Diane Rufino
Nullification vs. Article V Constitutional Convention: where is the honest and open discussion?
By Diane Rufino
When the original 13 states came together to discuss the possibility of establishing a confederacy, at the urging of Benjamin Franklin ("Join or Die"), they did so with a great deal of hope, but also a great deal of trepidation. The hope was that a federal government might be formed that could provide greater security and stability to the colonies. The hope was that it might handle the few issues that were common to all the states but which could not be dealt with by the states individually. The fears, on the other hand, were that this government might come to gain an enormous amount of power; that this power might come to be concentrated in the hands of very few; and that the federal government as a whole might end up overreaching its authority and end up meddling in affairs that ought rightly to be left to the states and the various local governments (if not individuals themselves).
The Constitution created a limited government, which is evidenced in four obvious ways: (1) The Constitution was framed in such a way that the power of the federal government would be split between three separate branches – each acting as a check-and-balance on the power of the others; (2) The power of the federal government as a whole was limited to certain specific areas; (3) Government power structure was split between two co-equal sovereigns – the individual states and the federal government (emphasized or restated by the Tenth Amendment); and (4) A Bill of Rights ("further declaratory statements and restrictive clauses to prevent the government from misconstruing or abusing its powers..") to put further limitations on government power.
For 200 years, this structure has been eroded, always at the hand of the federal government. After numerous overt acts of usurpation, constitutional amendments, and loose interpretations of the Constitution itself, each of the branches of government has managed to seize more power than it was ever meant to have. Now, as we see and feel most acutely, the federal government involves itself in matters that are neither federal in nature nor are subject to its jurisdiction. It insinuates itself into virtually every aspect of public and private life, including political, economic, and social. When we listen to a young mother in Alabama cry because the new healthcare mandate has increased her insurance premiums each month by over $100 and has presented her with a dilemma that is causing her great heartache and distress (she wants to work and do the right thing, but if she does, she can't afford the increase in healthcare premiums, and so she is faced with the choice that puts and her family on welfare), then we understand how destructive the government has become and how far it has strayed from its intended purpose.
Those who support Nullification have put the alert out years ago. They assert that the federal government can rightfully be divested of such unconstitutional power by having the States call the government out on its conduct and refusing to enforce unconstitutional laws. But Nullification is not a term or a concept that the average American has heard before and so it has not been roundly embraced. But it is catching on finally. In fact, support is growing exponentially. As more and more people (Thomas Woods and Mike Church, for example) and groups (The Tenth Amendment Center) educate those who are willing to listen, audiences are finding that it makes sense and is indeed a constitutional and viable remedy.
And then there are others, such as famed radio personality, Mark Levin, who advocate for a different approach. Mr. Levin recently wrote a book entitled "The Liberty Amendments: Restoring the American Republic," in which he proposes what he believes is the ONLY viable solution to restoring constitutional governance, which is an Article V State Convention.
In his book, Mr. Levin writes:
Notice that Mr. Levin writes that "in neither case does the Article V amendment process provide for a constitutional convention." Why would he include that statement? Both conservatives and liberals have routinely referred to an Article V "Convention for proposing Amendments" as a "Constitutional Convention" or Con-Con for well over 30 years, and likely much longer. Is it possible that they ALL have mistakenly assumed that the words "constitutional convention" are found in Article V? Is it possible the government itself is also mistaken? When the Senate Subcommittee on the Constitution of the Committee on the Judiciary held a hearing on November 29, 1979, regarding the role of Congress in calling an Article V convention, the official name of the hearing as published by the Government Printing Office in a 1,372-page document was "Constitutional Convention Procedures." This hearing was held because the number of states petitioning Congress to hold an Article V convention to propose a balanced budget amendment was rapidly approaching the necessary 34 states.
And what about the "populist lovefest," better known as the Harvard Conference on the Constitutional Convention, held at Harvard on September 24-25, 2011, which was cosponsored by the Harvard Law School and (surprisingly) by the Tea Party Patriots as well? Of course, Levin's book "The Liberty Amendments" hadn't been published yet, so the people at Harvard and the Tea Party Patriots didn't realize that they were using a forbidden phrase, "constitutional convention," to refer to an Article V convention.
Perhaps it's worthwhile to take a look at that Conference and watch videos of the various panel discussions to understand why holding a constitutional convention could open Pandora's Box. The host of the Conference, Harvard Professor Lawrence Lessig, and the moderator of the Closing Panel, Richard Parker, both committed populists, advocated for greater democracy in our country. They believe more and more issues should be decided by popular vote. (Parker can trace his political history back to the 1960s organization, Students for a Democratic Society). They believe that holding an Article V constitutional convention will help get them where they want to go.
Perhaps the reason Levin wants to deny the validity of the phrase "constitutional convention" is that one of the most persuasive arguments against holding such a convention is based on the contention, the criticism, and indeed the fear that such a convention could become a "runaway" convention based either on the inherent nature of "constitutional conventions" or on what transpired at our original "Constitutional Convention" in 1787.
How is it that Mr. Levin is convinced that an Article V convention could never become a "runaway" convention? On page 15 of his book he writes: "I was originally skeptical of amending the Constitution by the state convention process. I fretted it could turn into a runaway convention process.... However, today I am a confident and enthusiastic advocate for the process. The text of Article V makes clear that there is a serious check in place. Whether the product of Congress or a convention, a proposed amendment has no effect at all unless 'ratified by the legislatures of three fourths of the several States or by Conventions in three fourths thereof...' This should extinguish anxiety that the state convention process could hijack the Constitution."
