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The Nature of Judicial Power
by Herbert W. Titus
Previous: Law of Nature of Separation of Powers
Now I want to turn to the second topic, and that is, what power. What is the law of the nature of judicial power? Now as I believe most of the matters that face us, the law is really a simple matter, we just simply need to believe it, instead of trying to figure it out for ourselves.
Responsive, Not Initiative, Power
Let me take you once again back to Exodus 18:16. I believe in this simple verse that we see the three-fold aspect of the law of judicial power. “When they have a dispute, it comes to me.” Notice, he doesn’t go to the dispute, the dispute comes to him. So the first law of the nature of judicial power is that it is a law of responsive power, not of initiative power. A law of responsive power, not of initiative power. Now notice, contrast the way Moses exercised judicial power, waiting for the people to bring the dispute to him, to when he exercised legislative power. In Exodus 34:29-35 we have the account of after Moses had broken the Ten Commandments when he saw the people prostituting themselves before the golden calf. He came back with a new set of ten commandments.
But what did he do? He took it to the people. As the legislator, he took the initiative to tell the people the law that governed their lives. The nature of a legislative power is to take the initiative, to bring the law to bear to the people within the legislative authority. Contrast that also to the exercise of executive power and look at the testimony in Joshua 1:10-11. Who took the initiative to muster the army to go across the river Jordan into the promised land? Joshua, as commander in chief. He didn’t wait for the people to say, “Well, are we ready to go? Is it time for us now to go?” No, Joshua said, “In three days we’ve got to go across the Jordan. Get your gear together, get your backpacks on, get your arms, so that we might go into the land.”
And we even see this today, in a current controversy over the Iranian policy. Notice it was the President who took the initiative, or those working under him who took the initiative, in that matter. The President didn’t wait around for someone else to take the initiative. And Congress doesn’t wait for someone to come to it to complain. As a matter of fact, we see the legislators quick to take initiative to determine whether or not the President with regard to the Iranian policy violated the law. We would not expect, hopefully even in this day, that Justice William Brennan would call the Supreme Court to determine whether or not the President had violated the law. No, as is meet for one who exercises judicial power, we hear nothing from the Supreme Court, because they had no power to initiate a review of whether the Iranian policy is contrary to law or not. They must wait for the matter to come to it, if it ever does come to it.
But contrast the way the Court is conducting itself with regard to the Iranian affair and what the Court said in Roe v. Wade. Listen to this passage from the Roe v. Wade case. “Measured against these standards,” that is, the standards they set up under the Due Process Clause, “Article 1196 of the Texas Penal Code restricting abortions to those procured or attempted by the medical advice for the purpose of saving the life of the mother,’ cannot survive constitutional attack made upon it here.” Then after they held the Texas statute to be contrary to the Constitution, they immediately launched into the next section and said this: “To summarize and to repeat,” (listen carefully to the language) “a state criminal abortion statute of the current Texas type…”
Notice it doesn’t say “the criminal statute of Texas.” It says a “state criminal abortion statute of the current Texas type.” They’re not going to wait for someone to litigate whether the Oregon statute is unconstitutional. They’re not going to wait to determine whether or not the North Dakota statute is unconstitutional. They’re not going to wait for someone to bring another case under a different abortion statute. They’re going to resolve it now, once and for all. “A state criminal abortion statute of the current Texas type that excepts from criminality only a lifesaving procedure on behalf of the mother without regard to pregnancy stage and without recognition of other interests involved, is violative of the Due Process Clause of the Fourteenth Amendment.” A clear example of simply not exercising judicial power at all, because it doesn’t have one essential feature of judicial power, and that is to wait until someone brings the claim to them under the other statutes that were not being litigated in that particular case.
Now the second essential feature of judicial power is once again found in Exodus 18:16. Not only was the judge to wait for a matter to be brought to him before he could take action. Notice it says, “I judge between a man and his neighbor.” The second essential feature of the exercise of judicial power is that it resolves a dispute to parties of a case, not a dispute for the whole nation. It was only to resolve a dispute between a man and his neighbor, not between a man and the whole nation. Or between one department of the nation and another department of the nation. Now this particular exercise of judicial power is reflected in the difference between what is called a “rule” and what is called an “order.”
A court cannot under the law of the nature of judicial power issue a rule, because the very nature of a rule is that it is an action of general application. It applies not just to the parties of the case, it applies to everyone. Let me illustrate the difference between a rule and an order by contrasting Exodus 20:13 which says “thou shalt not kill,” a rule, with Numbers 35:24 in which the congregation was to determine between the slayer and the avenger of blood as to whether or not a particular person had committed an offense against “thou shalt not kill.” The second was only an order which bound the parties to the case. The first is a rule that governs everyone in the nation of Israel.
