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The Fundamental Rights of American Citizenship: Neither “Natural” nor Constitutionally “Enumerated”

What are the “privileges and immunities of citizens of the United States”? In the last week, this blog has featured two originalist answers to this question.

According to an “enumerated rights” reading, set forth by Kurt Lash, these “privileges and immunities” consist only in the personal rights found in the text of the Constitution (and chiefly in its first eight amendments). As Mark Pulliam remarked at American Greatness, this textualist approach provides a clear determination of the rights protected, and thus forestalls the activism whereby the judge confuses his “own personal predilections” with bona-fide “constitutional rights.” According to a second interpretation, offered by Devin Watkins, these privileges include not only these enumerated rights, but also various “natural rights” that defy enumeration. Both Lash and Watkins cite as supporting evidence the speech delivered by Jacob Howard at the beginning of the Senate’s debate over the proposed Amendment in spring 1866.

At the risk of further muddying the water, I’d like to contend here that both accounts are mistaken. The most important originalist evidence, including the Amendment’s text and Howard’s speech thereon, strongly indicates that the “privileges and immunities of citizens of the United States” were, strictly speaking, neither “natural” nor constitutionally “enumerated” rights, but as the term suggests, citizenship rights, and more specifically, the rights of American citizenship—the rights recognized and enjoyed by citizens of the United States from the beginning of our Republic.

As the Amendment’s text strongly suggests, these rights are the privileges of United States citizenship. That is, these special rights belong to U.S. citizens qua U.S. citizens. In Howard’s words, the rights belonged to “citizens of the United States, as such, and as distinguished from all other persons not citizens of the United States.” John Bingham likewise told his colleagues in the House that Privileges or Immunities Clause would protect the rights of “all the citizens of the Republic” while the Equal Protection and Due Process Clauses would secure “the inborn rights of every person within its jurisdiction.” Various other prominent participants in the adoption of the Amendment said much the same thing. That summer, Indiana’s Governor explained that the Clause would secure “certain great privileges and immunities” that belonged to the U.S. citizen “as such,” while the Due Process and Equal Protection Clauses would “throw the equal protection of the laws around every person who may be within the jurisdiction of any State, whether citizen or alien . . . not only as to life and liberty, but as to property.”

Senator Howard and Justice Washington Provide a Definition

What are these privileges of “citizens of the United States”? Senator Howard looked first to our Constitution’s text to see (1) that the Constitution presupposed the existence of U.S. citizenship (e.g., the nine-year durational citizenship prerequisite for Senate membership), and (2) that the Constitution, like the Articles, sought to “secure and perpetuate” this citizenry’s unity by guaranteeing the citizens of each state the “privileges and immunities of citizens” in the several States.

For a general definition of these “privileges and immunities of citizens,” Howard then relied on Justice Washington’s famous opinion in Corfield v. Coryell:

[Rights] which are in their nature fundamental, which belong of right to the citizens of all free Governments, and which have at all times been enjoyed by the citizens of the several States which compose this Union from the time of their becoming free, independent, and sovereign.

According to this definition, it seems, the privileges are fundamental in two respects: (1) fundamental to citizenship in any free government, and (2) fundamental to citizenship in the free governments of the American Union from the beginning.

Not Natural Rights

As privileges of citizenship, these rights were not, strictly speaking, “natural” rights, but civil and conventional; the privileges arose from the convention of membership in the American Republic. Hence, for instance, these privileges did not comprehend such inalienable human rights as life, liberty, and pursuit of happiness.

But Watkins contends that Justice Washington included these “natural rights” among these privileges. To do so, Watkins’s relies on an obvious misrepresentation of Washington’s language. After giving his general definition, Washington wrote, in the next sentence, that these “fundamental” privileges may “be all comprehended under the following general heads: protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety.” But Watkins omits Washington’s phrase that the privileges may be “comprehended under” these general heads, and instead substitutes the word “including.” Watkins thereby obfuscates the distinction between natural rights, mentioned as category headings in one sentence, and the privileges of citizenship, partially enumerated in the next. Washington, then, presented these natural rights not as exemplars of privileges of citizenship but as principles under which to categorize these privileges. Only in the following sentence did Washington offer a very partial enumeration of these privileges—including the rights of travel and commerce throughout the several states.

Nor Constitutionally Enumerated Rights

Conversely, pace Lash, these privileges of U.S. citizenship were not rights born from the text of the U.S. Constitution. The convention establishing these civic privileges was not the establishment of the Constitution but the establishment of the United States and the citizenry thereof. After all, the Constitution did not ordain and establish the American people; the American people ordained and established the Constitution.

Hence, as Senator Howard indicated by quoting Justice Washington, the privileges of U.S. Citizenship are as old as the Republic; to find them, we should look back to Year 1 of the United States—or 1776.

Why then, did Senator Howard look to rights listed in constitutional amendments adopted in 1791—the sixteenth year of the “Independence of the United States”? Probably for the same reason he looked to the “privileges and immunities of citizens” of Article IV, as expounded by Justice Washington in 1823. As Howard noted, such constitutional law merely “secured,” “guarantied” or “recognized” pre-existing rights. Such law did not create these rights, but provided very strong evidence thereof. And to identify the fundamental rights of citizenship, severally recognized by the American states from 1776, perhaps the best place to look would be the fundamental rights that the same American states jointly enumerated in the Constitution just a few years later.

Howard’s Selective Enumeration Explained

Still, enumeration in the federal Constitution cannot be the sole evidence. On the one hand, such enumeration may not be necessary, as some fundamental rights (like the rights of travel and reside, and to acquire real as well as personal property) perhaps seemed so obviously fundamental to citizenship and their violation so unlikely, as to be omitted from the Constitution.