So, in this excerpt, Levin admits that he shares the concerns of others that an Article V convention could turn into a "runaway convention." Yet he is confident that he has overcome those concerns with his belief that "Article V makes clear that there is a serious check in place," namely the requirement of ratification of amendments by three-fourths of the states. There are several reasons why Levin should not be so assured that this is a "serious check" in place to stop a runaway convention. Larry Greenley points these reasons out in his article, "Levin's Risky Proposal: A Constitutional Convention":
First, the "ratification by three-fourths of the States" requirement of Article V already has failed to prevent undesirable amendments from being ratified. Consider the 16th Amendment (the federal income tax), the 17th Amendment (direct election of senators), and the 18th Amendment (prohibition). All three were ratified by at least three-fourths of the states, but most constitutionalists would likely agree that all three were bad amendments and should not have been ratified. In particular, many constitutionalists think that changing the method of choosing U.S. senators from appointment by state legislatures to direct election by the voters in each state as provided by the 17th Amendment has been extremely damaging to our constitutional republic. James Madison spoke ever so strongly for this important design feature at the Virginia Ratifying Convention, in his rebuttal of Patrick Henry who accused the Constitution of potentially granting too much power to the federal government. "The deliberations of the members of the Federal House of Representatives, will be directed to the interests of the people of America. As to the other branch, the Senators will be appointed by the State Legislatures, and secures AN ABSOLUTE DEPENDENCE OF THE FORMER ON THE LATTER." The Senate was a direct "federal" element within the very design of the federal government. Its power to refuse to approve a legislative act of the House that is against the reserved powers and interests of States is precisely what the doctrine of Nullification provides.
Second, it is hard to predict just how much pressure the American public can put on state legislators or state convention delegates to get some future undesirable amendment or amendments ratified by the three-fourths rule. We all know what happens when big money and special interests groups send out their tentacles. When big money, special interest groups, and political power pour in to try to influence the delegate-selection process and the convention business itself, the people lose their voice. Experience has shown that we can't trust public servants once they go behind closed doors. We saw what happened with the healthcare bill.
Third, it is quite possible that an Article V constitutional convention would specify some new method of ratification for its proposed amendments. After all, our original Constitutional Convention in 1787, an important precedent for any future constitutional convention, changed the ratification procedure for the new Constitution from the unanimous approval of all 13 state legislatures required by the Articles of Confederation to the approval by 9 state conventions in Article VII of the new Constitution.
But for those who are not quite comforted by Levin's argument that Article V provides the very means to control its convention, he offers still another method to ease our concerns about a runaway convention. On page 16, he quotes from Robert G. Natelson, a former professor of law at the University of Montana: "[An Article V] convention for proposing amendments is a federal convention; it is a creature of the states or, more specifically, of the state legislatures. And it is a limited-purpose convention. It is not designed to set up an entirely new constitution or a new form of government." Too many others, including notable intellectuals, constitutional scholars, and even former US Supreme Court justices beg to disagree on this point.
Many constitutionalists will also agree that Levin is encouraging Americans to play with fire by promoting a constitutional convention. Just because the Constitution authorizes Article V conventions to amend the Constitution doesn't mean that it would be wise at this time in our nation's history to call one.
While pro-Article V convention enthusiasts tell us that this is a great time for an Article V convention because the Republican Party controls 26 of the 50 state legislatures (the Democrats control 18, five are split, and one is non-partisan), and therefore could surely block the ratification of any harmful amendments proposed by an Article V convention, they are omitting from this analysis that very many of the Republican state legislators are not constitutionalists, and could end up in alliance with Democrats to ratify some harmful amendments. Not to mention the likelihood that constitutionalists would be in the minority at the convention for proposing amendments itself.
There is no doubt that Mr. Levin has done his homework with respect to the Article V Convention. But it is clear from the strong and sometimes rabid response to his book that he has not made the case strong enough to quell the legitimate fears of many who believe such a Convention is akin to opening a can of worms. I use the expression because it means: "something that (often unexpectedly) sets in motion that which has unanticipated and wide-reaching consequences." Or as TN Tenth Amendment Center leader Michael Lotfi puts it: "An Article V constitutional convention of the states is not the right answer; it is the bullet to a loaded revolver pointed at the Constitution." Knowing that the Nullification movement is gaining momentum, Levin made it a point, in promoting his book, to try to discredit the "rightful remedy" of Jefferson and the "duty of the states" approach of Madison. He did not do it in a civil, educated manner but rather resorted to referring to Nullification as "idiocy" and Nullifers as "kooks." I imagine that if Thomas Jefferson were listening to Mark Levin's assertion of how to address a government that willingly and defiantly passes unconstitutional laws, he would think he was a "kook."
I would also think that Jefferson would conclude that people who think narrowly, as Levin does in his book and in his commentary to promote his book (including the rejection of nullification) are incapable of saving a republic that is on the brink of imploding.
The only object upon which the Constitution acts is the federal government. It is its playbook; it defines its jurisdiction. It is also its restraining order. Yet each time the government did not wish to be confined by it, it used one of the three branches (most notably the Supreme Court) to reinterpret it and enlarge government powers, regardless that the ONLY way the government can rightfully be altered is by amendments (Article V). The point is that the government has refused to adhere to the limitations set forth in the Constitution.... the limitations that the States demanded and relied upon when debating and deciding whether to relinquish some of their sovereign power and ratify the compact that formed the government. So here is Levin's solution: Even though the Constitution clearly defines the government's powers and sets forth limitations, and even though the government has repeatedly and systematically refused to adhere to those limitations, he believes the only way to limit the government going forward is to make the States go through a series of hurdles (Article V's requirements) in order to try to add a new set of restrictive amendments. Levin himself has pointed out that such a State Convention may not successfully happen and even if it does, it may take up to 20 years or more add such amendments. We can predict what will happen. The government will ignore them or quickly find a way to erode them or get around them. There is no guarantee that the amendments will restore the proper balance of power in government. According to Levin, the parties who have been the victims of the government's usurpations, the States and the People themselves (the rightful depositories or reservations of sovereign power) – have no other recourse or remedy except to take their slim chances with an Article V State Convention, a remedy that has NEVER been used before and hence has no proven record of success. In other words, the States and the People MUST abide strictly by the provisions of the Constitution when the federal government has never done so. Levin stands by his proposition even though the people of the states already have the extra-constitutional right to convene a constitutional convention by virtue of the Declaration of Independence. That's exactly what the Philadelphia Convention was... an exercise of this right (which is referred to as the Theory of Popular Sovereignty), because the Articles of Confederation created a so-called "perpetual Union."