Now the importance of this distinction between rule and order is reflected in a passage of scripture in Deuteronomy 17 that deserves very careful consideration. And that is that when a judge gave an order, if you were a party to the case, you were bound to obey it. No questions asked. There was no comparable rule that a person was bound by whatever a person in the name of legislative power might say. As a matter of fact, the testimony of scripture is that if someone writes a rule that is contrary to the law of God, then you are duty bound to disobey it as is attested in Acts 5:29. The difference between a rule and an order here is extremely important. As a matter of fact, it is the foundation of what we know as the contempt power of the court.
It is based upon the principle that you can’t be a judge of your own case. Two parties can’t bring a dispute before a judge and the losing party, after the judge resolves it against him, say “well, I don’t like that judgment. I’m going to judge my case myself.” The contempt power is power that says you can’t act presumptuously when a court orders you to do a certain thing. It is based upon the assumption that the judicial power is lodged in the court, not in the individual person before the court. But in order for that contempt power to be exercised lawfully, it has to be confined to an order in a specific case to parties to the case. Otherwise, the court could hold us all in contempt if we happened to disagree with one of their opinions.
Let’s go back and look at Roe v. Wade. Was it an order or was it a rule? What’s so remarkable about the Roe v. Wade case is that at the conclusion of the case, it doesn’t say, “State of Texas, the statute is unconstitutional, you can’t enforce it.” Listen to the language you find in the trimester formula of the court. “First trimester. For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” Now listen to the statement as to the guidance with regard to attending physician. “The state may define the term physician’ as it has been employed in the preceding numbered paragraphs of this opinion to mean only a physician currently licensed by the state, and may proscribe any abortion by a person who is not a physician as so defined.”
That language includes every state in the union, and yet only the state of Texas was a party to the case. They are the only ones who brought the dispute, or were involved in a dispute brought by someone else. And yet this rule, this three-part rule, was designed to bind every state, not just the state that was a party to the case. And deny to the state of Oregon, to the state of North Dakota, to the state of North Carolina, the opportunity to be heard. The very nature of this three-part formula, this trimester rule, was to govern every state in the union, and therefore was not an exercise of judicial power.
Exercise of Judgment, Not Will
We should not be too surprised. For the United States Supreme Court took its own rhetoric too seriously from the 1958 case of Cooper v. Aaron, where Chief Justice Warren, frustrated by the reluctance and resistance in the South to the court order in Brown v. Board of Education to desegregate the schools, made this most startling statement, and it was for a unanimous court. They declared
the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution. And that principle has ever since been respected by this Court and the country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment, enunciated by this Court in the Brown case, is the supreme law of the land. And Article VI of the Constitution makes it of binding effect on the states, anything in the Constitution or laws of any state to the contrary notwithstanding.
Now if you take that language seriously, that means that when the Georgia sodomy statute was litigated recently in the United States Supreme Court, and if it would have come out the other way, every sodomy statute in every state would have been unconstitutional, even though only the state of Georgia was a party to the case, contrary to the exercise of the nature of judicial power. Not only is the nature of judicial power responsive, not initiative, limited in its scope to the parties of the case, not to people who are not parties, the law of the nature of judicial power is it is judgment, not will.
Listen to the language once again of Exodus 18:16: “when they have a dispute it comes to me and I judge between a man and his neighbor, and make known the statutes of god and law.” Make known the statutes of God and his law. It doesn’t say “hit you over the head with a baseball bat.” It doesn’t say, put you in jail if you don t do what we say. No, all the judge has is judgment, to make known the statutes of God and his law.
Notice, this is what distinguishes judicial power primarily from executive power. In the previous section, limiting the order to the parties of the case is what primarily distinguishes judicial power from legislative power. Only legislators can enact rules that affect people generally. Courts can apply rules to the parties of the case. Now what we see here is that no court has the power to execute the law. Only the executive has power to execute the law. United States Marshalls, county sheriffs, or members of the executive branch – not the judicial branch. It is county sheriffs who go out and levy on property of a defendant who refuses to pay a judgment in response to a court order. The court can’t send the sheriff out, because that’s not the court’s business to send the sheriff out. The sheriffs don’t belong to the court’s office. The judge might be able to order his bailiff to do something, but he can’t order the sheriff to do it. It is within the executive power to execute the judgment of the court.
If you recently were watching television, at least in this area, on Channel 27 they had an interesting documentary film on the Little Rock Central High case of 1958, where governor Orville Fauvis called out the state militia to stop the court order of integration in Little Rock Central High. Well, who called out the state militia to stop the execution of a court judgment? The one who held executive power in the state of Arkansas. And while a federal court issued a judgment that that was contrary to the order of the court, and Fauvis withdrew the state militia, who was left to protect and to execute that judgment, but the city police. And of course they found themselves in an impossible situation. And if it hadn’t been that President Eisenhower called out the army, that judgment of the court would not have been executed in that particular case. But it shows, does it not, that it is the president, not the court, that sees whether the laws be faithfully executed. That’s Article II, Section 3.