On the other hand, such enumeration was not sufficient, for some of the rights listed were fundamental not to citizenship but to universal human dignity, and in some cases did not reflect a multistate American consensus as of 1776. That is to say, some enumerated rights failed to satisfy both parts of Justice Washington’s general definition.

For this reason, Howard proceeded to enumerate only some of the rights set forth in the first eight amendments. As indicated by both the text of his speech, and his prepared notes (recently discovered by Andrew Hyman), Howard carefully listed only certain rights. He included such rights of civic membership as speech, assembly, petition, and arms-bearing as well as various Anglo-American procedural rights that, like the writ of habeas corpus or trial by jury of the defendant’s vicinage, primarily benefited the community’s members—even if such rights were also extended to aliens. Conversely, Howard conspicuously omitted (1) rights that respected basic human dignity or natural rights (such as religious free exercise or the immunity against compulsory self-incrimination), and (2) rights that was not universal to the states from 1776 (such as religious non-establishment and jury trial in civil cases).

Neither the “natural rights” nor “enumerated” rights readings can explain Howard’s selective enumeration.

Defined Rights

Although not enumerated in the Constitution, these fundamental privileges of citizenship were not indeterminate—but defined. According to the formal written report of the Joint Committee on Reconstruction, the Privileges or Immunities Clause, together with the Due Process and Equal Protection Clauses, would “determine the civil rights and privileges of all citizens in all parts of the Republic.” This report is the most important evidence of the Amendments original understanding; drafted by the chairman Senator Fessenden, the report was signed by Howard and all the Republican members of the Committee (save those who were not in Washington upon publication), and very widely praised and reprinted.

The “privileges and immunities,” then, had a determined meaning, even if “enumerate[ing]” these “many” rights might be “tedious” and even “difficult,” as Justice Washington had said, and even if such enumeration could not define the rights in their “precise nature and exact extent,” as Senator Howard claimed.

Unfortunately, neither Justice Washington nor Senator Howard left us a complete list of these determinate and fundamental rights of American citizenship. Still, they left us a sturdy test—one not amenable to judicial activism: to qualify as a “privilege” or “immunity” of U.S. citizenship, the right must be both fundamental to citizenship and enjoyed throughout the United States from the beginning of our Republic. This answer to the question is close to the same answer given by the Supreme Court in Washington v. Glucksburg—but with two important qualifications: the (1) rights must be deeply rooted in our traditions of citizenship, and (2) those traditions must be traceable to a genuine American consensus in 1776.

Reader Discussion

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on March 28, 2019 at 09:00:49 am

The infinite monkey theorem posits that if enough monkeys bang on typewriters long enough, their random hitting of keys will eventually produce the complete works of Shakespeare. So far, all the constitutional law theorists who have tried to unravel the “privileges or immunities” clause have not been able to “solve” the puzzle, at least in a fashion that garners substantial consensus in the academy. We have instead a countless number of different theories, all of which remain disputed. Yet “new” originalists insist that the Slaughter-House Cases were wrongly decided, and scoff at Bork’s assessment that the clause is too enigmatic to decipher—an inkbot. I continue to believe that Bork was correct, and the seemingly infinite number of alternative theories reinforces that conclusion.

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Mark Pulliam
on March 28, 2019 at 09:14:33 am

"This answer to the question is close to the same answer given by the Supreme Court in Washington v. Glucksburg—but with two important qualifications: the (1) rights must be deeply rooted in our traditions of citizenship, and (2) those traditions must be traceable to a genuine American consensus in 1776."

Thank you! That is quite sensible and as I have suggested, let some scholar now review the historical evidence which will help us understand PRECISELY (as best we can) what those P&I were (are).

Also you note that "rights that was not universal to the states from 1776 (such as religious non-establishment and jury trial in civil cases". This would indicate some variance in P&I at the level of the Federal Government and P*I at the State level.

What do we conclude from this?
a) State and Federal P&I are not coextensive
b) If as you rightly assert in the quoted passage, in some instances State P&I is "less" extensive than Federal, what precisely was the P&I Clause of Art IV protecting? at the Federal level? at the State level? It would appear that "non-establishment" is NOT a P&I, contrary to the 1st Amendment (just for arguments sake, here).
c) If State P&I is greater than Federal, i.e. licensing, fees, etc - 1) is this P&I also guaranteed? 2) and to whom? 3) by whom?
d) If the answer to "c3" is the Federal government, then what is the effect upon state Police Powers -1) at the Founding and 2) with ratification of the 14th?

Actual practice, being varied and "variable" may confound theory. Still, I suspect that there is much to be learned from a thorough review of those historical practices as it may enable us to "comprehend" what are the Privileges and Immunities of citizenship and provide a line of demarcation from the cornucopia of divined unenumerated rights.

Lastly, I read Upham to be sitting on the side, perhaps somewhat tentatively, of enumerated rights burnished by
an acceptance of then extant positive rights and longstanding civic practice. All of which would appear at odds with the present fascination with newly divined "mystical" rights.

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gabe
on March 28, 2019 at 09:20:15 am

I am not an academic so forgive my simplicity. First, I believe that Bork's inkblot was the 9th Amendment, not the P&I clause in the 5th or 14th Amendments. Second, the P&I discussion was warped by post-reconstruction bad faith. Also, modern scholars seem to be incapable of leaving their agendas out of the discussion, which is understandable given the important placed on rights in the 20th & 21st Centuries. I am certainly not going to resolve matters in this post, but I would suggest that P&I of citizenship as recognized by courts prior to 1867 would be a good place to start. This would conflate natural rights theory and modern positivist tendencies. The general question might be: What P&I would be necessary for an indivual's freedom to be meaningful, freedom whose protection was the primary reason for the Constitution in the first place? The BoR must be on the list, but would not freedom of contract and legally recognized property ownership be high on the list? In what sense am I free if I cannot deal with my fellow citizens without government interference? What value is my freedom if my just earnings are not recognized? The law is not a cookbook, and these suggestions don't resolve the issues presented, but they establish a place to begin a reasoned debate.