Article XIII of the Articles read: "Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State..... And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual."
The Theory of Popular Sovereignty wasn't just the design of men like Thomas Jefferson (VA), John Adams (MA), Benjamin Franklin (PA), Roger Sherman (CT) and Robert R. Livingston (NY), the committee appointed on June 11, 1776 by the Continental Congress to draft the Declaration of Independence, it was indeed a consensus notion among the whole of our Founding Fathers. Consider for example what Edmund Pendleton, president of the Virginia Ratifying Convention, said to the delegates on June 5, 1788:
Former US Supreme Court Justice Arthur Goldberg addressed the topic of a Constitutional Convention with skeptism back in 1986. He wrote:
Publius writes: "The claims of the nullification deniers have been proven to be false. To persist in those claims – or to do as Levin seems to do and ignore the remedy of nullification – is intellectually and morally indefensible. Instead, they continue to tell us that what we need is a "convention of the States" to propose amendments to the Constitution, and that this is the only way out. They tell us, the only way to deal with a federal government which consistently ignores and tramples over the Constitution is to amend the Constitution! Do you see how silly that is?"
Michael Lotfi, the Associate Director of the Tennessee Tenth Amendment Center, wrote an excellent article comparing the Article V State Convention remedy of Mark Levin to Nullification, the remedy of Thomas Jefferson and James Madison (collectively, the authors of all our foundational documents, except the Articles of Confederation). The article is entitled: Nullification vs. Article V Constitutional Convention: Why Levin is Wrong. (See prior post on this NC TAC site). He wrote: "Calling for a convention to amend the Constitution with amendments shows absence in sound judgment." Further, he wrote: "Levin proposes an Article V constitutional convention of the states as salvation. Not only is an Article V constitutional convention not the right answer, it is the bullet to a loaded revolver pointed at the Constitution."
Lotfi talks about some of the unconstitutional laws, agencies, and actions that the government has imposed over the years – "the NSA, NDAA, ObamaCare, the Patriot Act, EPA, DOE, every war since the 1940s, federal gun laws, etc. These laws and agencies all fly in the face of the Second, Fourth, Fifth, Sixth, Ninth, and Tenth Amendments." He asks how a process that potentially may take as long as 20 years but more likely won't work at all will address these gross usurpations. We must not forget that these amendments were adopted as EXPRESS limitations on the federal government. The Preamble to the Bill of Rights explains it best: "The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."
How is it that the government can find a way to limit the effect of the first ten amendments when those amendments were intended to limit the government and keep those particular objects OFF LIMITS with respect to the federal government?
Mr. Lotfi gives a wonderful explanation of the legitimacy of Nullification. He writes:
Mr. Lotfi hit the nail on the head in his article with respect to Nullification. He addressed what I believe is the most powerful of the opponent's arguments – Madison's remarks following the Nullification crisis of 1832. Most are too uneducated or too shallow in their willingness to read more than a page of history and so they just don't get that Madison was trying to explain that the particular situation wasn't one that can be rightfully addressed by nullification. Nullification, at its core, requires an act by the federal government that exceeds the powers delegated to it under the Constitution. Congress rightfully has the power to legislate regarding tariffs. The Tariffs of 1828 and 1832 (tariffs of abomination) were within Congress's rightful exercise of power. And so nullification was not the proper or rightful remedy to challenge it or to assert as the basis for non-compliance. The real argument was the one that Calhoun originally made, which rested on the Compact Nature of the States. He claimed that when the States came together and drafted the Constitution and then ratified it, they were guided by the concept of social compact. They agreed to give up some of their sovereign power (a "burden," in contract terms) in return for the understanding that the federal government so created (the creature) would be their "common agent" and would serve them equally (the "benefit," in contract terms). Even James Madison, and many of our other founders, acknowledged the compact nature of the Constitution. At the VA Ratifying Convention, Madison prefaced his speech with these words: "A Federal Government is formed for the PROTECTION of its individual members." Calhoun argued that under the compact nature of the Constitution, the common or federal government was supposed to serve all the states equally. The tariff, as you know, benefitted the North exclusively, at great detriment to the South. This unequal treatment of the Southern states is what really led to the secession of the Southern states – not the issue of slavery. Lincoln's election simply meant "more of the same."
Again, as Publius pointed out in her article Mark Levin Refuted: "The claims of the nullification deniers have been proven to be false." The truth, as she brilliantly explains, is that resistance to tyranny is a natural right (the natural right to protect one's sovereign rights) and Nullification is the rightful tool of resistance. Just as resistance is a natural right, nullification is the natural remedy.
Publius is a scholar and is brilliant. Mark Levin is a scholar and is brilliant, as well. The most brilliant men of all are Thomas Jefferson and James Madison, and if you have any doubt of that, then you are all hypocrites for living under the very free society they secured for you. The difference between scholars like Publius and Mr. Levin is which view point they choose to endorse, given their extensive knowledge and understanding. Publius is a scholar of history and of original intent. She understands that the Constitution is not a stand-alone document but is grounded in the principles outlined in the Declaration of Independence and in the doctrine of Social Compact. She is an attorney. Mark Levin is also an attorney and understands history. Unfortunately, he has chosen to ignore some of the background that rounds out the understanding of our founding documents. As we are all aware, there are those who support Mark Levin and those who support those who endorse Nullification. I am troubled that someone as brilliant as Mark Levin can so cavalierly disregard Nullification and resort to the unsophisticated approach of calling those not in his camp a bunch of kooks. This truly troubles me because I believe scholars should be above that and try to promote their points of view through robust discussion and debate. That's how our Founding Fathers did it. And that was the climate at the Philadelphia Convention which produced the final design of our federal government. The one area that debate and discussion could not produce the just result was with respect to slavery. Georgia and South Carolina simply refused to go along if the concession wasn't made. Personally, I don't think one remedy is exclusive over the other; I think the sound approach is finding a way to REPEAL any amendment that increases the power of the federal government and destroys its original design (such as the Sixteenth, Seventeenth, and parts of the Fourteenth amendments) while using NULLIFICATION to frustrate the enforcement of any unconstitutional federal law, policy, or court decision. I think the sound approach is recognizing the POWER that both approaches offer in limiting the power and reach of the federal government (outside its constitutional limits) and using them BOTH for the effective transfer of power back to the People. That's what it's all about, right??
