitutional and monstrous Filibuster remains.

I have previously shown the complete-unconstitutionality, the massive corruption and evil which follows from the Senate retaining the Filibuster rule. I hope this additional essay on this subject puts the matter to rest and shows that its continuation can simply not be justified or tolerated by the citizens on any basis whatsoever. (At a very minimum, if the Republican majority cannot obtain the votes among its own members to repeal the Filibuster entirely, 51 Republican senators should at the very least repeal it for purposes of repealing any existing laws or administratively-created “Regulations.”)


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