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Ron Johnson
on March 28, 2019 at 09:22:53 am

I share your frustration with the multiplicity of theories and was a few years ago reluctant to add another--and the prudence in letting sleeping clauses lie.

HOWEVER, there are three reasons for my conversion.

1. The Clause isn't any old clause--it refers to the privileges of the American citizenry. To call it an inkblot is to say that our citizenry is some sort of inkblot--unknowable and not worthy knowing.

2. Historically, the obscurity--or the obscuring--of the Clause was an essential step in our nation's atrocious acquiescence in Jim Crow America and partial nullification of the Reconstruction Amendments.

3. The great (partial) restoration of those amendments (via Brown, etc.)--because there was not sturdy Privileges or Immunities Clause to rely on--created the occasion for lots of other crazy stuff.

4. Finally, in reviewing the materials extensively, the evidence is overwhelming that the people who drafted the Amendment, including this Clause, believed that it has a clear and solid purpose. All scholars who spend time with these materials see this confidence and therefore have strong reason to believe that there is some "there" there.

Perhaps I've drunk too much of my own Kool-aid: but I think I've got a handle on this--and am not offering just another theory.

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David Upham
on March 28, 2019 at 09:23:27 am

I think the distinction between civic rights and natural (personal) rights is compelling, in the abstract. The question of religious freedom, to take one example, was, as all here know, front and center in the English Civil War (throughout the whole Reformation really), where it was argued by some to be a kind of natural right and by others to be a civic right subject to varying degrees of state regulation. So the distinction loses some of its intuitive force when brought down to the level of specific rights. And since we are mincing words (of necessity), I would say that it is wrong to call the meaning of P&I "determined," but, at most, "determinable." Even today they have not yet been determined.

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QET
on March 28, 2019 at 09:44:41 am

Thank you very much for reading my piece.

As for the precise relationship between Article IV's privileges and immunities and the federal--the most important thing to realize is that there was no generally agreed upon interpretation of the Clause as of 1866, so there was no original understanding as to how these clauses interacted. For many, the Privileges or Immunities Clause was a mere redundancy, for others, a needed clarification, for others (like Poland), a needed restoration (to correct judicial misconstruction) for others (like Howard) a truly new restriction. Indeed, the ONLY provision of Section 1 that indicates a consensus as to its declaratory or restrictive effect is the Citizenship Clause. All supporters seemed to concur that it was merely declaratory of what was already the law.

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David Upham
on March 28, 2019 at 10:10:25 am

David, thanks for the shout out, the draft of Howard’s speech was an exciting discovery (cited in my article “The Substantive Role of Congress Under the Equal Protection Clause”), and I hope that more such materials will be discovered to provide greater certainty about the original meaning of this clause.

You write that the clause protects from state infringement “the rights recognized and enjoyed by citizens of the United States from the beginning of our Republic.” If, for example, the federal government decides that one of those rights is wrongheaded and decides that said right will no longer be recognized or enjoyed in federal jurisdictions and federal courts, then do you agree Congress can do that as long as saidcright is not enumerated in the Constitution? And, if said right is no longer recognized and enjoyed in federal jurisdictions, then would you agree it is no longer a PI of US citizens?

I worry that judges will decide that US citizens have always had a right to fairness, justice, and wisdom so they will determine crazy things, for example that laws against murdering suicidal people or disabled people are unfair, unjust, and unwise (whereas prior generations were too stupid to realize this now-obvious truth). If Congress has the ability to reject such a crazy right in federal jurisdictions, then your concept of PIs seems much safer and democratic.

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Andrew T. Hyman
on March 28, 2019 at 10:14:44 am

Agreed on the terminology. I rushed in getting it finished.

It was, in fact, the matter of religious freedom that partly has led me to focus heavily on the distinction. I found, throughout our history--apart from the First Amendment--a regular distinction between "civil" and "religious" freedom, with civil rights including rights like speech, press, etc. And then in reviewing the meaning of the "privielges and immunities of citizens," both in Article IV, the frequent inclusion of speech, press, etc., and the very conspicuous omission of religious freedom (as in Howard's speech). The evidence, from our history, and from the adoption and early interpretation of the Amendment seems very strong to me that religious freedom was one of those widely respected human rights that could not and was not called a civil right or a privilege of citizenship.

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David Upham
on March 28, 2019 at 10:17:05 am

Here ate this blog, I wrote about some of this evidence a few weeks ago. https://www.lawliberty.org/2019/02/14/the-court-should-tear-down-everson-not-the-maryland-cross/

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David Upham
on March 28, 2019 at 10:25:19 am

Andrew,

Yes--I do hope other gems like that can be discovered.

As for the federal courts and/or Congress de-certifying some privilege of citizenship--that's one of those matters that probably defies constitutional law--it effectively is more revolutionary than constitutional, and outside the scope of constitutional litigation. It would be as if the President and Senate made a treaty to relinquish several states to another country. Our Constitution presupposes the Union AND presupposes a free citizenry, armed with the rights of travel and commerce--as well as speech--in their own country. So like secession, such action would be unconstitutional in a way, but in a way that is no longer a lawyer's question.

But--thinking out loud here--On the other hand--some of these privileges perhaps are less primordial. If there was no Habeas Corpus clause, Congress could, I think, tweak that judicial procedure., as Anglo-American procedures are deeply embedded but not the sine-qua-non of the American people.

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David Upham
on March 28, 2019 at 10:32:56 am

If that’s your interpretation, then perhaps a more precise formulation might be, “the rights recognized and enjoyed by citizens of the United States from the beginning of our Republic, putting aside changes in modern federal law.” But is that really supported by anything the framers said?