And so, with this article, I want to ask all of you to please put the good of the country first and please find the untainted authorities to educate yourselves on Nullification. Jefferson and Madison are good starts – Read the Kentucky Resolutions of 1798 and 1799 and the Virginia Resolution of 1798, as well as Madison's Virginia's Report of 1800, but most importantly, read the circumstances under which Jefferson and Madison sought to re-assert the compact/founding principles of nullification.... the government was starting to trample on our Bill of Rights!!) Nullification is a good way to hold the federal government at bay while we figure out the best ways to divest the federal government of its liberty-killing powers. There are valid criticisms of an Article V Convention, and I advance that position with the others. If Mark Levin can PROMISE ABSOLUTELY that a group of state delegates can produce amendments that are clearly limited to transparent goals and which will LIMIT the government (and not in fact enlarge its powers, as some states seem inclined to do), then perhaps we should continue our discussion and debate on the Convention. But I don't think he can do so.
As Joe Wolveton II, JD writes: "Enforcing the Constitution and demanding that states stand up to their would-be federal overlords accomplishes the same goal as Levin's proposed con-con without putting the Constitution so close to the shredder that an Article V convention could become."
Mark Levin may have personal popularity, powerful friends in the media, the ability to shut down much of the criticism of his book, and a powerful bully pulpit in his radio show and his guest appearances on the top news outlet, but he doesn't have the same understanding of liberty and its preservation as Thomas Jefferson, James Madison, and our other Founding Fathers had.
Nullification must continue not only to be the remedy of choice, but of right.
"No matter the soothing words and the slate of scholars standing with Levin," Wolverton emphasizes: "the convention they're calling for would be beyond the control of the people or their representatives and could result in the proposal by the assembled delegates of potentially fatal and irreversible alterations to our Constitution that could very well end up being ratified."
References:
Mark Levin, The Liberty Amendments: Restoring the American Republic, New York, N.Y.: Threshold Editions, 2013, 272 pages, hardcover.
Arthur Goldberg (former US Supreme Court Justice), "Steer Clear of Constitutional Convention," Miami Herald, September 14, 1986. http://www.governamerica.com/issues/domestic-issues/21-constitutional-convention?start=10
Joe Wolverton II, JD, "Levin, Limbaugh, Hannity Calling for Con-Con, " The New American, August 22, 2013. http://www.governamerica.com/issues/domestic-issues/21-constitutional-convention?start=10
Larry Greenley, "Levin's Risky Proposal: A Constitutional Convention," The New American, October 27, 2013. http://www.governamerica.com/issues/domestic-issues/21-constitutional-convention?start=10
Michael Lotfi, "Nullification vs. Article V Constitutional Convention: Why Levin is Wrong," The Washington Times, December 27, 2013. http://communities.washingtontimes.com/neighborhood/american-millennial/2013/dec/27/nullification-vs-article-v-constitutional-conventi/
Publius Huldah, "Mark Levin Refuted: Keep the Feds in Check with Nullification, Not Amendments!." https://publiushuldah.wordpress.com/2013/09/15/mark-levin-refuted-keep-the-feds-in-check-with-nullification-not-amendments/
© Diane Rufino
January 7, 2014
When the original 13 states came together to discuss the possibility of establishing a confederacy, at the urging of Benjamin Franklin ("Join or Die"), they did so with a great deal of hope, but also a great deal of trepidation. The hope was that a federal government might be formed that could provide greater security and stability to the colonies. The hope was that it might handle the few issues that were common to all the states but which could not be dealt with by the states individually. The fears, on the other hand, were that this government might come to gain an enormous amount of power; that this power might come to be concentrated in the hands of very few; and that the federal government as a whole might end up overreaching its authority and end up meddling in affairs that ought rightly to be left to the states and the various local governments (if not individuals themselves).
The Constitution created a limited government, which is evidenced in four obvious ways: (1) The Constitution was framed in such a way that the power of the federal government would be split between three separate branches – each acting as a check-and-balance on the power of the others; (2) The power of the federal government as a whole was limited to certain specific areas; (3) Government power structure was split between two co-equal sovereigns – the individual states and the federal government (emphasized or restated by the Tenth Amendment); and (4) A Bill of Rights ("further declaratory statements and restrictive clauses to prevent the government from misconstruing or abusing its powers..") to put further limitations on government power.
For 200 years, this structure has been eroded, always at the hand of the federal government. After numerous overt acts of usurpation, constitutional amendments, and loose interpretations of the Constitution itself, each of the branches of government has managed to seize more power than it was ever meant to have. Now, as we see and feel most acutely, the federal government involves itself in matters that are neither federal in nature nor are subject to its jurisdiction. It insinuates itself into virtually every aspect of public and private life, including political, economic, and social. When we listen to a young mother in Alabama cry because the new healthcare mandate has increased her insurance premiums each month by over $100 and has presented her with a dilemma that is causing her great heartache and distress (she wants to work and do the right thing, but if she does, she can't afford the increase in healthcare premiums, and so she is faced with the choice that puts and her family on welfare), then we understand how destructive the government has become and how far it has strayed from its intended purpose.
Those who support Nullification have put the alert out years ago. They assert that the federal government can rightfully be divested of such unconstitutional power by having the States call the government out on its conduct and refusing to enforce unconstitutional laws. But Nullification is not a term or a concept that the average American has heard before and so it has not been roundly embraced. But it is catching on finally. In fact, support is growing exponentially. As more and more people (Thomas Woods and Mike Church, for example) and groups (The Tenth Amendment Center) educate those who are willing to listen, audiences are finding that it makes sense and is indeed a constitutional and viable remedy.
And then there are others, such as famed radio personality, Mark Levin, who advocate for a different approach. Mr. Levin recently wrote a book entitled "The Liberty Amendments: Restoring the American Republic," in which he proposes what he believes is the ONLY viable solution to restoring constitutional governance, which is an Article V State Convention.