Incidentally, I am one of the few people who strongly suspects that the Comity Clause (PandI Clause) is not completely inapplicable to Congress. Moreover, that clause says you’re entitled to enjoy rights in other states, and to my mind that makes the right to travel an enumerated right applicable to both the states and Congress.

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Andrew T. Hyman
on March 28, 2019 at 10:55:43 am

Well, I think that formally holding religious freedom to be a human right must have been an innovation of the Founders' generation, because it certainly was not so held from 1517 - 1689 as far as I can tell, being one of the causes of the English Civil War, a great issue in the United Provinces and in the German States. Given the extremely close tie, the intertwining, of religion and the civil power in Europe during all this time, given that religion was considered to be a vital matter for the polity, it seems that it was thought of always as a matter of civic right. So I don't deny your statement but think it must have represented an innovation in political thought.

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QET
on March 28, 2019 at 11:21:41 am

More fundamental than incorporation is the issue of the meaning of establishment. That is where an originalist Court needs to go to the root and cut it.

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QET
on March 28, 2019 at 12:28:22 pm

Andrew,

I wouldn't say that: "“the rights recognized and enjoyed by citizens of the United States from the beginning of our Republic, putting aside changes in modern federal law.” Congress has no authority to redefine the privileges and immunities of American citizenship, only enforce them against the states. But what if Congress refused to enforce them against themselves? As you indicate, a plausible constitutional law case could be made from the Privileges AND Immunities Clause. But at some point, the degree of destruction falls outside the limited realm of constitutional law.

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David Upham
on March 28, 2019 at 12:32:36 pm

I did not replace the part of Corfield v. Coryell opinion to obfuscate what he said. Nor, even after looking at what you wrote, do I think it was an "obvious misrepresentation of Washington’s language." The part I ellipsed states:

"What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads..."

He was describing the rights protected rights in general terms, before going to more specifics. Somehow you claim we are to believe he was only using these as "category headings" rather than somewhat vague descriptions? To say they may "be all comprehended under the following general heads" is to say that these are general descriptions of the rights. Some often used examples of protected unenumerated natural rights at the founding included the right to choose to wear a hat, or not, and to choose what time to wake up or go to bed. All of these fall within the general description of a person's right to liberty which is the general head that (somewhat vaguely) describes the rights protected (without being very precise about what rights are protected).

My argument was primarily focused on how Lash's interpretation was incorrect, rather than why this theory is incorrect. This theory suffers other problems.

First, how it gets to this interpretation from the text. The rights of "citizens of the United States" seems to be a clear reference to the federal government in the words "United States." And yet this interpretation would protect a set of rights generally understood as protected by various state governments. It wouldn't matter at all what rights were in the federal constitution, but only what rights were often (but not necessarily always) protected by state governments.

And yet we know from the debates that they specifically called out the first eight federal constitutional amendments as being protected by the clause, even when many of these were NOT protected at the state level previously. Various states had officially established churches, a takings clause, no rights to jury trial in almost all civil cases, no excessive bail clauses. Even today many states have juries with less than 12 people or not requiring unanimity, no grand jury requirements for infamous crimes. Under your interpretation can states today have established churches?

And this doesn't get us to the variety of very fundamental rights which apply to both citizens and non-citizens. The Fourth Amendment applies to non-citizens, would it be protected? Double jeopardy applies to citizens and non-citizens alike, so it is unprotected as well? Likewise the jury trial rights applied to everyone, citizen and non-citizen alike, would they also be unprotected under your definition? The Writ of Habeas Corpus applies to non-citizens, and yet that was specifically mentioned by Senator Howard and Justice Washington.

It is wrong to limit these rights to only those that apply to citizens (rather than non-citizens), instead it is the rights against the federal government that is what he meant. That can be shown by this part of his speech: "it is a fact well worthy of attention that the court of decision in our courts and the present settled doctrine is, that all these immunities, privileges, rights, thus guarantied by the Constitution or recognized by it, are secured to the citizen solely as a citizen of the United States and as a party in their courts. They do not operate in the slightest degree as a restraint upon State legislation. States are not affected by them, and it has been repeatedly held that the restriction contained in the Constitution against the taking of private property for publish use without just compensation is not a restriction upon state legislatures, but applies only to the legislation of Congress."

It is explicitly a contrast between the rights of a citizen against the federal government versus the rights of the citizen against the state government.

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Devin Watkins
on March 28, 2019 at 12:48:59 pm

On this issues, see among many, many sources, all the state constitutional provisions on religious freedom from the Founding until the present, the Continental Congress's Appeal to the Inhabitants of Quebec, and others. http://www.digitalhistory.uh.edu/disp_textbook.cfm?smtID=3&psid=4104

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David Upham
on March 28, 2019 at 13:15:11 pm

Article 94.1 of the Massachusetts Body of Liberties of 1641:

If any man after legal conviction shall have or worship any other god, but the Lord God, he shall be put to death

Some portions of Article 95:

1. All the people of God within this jurisdiction who are not in a church way, and be orthodox in judgement, and not scandalous in life, shall have full liberty to gather themselves into a Church Estate. Provided they do it in a Christian way, with due observation of the rules of Christ revealed in his word.

2. Every Church hath full liberty to exercise all the ordinances of God, according to the rules of scripture.

3. Every Church hath free liberty of election and ordination of all their officers from time to time, provided they be able, pious and orthodox.

4. Every Church hath free liberty of admission, recommendation, dismission, and expulsion, or deposal of their officers, and members, upon due cause, with free exercise of the discipline and censures of Christ according to the rules of his word.