In his book, Mr. Levin writes:
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I undertook this project not because I believe the Constitution, as originally structured, is outdated and outmoded, thereby requiring modernization through amendments, but because of the opposite – that is, the necessity and urgency of restoring constitutional republicanism and preserving the civil society from the growing authoritarianism of a federal Leviathan. The Statists have been successful in their century-long march to disfigure mangle the constitutional order and undo the social compact. To disclaim the Statists' campaign and aims is to imprudently ignore the inventions and schemes hatched and promoted openly by their philosophers, experts, and academics, and the coercive application of their designs on the citizenry by a delusional governing elite. Their handiwork is omnipresent, for all to see – a centralized and consolidated government with a ubiquitous network of laws and rules actively suppressing individual initiative, self-interest, and success in the name of the greater good and on behalf of the larger community. The nation has entered an age of post-constitutional soft tyranny...
Unlike the modern Statist, who defies, ignores, or rewrites the Constitution for the purpose of evasion, I propose that we, the people, take a closer look at the Constitution for our preservation. The Constitution itself provides the means for restoring self-government and averting societal catastrophe in Article V. Article V sets for the two processes for amending the Constitution, the second of which I have emphasized in italics:
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The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths of the several States or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress...."
The fact is that Article V expressly grants state legislatures significant authority to rebalance the constitutional structure for the purpose of restoring our founding principles should the federal government shed its limitations, abandon its original purpose, and grow too powerful, as many delegates in Philadelphia and the state conventions had worried it might. [Levin, pp. 1-13]
Notice that Mr. Levin writes that "in neither case does the Article V amendment process provide for a constitutional convention." Why would he include that statement? Both conservatives and liberals have routinely referred to an Article V "Convention for proposing Amendments" as a "Constitutional Convention" or Con-Con for well over 30 years, and likely much longer. Is it possible that they ALL have mistakenly assumed that the words "constitutional convention" are found in Article V? Is it possible the government itself is also mistaken? When the Senate Subcommittee on the Constitution of the Committee on the Judiciary held a hearing on November 29, 1979, regarding the role of Congress in calling an Article V convention, the official name of the hearing as published by the Government Printing Office in a 1,372-page document was "Constitutional Convention Procedures." This hearing was held because the number of states petitioning Congress to hold an Article V convention to propose a balanced budget amendment was rapidly approaching the necessary 34 states.
And what about the "populist lovefest," better known as the Harvard Conference on the Constitutional Convention, held at Harvard on September 24-25, 2011, which was cosponsored by the Harvard Law School and (surprisingly) by the Tea Party Patriots as well? Of course, Levin's book "The Liberty Amendments" hadn't been published yet, so the people at Harvard and the Tea Party Patriots didn't realize that they were using a forbidden phrase, "constitutional convention," to refer to an Article V convention.
Perhaps it's worthwhile to take a look at that Conference and watch videos of the various panel discussions to understand why holding a constitutional convention could open Pandora's Box. The host of the Conference, Harvard Professor Lawrence Lessig, and the moderator of the Closing Panel, Richard Parker, both committed populists, advocated for greater democracy in our country. They believe more and more issues should be decided by popular vote. (Parker can trace his political history back to the 1960s organization, Students for a Democratic Society). They believe that holding an Article V constitutional convention will help get them where they want to go.
Perhaps the reason Levin wants to deny the validity of the phrase "constitutional convention" is that one of the most persuasive arguments against holding such a convention is based on the contention, the criticism, and indeed the fear that such a convention could become a "runaway" convention based either on the inherent nature of "constitutional conventions" or on what transpired at our original "Constitutional Convention" in 1787.
How is it that Mr. Levin is convinced that an Article V convention could never become a "runaway" convention? On page 15 of his book he writes: "I was originally skeptical of amending the Constitution by the state convention process. I fretted it could turn into a runaway convention process.... However, today I am a confident and enthusiastic advocate for the process. The text of Article V makes clear that there is a serious check in place. Whether the product of Congress or a convention, a proposed amendment has no effect at all unless 'ratified by the legislatures of three fourths of the several States or by Conventions in three fourths thereof...' This should extinguish anxiety that the state convention process could hijack the Constitution."
So, in this excerpt, Levin admits that he shares the concerns of others that an Article V convention could turn into a "runaway convention." Yet he is confident that he has overcome those concerns with his belief that "Article V makes clear that there is a serious check in place," namely the requirement of ratification of amendments by three-fourths of the states. There are several reasons why Levin should not be so assured that this is a "serious check" in place to stop a runaway convention. Larry Greenley points these reasons out in his article, "Levin's Risky Proposal: A Constitutional Convention":
First, the "ratification by three-fourths of the States" requirement of Article V already has failed to prevent undesirable amendments from being ratified. Consider the 16th Amendment (the federal income tax), the 17th Amendment (direct election of senators), and the 18th Amendment (prohibition). All three were ratified by at least three-fourths of the states, but most constitutionalists would likely agree that all three were bad amendments and should not have been ratified. In particular, many constitutionalists think that changing the method of choosing U.S. senators from appointment by state legislatures to direct election by the voters in each state as provided by the 17th Amendment has been extremely damaging to our constitutional republic. James Madison spoke ever so strongly for this important design feature at the Virginia Ratifying Convention, in his rebuttal of Patrick Henry who accused the Constitution of potentially granting too much power to the federal government. "The deliberations of the members of the Federal House of Representatives, will be directed to the interests of the people of America. As to the other branch, the Senators will be appointed by the State Legislatures, and secures AN ABSOLUTE DEPENDENCE OF THE FORMER ON THE LATTER." The Senate was a direct "federal" element within the very design of the federal government. Its power to refuse to approve a legislative act of the House that is against the reserved powers and interests of States is precisely what the doctrine of Nullification provides.
Second, it is hard to predict just how much pressure the American public can put on state legislators or state convention delegates to get some future undesirable amendment or amendments ratified by the three-fourths rule. We all know what happens when big money and special interests groups send out their tentacles. When big money, special interest groups, and political power pour in to try to influence the delegate-selection process and the convention business itself, the people lose their voice. Experience has shown that we can't trust public servants once they go behind closed doors. We saw what happened with the healthcare bill.