Here is Article III of the Massachusetts State Constitution of 1780:

As the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion, and morality, and as these cannot be generally diffused through a community but by the institution of the public worship of God and of the public instructions in piety, religion, and morality: Therefore, To promote their happiness and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies-politic or religious societies to make suitable provision, at their own expense, for the institution of the public worship of God and for the support and maintenance of public Protestant teachers of piety, religion, and morality in all cases where such provision shall not be made voluntarily.

And the people of this commonwealth have also a right to, and do, invest their legislature with authority to enjoin upon all the subject an attendance upon the instructions of the public teachers aforesaid, at stated times and seasons, if there be any on whose instructions they can conscientiously and conveniently attend.

Even in the Revolutionary Era, the issue of religion is still closely bound up with civic concerns and subject to civil regulation. My sole point being that, though Howard may have left freedom of religion off of his list of citizenship rights, I don't think that was necessarily because it was conceived as a fundamental human right, per natural law or otherwise.

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QET
on March 28, 2019 at 14:41:53 pm

What is the citation for "The Substantive Role of Congress Under the Equal Protection Clause"? Thanks.

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EDWARD ERLER
on March 28, 2019 at 14:58:50 pm

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2468984

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Devin Watkins
on March 28, 2019 at 15:29:26 pm

David Upham:

You write:

According to the formal written report of the Joint Committee on Reconstruction, the Privileges or Immunities Clause, together with the Due Process and Equal Protection Clauses, would “determine the civil rights and privileges of all citizens in all parts of the Republic.”

This would be a very interesting document for anyone doing research on the 14th Amendment to consult, as I am currently. Could you provide a link to it online, or source where it is published (preferably a source accessible to someone not affiliated with a university)?

I would be very grateful.

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Rob Zrabkowski
on March 28, 2019 at 15:54:00 pm

"the rights recognized and enjoyed by citizens of the United States from the beginning of our Republic"

Of course some rights may not have been enumerated because no one had yet tried to infringe them. People may not have thought of clothing choice as a right because there were no dress codes or laws at the time. People may not have thought of a right to hunt and fish because people weren't trying to prohibit those things, like how alcohol prohibition was long after the founding.

We often don't think of something as a right until people try to invade it. A woman may not think of "sexual and reproductive rights" until someone arrests for for having sex or getting an abortion. That doesn't mean she didn't think she had the right until then, only that she didn't need to think of it as a right yet because no one had persecuted her for it until then.

You wouldn't think of a 5-day work week if you never had a boss that forced you to work more than five days, or an 8-hour workday if you'd never been forced to work more than 8 hours.

Experience tells us what does and doesn't count as oppression. In your life, have you not elevated something to a right as an adult that you didn't think of as a right as a child?

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Plebius
on March 28, 2019 at 16:08:45 pm

"the rights recognized and enjoyed by citizens of the United States from the beginning of our Republic"

Let's say no one tried to implement waiting periods until after long after the founding, so no founder thought to state that rights are on-demand and people have a right not to submit to a waiting period. Does that mean there is no such right not to have to submit to a waiting period?

What if no founder said there was a right to perform medical procedures or wear medical devices, because no one had yet thought to outlaw vaccines, or cancer therapy, or wearing prosthetic legs in public. Does that mean people can outlaw such things? Is the government's oppression absolute and unyielding? Can The Bartender really say "I can't find a law against, therefore I can imprison you for it" ?

Did those who outlawed slavery really envision a society in which the government can regulate each and every aspect of your life and behavior, and prohibit anything the light of the sun touches?

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Brotius
on March 28, 2019 at 16:43:33 pm

http://hdl.handle.net/2027/uc2.ark:/13960/fk3tt4fz9s

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Andrew T. Hyman
on March 28, 2019 at 16:48:39 pm

FYI, this report was published in 1866, after Congress had already approved the 14th Amendment, but before the states approved it. The quote you point to suggests that the "civil rights and privileges" they were referring to were already determined in federal jurisdictions like the territories and Washington D.C. After all, section One of the 14th Amendment only applies against the states.

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Andrew T. Hyman
on March 28, 2019 at 16:55:33 pm

Thank you - very helpful!

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Rob Zrabkowski
on March 28, 2019 at 17:15:34 pm

QET: Roger Williams (Rhode Island) and Quaker PA (to a lesser extent) were arguably "proto-Enlightenment" in the sense that during the Enlightenment period of the American founding, religious liberty for all (including non-Christians) became a normative ideal. At least and especially at the federal level.

Rhode Island was more of an innovator and an outlier. But Williams' vision ended up prevailing over that of the Puritans in Mass. who kicked him out of the state to found Rhode Island for questioning their ideal of a "Christian commonwealth" that executed people for religious incorrectness.

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Jonathan Rowe
on March 28, 2019 at 17:21:51 pm

I also thank you.

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gabe
on March 29, 2019 at 07:54:12 am

Please do excuse me for suggesting that the obfuscation was a matter of intent rather than effect. I think the text can be read as you read it, but it seems to me better to say that the first sentence provides rule of categorization, while the second a partial enumeration of the privileges of citizenship.

A few others points in response.

"The rights of “citizens of the United States” seems to be a clear reference to the federal government in the words “United States.” " That was the premise of Slaughter-House--and I think at the heart of Lash's interpretation. I think it does violence to the text of our Constitution as well as so much of the evidence in the adoption of the Amendment.

Man (human being) is anterior to the state--I think and hope that may be a point of common agreement.

But what is necessary here--in construing a privileges of citizenship clause, is to have an account of citizenship.

Man is prior to the citizen--and by nature and by the text of our Constitution--the citizen is prior to the government. The privileges of American citizenship are anterior to the mere government of the United States.

As to why speak with the qualifier "of the United States"--not obvious from Howard's speech--but the reason can be found elsewhere--to exclude the suffrage.