Third, it is quite possible that an Article V constitutional convention would specify some new method of ratification for its proposed amendments. After all, our original Constitutional Convention in 1787, an important precedent for any future constitutional convention, changed the ratification procedure for the new Constitution from the unanimous approval of all 13 state legislatures required by the Articles of Confederation to the approval by 9 state conventions in Article VII of the new Constitution.
But for those who are not quite comforted by Levin's argument that Article V provides the very means to control its convention, he offers still another method to ease our concerns about a runaway convention. On page 16, he quotes from Robert G. Natelson, a former professor of law at the University of Montana: "[An Article V] convention for proposing amendments is a federal convention; it is a creature of the states or, more specifically, of the state legislatures. And it is a limited-purpose convention. It is not designed to set up an entirely new constitution or a new form of government." Too many others, including notable intellectuals, constitutional scholars, and even former US Supreme Court justices beg to disagree on this point.
Many constitutionalists will also agree that Levin is encouraging Americans to play with fire by promoting a constitutional convention. Just because the Constitution authorizes Article V conventions to amend the Constitution doesn't mean that it would be wise at this time in our nation's history to call one.
While pro-Article V convention enthusiasts tell us that this is a great time for an Article V convention because the Republican Party controls 26 of the 50 state legislatures (the Democrats control 18, five are split, and one is non-partisan), and therefore could surely block the ratification of any harmful amendments proposed by an Article V convention, they are omitting from this analysis that very many of the Republican state legislators are not constitutionalists, and could end up in alliance with Democrats to ratify some harmful amendments. Not to mention the likelihood that constitutionalists would be in the minority at the convention for proposing amendments itself.
There is no doubt that Mr. Levin has done his homework with respect to the Article V Convention. But it is clear from the strong and sometimes rabid response to his book that he has not made the case strong enough to quell the legitimate fears of many who believe such a Convention is akin to opening a can of worms. I use the expression because it means: "something that (often unexpectedly) sets in motion that which has unanticipated and wide-reaching consequences." Or as TN Tenth Amendment Center leader Michael Lotfi puts it: "An Article V constitutional convention of the states is not the right answer; it is the bullet to a loaded revolver pointed at the Constitution." Knowing that the Nullification movement is gaining momentum, Levin made it a point, in promoting his book, to try to discredit the "rightful remedy" of Jefferson and the "duty of the states" approach of Madison. He did not do it in a civil, educated manner but rather resorted to referring to Nullification as "idiocy" and Nullifers as "kooks." I imagine that if Thomas Jefferson were listening to Mark Levin's assertion of how to address a government that willingly and defiantly passes unconstitutional laws, he would think he was a "kook."
I would also think that Jefferson would conclude that people who think narrowly, as Levin does in his book and in his commentary to promote his book (including the rejection of nullification) are incapable of saving a republic that is on the brink of imploding.
The only object upon which the Constitution acts is the federal government. It is its playbook; it defines its jurisdiction. It is also its restraining order. Yet each time the government did not wish to be confined by it, it used one of the three branches (most notably the Supreme Court) to reinterpret it and enlarge government powers, regardless that the ONLY way the government can rightfully be altered is by amendments (Article V). The point is that the government has refused to adhere to the limitations set forth in the Constitution.... the limitations that the States demanded and relied upon when debating and deciding whether to relinquish some of their sovereign power and ratify the compact that formed the government. So here is Levin's solution: Even though the Constitution clearly defines the government's powers and sets forth limitations, and even though the government has repeatedly and systematically refused to adhere to those limitations, he believes the only way to limit the government going forward is to make the States go through a series of hurdles (Article V's requirements) in order to try to add a new set of restrictive amendments. Levin himself has pointed out that such a State Convention may not successfully happen and even if it does, it may take up to 20 years or more add such amendments. We can predict what will happen. The government will ignore them or quickly find a way to erode them or get around them. There is no guarantee that the amendments will restore the proper balance of power in government. According to Levin, the parties who have been the victims of the government's usurpations, the States and the People themselves (the rightful depositories or reservations of sovereign power) – have no other recourse or remedy except to take their slim chances with an Article V State Convention, a remedy that has NEVER been used before and hence has no proven record of success. In other words, the States and the People MUST abide strictly by the provisions of the Constitution when the federal government has never done so. Levin stands by his proposition even though the people of the states already have the extra-constitutional right to convene a constitutional convention by virtue of the Declaration of Independence. That's exactly what the Philadelphia Convention was... an exercise of this right (which is referred to as the Theory of Popular Sovereignty), because the Articles of Confederation created a so-called "perpetual Union."
Article XIII of the Articles read: "Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State..... And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual."
The Theory of Popular Sovereignty wasn't just the design of men like Thomas Jefferson (VA), John Adams (MA), Benjamin Franklin (PA), Roger Sherman (CT) and Robert R. Livingston (NY), the committee appointed on June 11, 1776 by the Continental Congress to draft the Declaration of Independence, it was indeed a consensus notion among the whole of our Founding Fathers. Consider for example what Edmund Pendleton, president of the Virginia Ratifying Convention, said to the delegates on June 5, 1788:
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We, the people, possessing all power, form a government, such as we think will secure happiness: and suppose, in adopting this plan, we should be mistaken in the end; where is the cause of alarm on that quarter? In the same plan we point out an easy and quiet method of reforming what may be found amiss. No, but, say gentlemen, we have put the introduction of that method in the hands of our servants, who will interrupt it from motives of self-interest. What then?... Who shall dare to resist the people? No, we will assemble in Convention; wholly recall our delegated powers, or reform them so as to prevent such abuse; and punish those servants who have perverted powers, designed for our happiness, to their own emolument.
Former US Supreme Court Justice Arthur Goldberg addressed the topic of a Constitutional Convention with skeptism back in 1986. He wrote:
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As we look forward to celebrating the bicentennial of the Constitution, a few people have asked, "Why not another constitutional convention?"
I would respond by saying that one of the most serious problems Article V poses is a runaway convention. There is no enforceable mechanism to prevent a convention from reporting out wholesale changes to our Constitution and Bill of Rights. Moreover, the absence of any mechanism to ensure representative selection of delegates could put a runaway convention at the hands of single-issue groups whose self-interest may be contrary to our national well-being.
A constitutional convention could lead to sharp confrontations between Congress and the states. For example, Congress may frustrate the states by treating some state convention applications as invalid, or by insisting on particular parliamentary rules for a convention, or by mandating a restricted convention agenda. If a convention did run away, Congress might decline to forward to the states for ratification those proposed amendments not within the convention's original mandate.
History has established that the Philadelphia Convention was a success, but it cannot be denied that it broke every restraint intended to limit its power and agenda. Logic therefore compels one conclusion: Any claim that the Congress could, by statute, limit a convention's agenda is pure speculation, and any attempt at limiting the agenda would almost certainly be unenforceable. It would create a sense of security where none exists, and it would project a false image of unity.
Opposition to a constitutional convention at this point in our history does not indicate a distrust of the American public, but in fact recognizes the potential for mischief. We have all read about the various plans being considered for Constitutional change. Could this nation tolerate the simultaneous consideration of a parliamentary system, returning to the gold standard, gun control, ERA, school prayer, abortion vs. right to life and anti-public interest laws?
As individuals, we may well disagree on the merits of particular issues that would likely be proposed as amendments to the Constitution; however, it is my firm belief that no single issue or combination of issues is so important as to warrant jeopardizing our constitutional system of governance at this point of our history, particularly since Congress and the Supreme Court are empowered to deal with these matters.
James Madison, the father of our Constitution, recognized the perils inherent in a second constitutional convention when he said an Article V national convention would "give greater agitation to the public mind; an election into it would be courted by the most violent partisans on both sides; it would probably consist of the most heterogeneous characters; would be the very focus of that flame which has already heated too many men of all parties; would no doubt contain individuals of insidious views, who under the mask of seeking alterations popular in some parts but inadmissible in other parts of the Union might have a dangerous opportunity of sapping the very foundations of the fabric. Under all of these circumstances, it seems scarcely to be presumable that the deliberations of the body could be conducted in harmony, or terminate in the general good. Having witnessed the difficulties and dangers experienced by the first convention which assembled under every propitious (promising) circumstance, I would tremble for the result of a second."
Let's turn away from this risky business of a convention, and focus on the enduring inspiration of our Constitution.
The bicentennial should be an occasion of celebrating that magnificent document. It is our basic law; our inspiration and hope, the opinion of our minds and spirit; it is our defense and protection, our teacher and our continuous example in the quest for equality, dignity and opportunity for all people in this nation. It is an instrument of practical and viable government and a declaration of faith – faith in the spirit of liberty and freedom.
Publius writes: "The claims of the nullification deniers have been proven to be false. To persist in those claims – or to do as Levin seems to do and ignore the remedy of nullification – is intellectually and morally indefensible. Instead, they continue to tell us that what we need is a "convention of the States" to propose amendments to the Constitution, and that this is the only way out. They tell us, the only way to deal with a federal government which consistently ignores and tramples over the Constitution is to amend the Constitution! Do you see how silly that is?"
Michael Lotfi, the Associate Director of the Tennessee Tenth Amendment Center, wrote an excellent article comparing the Article V State Convention remedy of Mark Levin to Nullification, the remedy of Thomas Jefferson and James Madison (collectively, the authors of all our foundational documents, except the Articles of Confederation). The article is entitled: Nullification vs. Article V Constitutional Convention: Why Levin is Wrong. (See prior post on this NC TAC site). He wrote: "Calling for a convention to amend the Constitution with amendments shows absence in sound judgment." Further, he wrote: "Levin proposes an Article V constitutional convention of the states as salvation. Not only is an Article V constitutional convention not the right answer, it is the bullet to a loaded revolver pointed at the Constitution."
Lotfi talks about some of the unconstitutional laws, agencies, and actions that the government has imposed over the years – "the NSA, NDAA, ObamaCare, the Patriot Act, EPA, DOE, every war since the 1940s, federal gun laws, etc. These laws and agencies all fly in the face of the Second, Fourth, Fifth, Sixth, Ninth, and Tenth Amendments." He asks how a process that potentially may take as long as 20 years but more likely won't work at all will address these gross usurpations. We must not forget that these amendments were adopted as EXPRESS limitations on the federal government. The Preamble to the Bill of Rights explains it best: "The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution."
How is it that the government can find a way to limit the effect of the first ten amendments when those amendments were intended to limit the government and keep those particular objects OFF LIMITS with respect to the federal government?
Mr. Lotfi gives a wonderful explanation of the legitimacy of Nullification. He writes:
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The powers delegated to Congress are few and defined. The Tenth Amendment provides explicit validation for nullification, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" (emphasis added).
In regards to nullification, does the Constitution delegate this power to the federal government? It obviously does not. Does the Constitution explicitly prohibit nullification? It does not. It can now easily be concluded that nullification is a power reserved for the people of their respective states.
The Ninth Amendment expounds even further the right to nullification. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Jefferson explained that nullification was a natural right belonging to the people and their respective states. Because the Constitution does not expressly prohibit nullification, the federal government cannot deny or disparage this natural right of the people.