I'll respond to your other points later.

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David Upham
on March 29, 2019 at 10:25:41 am

For any who might be reading: here are a few quotes I've assembled (in my ongoing project) to corroborate what I think is suggested by the text and Howard's speech as to (1) the fundamental axiomatic character of these privileges--not dependent on the existence of the Congress of the United States:, and (2) that these are the privileges of citizenship

1. FUNDAMENTAL--not made by government of the United States

As Senator Henderson points out, the provisions defining eligibility for election to the House and Senate “show that such a thing as United States citizenship existed at and prior to the time when the Constitution was adopted.”

*OH Governor—immunities protected are “of the very essence of free government.”.

**Ill. Governor: could have “with great propriety” have always been asserted in the Constitution—including every “right declared,” or “the civil rights [that] citizenship confers.” Goal is “to restore and re-establish the government upon the basis of the indivisibility of the Union, the supreme authority of its laws, and the equal liberty of all citizens in every State of the Union.”

IN governor: these “facts” or “principles are the “cardinal principles of Reconstruction”

IN governor campaign speech “does not confer new privileges”

Gov. Curtin of Pa (Summer 1866): “That all persons, of whatsoever class, condition, or color, should equal in civil rights before the law, is demanded by the very form of our government.”
PA governor: with reference to the Citizenship and Privileges or Immunities Clauses: “principles which were never seriously doubted anywhere, until after the insane crusade in favor of slavery,” so that it’s now “expedient and proper to re-assert these vital principles in an authoritative manner”

MA Gov: “cardinal principle of a republican government” and “an axiom of free government’”

NE GOV in 1866: “reaffirm on our Constitution the fundamental principles enunciated in the Declaration of Independence, that all men are created free and equal.”

NE GOV 1867L Sec. 1 “accepts fully and forever vindicates…the idea that was the corner-stone of American independence”

NJ Governor Ward—contra rescission resolution: whole Amendment “fitted to promote the great objects which the Constitution was formed and intended to secure”

NC Governor (1868): 39th Congress, in proposing Amendment has “proceeded upon principles which have their basis in the rights of man” so as “to render them safe for the future in the hands of the people of the respective States.”

Representative Thayer: “provision….so necessary for the protection of the fundamental rights of citizenship, shall be forever incorporated in the Constitution…”upon which the Union is based.”

Speaker Colfax—Indianapolis speech: Section 1 “is the Declaration of Independence placed immutably and forever in our Constitution….that baptismal vow that our fathers took upon their lips when this Republic of ours was born into the family of nations

Indiana Governor campaign speech: “fundamental principles upon which the Union is based.”

General Schenck at Dayton: “a declaration of those principles of liberty and equality which were understood to be in the Constitution, though no such amendment in this form existed.”

General John P.C. Shanks—campaign speeches—all of section 1 “natural rights—their lives, liberty and property”—to “every man, woman and child in the United States the protection of life, liberty and property. It declares them to be ‘citizens of the United States,’ and on that basis and that alone, assures that the shall be protecte4d in the national rights.”

*Governor Morton, at New Albany, IN: the rights of U.S. citizenship: “to enjoy civil rights, and to go into any all the States and there acquire citizenship, and enjoy such political rights, in addition to civil, as the State may confer on their citizens…” [by implication NOT the civil rights conferred by local law]

2. RIGHTS OF CITIZENSHIP

LA Governor (1867): : “adjusting and settling…the rights of citizenship to all persons without regard to race or color.”

Henderson in Senate: the P or I and Due Process-Equal Protection Clauses “merely secure the rights that attach to citizenship in all free Governments.”

Ohio editorial 1868 “the privileges and immunities that attach to, and are inseparable from citizenship.”

Union League of PA: “rights of citizenship” to persons born or naturalized in the US “and equal protection to all in the possession and enjoyment of life, liberty and property.”

Chicago Tribune: “American Citizenship” editorial: “The proposed provision making citizen ship uniform, carries with it no political rights. [settles beyond] question the legal or civil status of the ' whole people upon a common equality, and ] takes from local prejudice and passion the power to oppress or harass any citizen, by denying to him his rights as such.”

NY Times 1867 With reference to Privileges or Immunities Clause “It relates wholly to civil rights to an equality of rights before the law. It prohibits a State from making laws which shall ‘abridge the privileges and immunities’ belonging to citizens as citizens of the United States. But the privilege of voting is not among them”

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David Upham
on March 29, 2019 at 10:37:32 am

1. On the non-incorporation of the religion clauses against the states, besides the obvious and deliberate omission of them by Jacob Howard--whose speech is the chief and best evidence for incorporationist reading, I've been doing a deep dive--the initial results of which I published here: I think the evidence is overwhelming. https://www.lawliberty.org/2019/02/14/the-court-should-tear-down-everson-not-the-maryland-cross/

And as I've argued, these provisions, especially nonestablishment, satisfy neither of the parts of the Corfield test. Nonestablishment was a consensus as of 1868 (and more or less by the 1830s), but it was not a privilege of citizenship, nor was it foundational to our Republic, as the Founders disagreed on the principle, with some states retaining mild establishments, and others rejecting them.

2. On the procedural rights--habeas corpus (mentioned by Howard via Corifield) and others, I've wrestled with this for years--as these privileges, for the most part (1) were enjoyed by aliens equally with citizens AND (2) served to secure natural rights of person and property. So why are they mentioned--not just here but in other places. I think--right now--the answer is the history, scope, and purpose of these kinds of procedural safeguards, unlike the right against compulsory self-incrimination, or excessive fines, or the others he omits, is they protect the individual--in part--precisely in his relation to his own community. On the communal nature and effect of habeas corpus, see Blackstone, as quoted by Hamilton in Federalist 84.

To go through the whole list of the Bill of Rights, to explain Howard's selections, would be both tedious and difficult!

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David Upham
on March 29, 2019 at 10:40:01 am

The fact that something is not a privilege of American citizenship does not mean there are not good and compelling reasons--both as a matter of justice and prudence--to prohibit the making or enforcing of a law. Those reasons might--by force of other provisions of our Constitution also represent a federal constitutional prohibition.

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David Upham
on March 29, 2019 at 10:43:05 am

Andrew,

Perhaps I'm repeating myself--but what I think the evidence compels is the conclusion that federal law does not create the privileges of U.S. citizenship. Federal law is a good place to look to see what has been recognized, established--as Howard does by looking to the law made via the First 8 Amendments. But such law is not the SOURCE of the rights. American citizenship itself has its privileges, as Senator Trumbull said in defending the Civil Rights Act--and as Justice Bradley said in dissent in Slaughter-House.

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David Upham
on March 29, 2019 at 10:50:23 am

The Founders seemingly universally agreed as to the right of all human beings--as such--to worship their Creator according to the dictates of their own consciences. This is expressly stated, for instance in Article II of the Massachusetts Constitution.

What the Founders did not agree on was significant. Did that fundamental right, fully elaborated and protected preclude (1) compulsory taxation to support religious establishments OR (2) rules restricting certain high offices to citizens based on religious belief? Both of these questions divided the Founders and were--for the most part--resolved one way by the mid-19th century.

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David Upham
on March 29, 2019 at 11:36:41 am

David:

I must take this opportunity to thank you for the very high level of "engagement" (no, not Barnett's type) you have displayed with the readers / commenters of this blog. I find it admirable AND somewhat rare.

This has been a very informative and lively discussion - made all the more so by your willingness to respond and provide "proofs' (such as they can be proofs) of your positions ./ thinking.

Again, many thanks for those efforts.

take care
gabe

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gabe
on March 29, 2019 at 14:15:17 pm

Thank you for these quotes. Some of which, I think, support my view of the interpretation of the clause. Definitely something I will look at closer in the future when I return to this clause.

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Devin Watkin
on March 29, 2019 at 14:17:06 pm
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Devin Watkin
on March 29, 2019 at 14:32:32 pm

You really don't know what you're talking about. RI was pretty much a failed state remarkably only for its disorder, smuggling and involvement in the slave trade until well after the Revolution. Williams, himself, ejected Quakers in the 1640s when the Quakers were the equivalent of our contemporary SJWs.

Penn's Pennsylvania had the same type of charter as Maryland; it was a proprietary and religious colony created by Charles II chiefly to annoy Parliament and to satisfy an old debt. The Quaker strangle hold on the state was broken in 1781 when the non-Quaker settlers displaced the Penn proprietors and created a revolutionary uni-cameral legislature that scared the hell out of the Federalists.

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EK
on March 29, 2019 at 20:16:41 pm

EK: Let us ignore the Quakers. Your point on RI is inapt. The prevailing view at the time was the theocratic Christian commonwealth represented by the MASS body of liberties.

Rhode Island was the great experiment in religious liberty for all and no religious tests for state office. At least in principle.

Later during the time of the Enlightenment, America's founders held similar views as Williams' , at least as an ideal (it wasn't always realized at the state level).

I think most scholars who are informed on this issue, regardless of their political inclinations, would agree here.

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Jonathan Rowe
on March 29, 2019 at 20:28:44 pm

But on the Quakers, see Thomas Kidd's point.

"When Penn founded Pennsylvania, it joined Roger Williams’ Rhode Island as the second American colony that offered liberty of conscience to all with no established, tax-supported church. "

https://www.patheos.com/blogs/anxiousbench/2014/04/the-quaker-contribution-to-religious-liberty/

Perhaps you need to rethink and reframe your position on this historical nuance.

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Jonathan Rowe
on March 29, 2019 at 21:06:47 pm

"What the Founders did not agree on was significant. Did that fundamental right, fully elaborated and protected preclude (1) compulsory taxation to support religious establishments OR (2) rules restricting certain high offices to citizens based on religious belief? Both of these questions divided the Founders and were–for the most part–resolved one way by the mid-19th century."

David: I know you can make the argument that religious establishments were meant to be left to the states. Founders like J. Adams, Patrick Henry, and Washington himself (perhaps) could be quoted on behalf of supporting mild establishments, consistent with liberty of conscience.

However, can you name ANY notable Founder who has anything good to say on religious tests that would exclude non-Christians or "not the right kind of Christians" from public office (at the state level of course)?

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Jonathan Rowe
on March 31, 2019 at 01:50:02 am

Upham’s essay illustrates a commonality of proprietary scholarship: well accepted error. Religion seems to justify the errors. Religion distracts citizens from developing integrity, a practice.

First, a writer needs scholarly propriety to assert “U.S. citizenship . . . right must be both fundamental to citizenship and enjoyed throughout the United States from the beginning of our Republic . . . with two important qualifications: the (1) rights must be deeply rooted in our traditions of citizenship, and (2) those traditions must be traceable to a genuine American consensus in 1776.”

There are many problems in the above assertion.

First, in 1776, there was a confederation of thirteen eastern seaboard British colonies north of Florida and Louisiana. The thirteen colonies ratified England’s treaty that they were thirteen free and independent states on January 14, 1784. The territories west of the Mississippi River and South of Georgia were not of the confederation.

Nine of the thirteen states established the U.S. republic on June 21, 1788, and the USA began operating with only eleven states on March 4, 1789. The first Congress egregiously re-established colonial British tradition in the eastern seaboard. But again, throughout the rest of the continent Spanish, French, Mexican, Russian, and other rule prevailed.