Mr. Lotfi hit the nail on the head in his article with respect to Nullification. He addressed what I believe is the most powerful of the opponent's arguments – Madison's remarks following the Nullification crisis of 1832. Most are too uneducated or too shallow in their willingness to read more than a page of history and so they just don't get that Madison was trying to explain that the particular situation wasn't one that can be rightfully addressed by nullification. Nullification, at its core, requires an act by the federal government that exceeds the powers delegated to it under the Constitution. Congress rightfully has the power to legislate regarding tariffs. The Tariffs of 1828 and 1832 (tariffs of abomination) were within Congress's rightful exercise of power. And so nullification was not the proper or rightful remedy to challenge it or to assert as the basis for non-compliance. The real argument was the one that Calhoun originally made, which rested on the Compact Nature of the States. He claimed that when the States came together and drafted the Constitution and then ratified it, they were guided by the concept of social compact. They agreed to give up some of their sovereign power (a "burden," in contract terms) in return for the understanding that the federal government so created (the creature) would be their "common agent" and would serve them equally (the "benefit," in contract terms). Even James Madison, and many of our other founders, acknowledged the compact nature of the Constitution. At the VA Ratifying Convention, Madison prefaced his speech with these words: "A Federal Government is formed for the PROTECTION of its individual members." Calhoun argued that under the compact nature of the Constitution, the common or federal government was supposed to serve all the states equally. The tariff, as you know, benefitted the North exclusively, at great detriment to the South. This unequal treatment of the Southern states is what really led to the secession of the Southern states – not the issue of slavery. Lincoln's election simply meant "more of the same."
Again, as Publius pointed out in her article Mark Levin Refuted: "The claims of the nullification deniers have been proven to be false." The truth, as she brilliantly explains, is that resistance to tyranny is a natural right (the natural right to protect one's sovereign rights) and Nullification is the rightful tool of resistance. Just as resistance is a natural right, nullification is the natural remedy.
Publius is a scholar and is brilliant. Mark Levin is a scholar and is brilliant, as well. The most brilliant men of all are Thomas Jefferson and James Madison, and if you have any doubt of that, then you are all hypocrites for living under the very free society they secured for you. The difference between scholars like Publius and Mr. Levin is which view point they choose to endorse, given their extensive knowledge and understanding. Publius is a scholar of history and of original intent. She understands that the Constitution is not a stand-alone document but is grounded in the principles outlined in the Declaration of Independence and in the doctrine of Social Compact. She is an attorney. Mark Levin is also an attorney and understands history. Unfortunately, he has chosen to ignore some of the background that rounds out the understanding of our founding documents. As we are all aware, there are those who support Mark Levin and those who support those who endorse Nullification. I am troubled that someone as brilliant as Mark Levin can so cavalierly disregard Nullification and resort to the unsophisticated approach of calling those not in his camp a bunch of kooks. This truly troubles me because I believe scholars should be above that and try to promote their points of view through robust discussion and debate. That's how our Founding Fathers did it. And that was the climate at the Philadelphia Convention which produced the final design of our federal government. The one area that debate and discussion could not produce the just result was with respect to slavery. Georgia and South Carolina simply refused to go along if the concession wasn't made. Personally, I don't think one remedy is exclusive over the other; I think the sound approach is finding a way to REPEAL any amendment that increases the power of the federal government and destroys its original design (such as the Sixteenth, Seventeenth, and parts of the Fourteenth amendments) while using NULLIFICATION to frustrate the enforcement of any unconstitutional federal law, policy, or court decision. I think the sound approach is recognizing the POWER that both approaches offer in limiting the power and reach of the federal government (outside its constitutional limits) and using them BOTH for the effective transfer of power back to the People. That's what it's all about, right??
And so, with this article, I want to ask all of you to please put the good of the country first and please find the untainted authorities to educate yourselves on Nullification. Jefferson and Madison are good starts – Read the Kentucky Resolutions of 1798 and 1799 and the Virginia Resolution of 1798, as well as Madison's Virginia's Report of 1800, but most importantly, read the circumstances under which Jefferson and Madison sought to re-assert the compact/founding principles of nullification.... the government was starting to trample on our Bill of Rights!!) Nullification is a good way to hold the federal government at bay while we figure out the best ways to divest the federal government of its liberty-killing powers. There are valid criticisms of an Article V Convention, and I advance that position with the others. If Mark Levin can PROMISE ABSOLUTELY that a group of state delegates can produce amendments that are clearly limited to transparent goals and which will LIMIT the government (and not in fact enlarge its powers, as some states seem inclined to do), then perhaps we should continue our discussion and debate on the Convention. But I don't think he can do so.
As Joe Wolveton II, JD writes: "Enforcing the Constitution and demanding that states stand up to their would-be federal overlords accomplishes the same goal as Levin's proposed con-con without putting the Constitution so close to the shredder that an Article V convention could become."
Mark Levin may have personal popularity, powerful friends in the media, the ability to shut down much of the criticism of his book, and a powerful bully pulpit in his radio show and his guest appearances on the top news outlet, but he doesn't have the same understanding of liberty and its preservation as Thomas Jefferson, James Madison, and our other Founding Fathers had.
Nullification must continue not only to be the remedy of choice, but of right.
"No matter the soothing words and the slate of scholars standing with Levin," Wolverton emphasizes: "the convention they're calling for would be beyond the control of the people or their representatives and could result in the proposal by the assembled delegates of potentially fatal and irreversible alterations to our Constitution that could very well end up being ratified."
References:
Mark Levin, The Liberty Amendments: Restoring the American Republic, New York, N.Y.: Threshold Editions, 2013, 272 pages, hardcover.
Arthur Goldberg (former US Supreme Court Justice), "Steer Clear of Constitutional Convention," Miami Herald, September 14, 1986. http://www.governamerica.com/issues/domestic-issues/21-constitutional-convention?start=10
Joe Wolverton II, JD, "Levin, Limbaugh, Hannity Calling for Con-Con, " The New American, August 22, 2013. http://www.governamerica.com/issues/domestic-issues/21-constitutional-convention?start=10
Larry Greenley, "Levin's Risky Proposal: A Constitutional Convention," The New American, October 27, 2013. http://www.governamerica.com/issues/domestic-issues/21-constitutional-convention?start=10
Michael Lotfi, "Nullification vs. Article V Constitutional Convention: Why Levin is Wrong," The Washington Times, December 27, 2013. http://communities.washingtontimes.com/neighborhood/american-millennial/2013/dec/27/nullification-vs-article-v-constitutional-conventi/
Publius Huldah, "Mark Levin Refuted: Keep the Feds in Check with Nullification, Not Amendments!." https://publiushuldah.wordpress.com/2013/09/15/mark-levin-refuted-keep-the-feds-in-check-with-nullification-not-amendments/
© Diane Rufino
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