I have not the propriety to claim “a genuine American consensus in 1776” and would not attempt to acquire it. In 1776, the slaves did not consent. Of the free citizens, 40% were rebellious, 40% passive, and 20% loyalists. By 1789, perhaps 5% of free citizens could vote. People in territories beyond the British colonies did not consent.

But the main objection I have is the obfuscation of the civic, civil, and legal powers of the U.S. preamble. By the most difficult imaginable path, the USA is on the march toward conformance to the proposition stated in the preamble.

The essence of the proposition seems: willing fellow citizens in their states collaborate to provide Union, Justice, Tranquility, defense, and welfare so as to secure human liberty for current and future citizens including dissidents to justice, who need reform. The articles that follow provide the laws and institutions by which disciplined citizens manage local, state, and federal governments so as to discover and practice the statutory justice that is required to conform to the U.S. preamble.

The U.S. preamble treats religion as a private pursuit within human liberty. Fellow citizens do not collaborate on choosing theism or not. Within theism, many people accept whatever-God-is while claiming a personal God. The First Amendment erroneously imposes religion, an institution, rather than securing individual opportunity to develop integrity within a lifetime. In other words, the First Amendment’s religion clauses contradicts the liberty proposed by the U.S. preamble. Plainly, separation of church and state is an empty, proprietary slogan.
After 230 years of suppression, it is time to restore the U.S. preamble’s civic, civil, and legal powers. One aspect is putting religion in its proper place: in individual privacy. Only We the People of the United States, by informed voting, can establish the USA under the U.S. preamble.

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PHILLIP BEAVER
on March 31, 2019 at 15:03:38 pm

Jon,

Short answer--every Founder who put their signature on, or otherwise endorsed a state constitution that incorporated these tests provided strong evidence of a preference for such tests. I have not, however, done a deep dive to look at debate for--and against--and I'm only familiar with the criticisms.

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David Upham
on March 31, 2019 at 16:04:52 pm

The evidence for an American consensus does not depend much upon popular suffrage at the time. Even with its broader availability, I don't think it's the all-important evidence of popular choice today. Then, and now, the consensus can be found in (1) what is generally expressly affirmed without any evidence of major dissent, (2) what is tacitly affirmed as a matter of agreement from which disagreements proceed, (3) the conduct of the citizens. By these standards, I think there was a fairly robust consensus of a freedom of travel and commerce and political speech, and a consensus in favor of certain key procedural rights, like trial by jury in criminal cases and the writ of habeas corpus. None of these was novel as of 1776, to be sure.

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David Upham
on March 31, 2019 at 21:38:28 pm

Your original comment does not ignore religion: “Howard conspicuously omitted (1) rights that respected basic human dignity or natural rights (such as religious free exercise or the immunity against compulsory self-incrimination), and (2) rights that was not universal to the states from 1776 (such as religious non-establishment and jury trial in civil cases).”

Does the 1776 consensus you speak of influence the perhaps 1968 appearance of African-American Christianity? See https://www.wsj.com/articles/dr-kings-radical-biblical-vision-1522970778 to date the sect.

Are the people of the 1776 consensus collaborating for 2019 civic integrity more than a religious faith? Are the 1776 people even involved in 2019 living? Do you represent them more than you represent your fellow citizenship?

Also, did the 1776 consensus favor criminal jury unanimity? If so, how did the U.S. Amendment VI require the states to provide an impartial jury rather than jury unanimity? Do U.S. scholars who defend 1776 consensus care that 1967 England set aside unanimity, creating 10:2 jury verdicts in criminal trials so as to lessen the power of organized crime?

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PHILLIP BEAVER
on April 01, 2019 at 16:40:05 pm

Eureka!
I have finally come across an invocation of the "Republican Guaranty" clause in the Committee's Report on Reconstruction.

and here we all were believe that the guaranty clause was merely "surplasage."

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gabe
on April 02, 2019 at 06:40:42 am

If 1776 consensus failed, as I think it did, the forum may search for a dated consensus that accommodates the particulars I mentioned: African-American Christianity (emerging after 1968) and criminal-jury impartiality through 9:3 verdicts (an 1880 provision to fulfill 1791 U.S. Amendment VI--uniquely in my state, Louisiana, a former French colony). I suggest the 1787 consensus by the signers corrects many past mistakes including those of the 1776 consensus.

Agathon (Plato’s Symposium) suggested that humans who appreciate life neither initiate nor tolerate harm to or from any human or god. But some humans in all ages think crime pays. Pericles suggested that humans may collaborate to discover and practice justice under law.

The consensus that fulfills the above five considerations and beyond is expressed by the 1787 signers of the preamble to the Constitution for the USA. The U.S. preamble’s proposition offers: Willing fellow citizens in their states collaborate to provide Union, Justice, Tranquility, defense, and welfare so as to secure human liberty for current and future citizens including dissidents to justice, who may reform.

About 1/3 of 1787 delegates expressed dissent by not signing. Some dissenters wanted to impose the 1776 consensus. Others could not find tranquility in their personal religion so as to provide private liberty to fellow citizens. The U.S. preamble not only does not propose religion, it consigns spirituality to private practice. Religious privacy requires civic integrity rather than secularism. Who wants to present their God for evaluation in a public forum?

By trusting-in and committing-to the U.S. preamble’s proposition, fellow citizens may avoid repeating the mistakes of 1776. When nine states ratified the U.S. preamble and its amendable articles on June 21, 1788, a path toward statutory justice, impossible as perfect law may seem, was begun by a 51-word sentence. So far, We the People of the United States failed the opportunity to collaborate for the ultimate justice of responsible liberty.

The generations before gave our generation the privilege of establishing the U.S. preamble’s practice. Let’s get started, by collaborating to discover the-objective-truth rather than conflicting for dominant opinion.

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PHILLIP BEAVER

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