Hear me carefully. If a court opinion is contrary to law, should an executive official execute it? Would it be faithfully executing the law to put into effect a lawless court judgment? Does not, not only an executive authority have discretion under the constitution, not to execute a judgment that is not a judgment at all but contrary to law, he has a duty under the Constitution to faithfully execute the law, not a court opinion. And therefore it is not surprising to remind ourselves that Alexander Hamilton in Federalist No. 78 said that the judicial branch is the least dangerous branch because it has neither force nor will, only judgment. That means, therefore, that just because a court renders an opinion, the sheriff or the United States Marshall, or any other executive officer, shouldn’t just automatically go out and execute it. Because they have an oath to faithfully execute the law, not a court’s opinion.
Only if the court’s opinion is true judgment, that is, only if the court’s opinion is right should it be executed. And that is an independent decision to be made according to the constitutional law of executive power, not one that should just simply automatically follow from the rendering of a court opinion. Even Chief Justice Marshall, who is oftentimes considered to be the architect of judicial review, and therefore is oftentimes cited in opinions such as Cooper v. Aaron, said the same thing of the limitation on judicial power. In Osborn v. The Bank, this is what he said: “judicial power as contradistinguished from the power of the laws has no existence. Courts are mere instruments of the law and can will nothing. Judicial power is never exercised for the purpose of giving effect to the will of a judge; always for the purpose of giving effect to the will of the law.”
Let me give you a simple example which illustrates this notion that judicial power, if rightfully exercised, is only judgment and doesn’t call for an automatic execution of that judgment. In 1923 in Adkins v. Children’s Hospital the United States Supreme Court struck down a District of Columbia minimum wage law as unconstitutional. Congress did nothing in response to that opinion, left the law on the books. In 1937, 14 years later in West Coast Hotel v. Parrish, the United States Supreme Court concluded that its Adkins decision was erroneous and overruled it.
The Attorney General of the United States was asked to give an opinion. Is the District of Columbia minimum wage law still law, or must Congress go back and pass a new one? That is, could the President faithfully execute that law in the District of Columbia now? Here was the Attorney General’s reply: “The courts have no power to repeal or abolish a statute, and notwithstanding a decision holding it unconstitutional a statute continues to remain on the statute books. The statute is valid from the date it was first effective.” You see, the Attorney General, even in 1937, believed the same thing that Blackstone said. If an opinion is contrary to law, it is not law at all. So Congress did not have to go back and reenact a statute that had always been law. They just hadn’t bothered to execute it.
There is another aspect to this notion that all the court has under judicial power is judgment, and not will. That is, they have no discretion as to the rule of law. They have only discretion with regard to its application to the facts. For example, a legislature can take the rule of law that you are supposed to exercise reasonable care towards your fellow man, and pass a rule that says you’ve got to drive 55 miles an hour on the freeway. Or 53, or 57, or 70. Because they have the authority to exercise their discretion as to how that rule of reasonable care might be articulated for the nation’s highways. But can a court? I would suggest to you that if a court set down such a rule, it would go beyond its authority to exercise judicial power, because it would no longer be exercising discretion as to the facts, but would be exercising discretion as to the conventional statement of an underlying principle of law which only the legislature has authority to do.
Let’s go back and look at that Roe v. Wade opinion and look at the formula that the court came up with regard to abortion. Notice that the court didn’t say that the Texas statute is unconstitutional, and leave it to the Texas legislature to go back to the drawing board and determine what kind of statute would be right in light of this court opinion. No, the court went ahead and wrote the formula. It wrote a 55 mile an hour formula for the state of Texas and for all states. As a matter of fact, it wrote clearly a 55 mile an hour formula when you think about the key to their formula is the viability of the fetus. Because if the fetus becomes viable, that is, capable of life outside of its mother’s womb, that is when the state has authority to take into account the potential life of the fetus in assessing what the rule of law ought to be with regard to abortion.
Immediately after Roe v. Wade, there was a dispute as to what that point of viability is. Is it the fifth month? Is it the fourth month? Indeed, some were claiming it is even the first month. So what had the Court done but drafted a 55 mile an hour speed limit rule, or one like that, to govern all abortion laws everywhere forever. Clearly not an exercise of judicial power, but a usurpation by the Court of legislative power.
Now what’s incredible about the Roe v. Wade case was that the state legislatures across the land responded as if the Court had executive power, and made no effort whatsoever to make an independent judgment as to whether it was right, or whether they had another option. Contrast that with the state legislative response to the United States Supreme Court cases that held old capital punishment statutes unconstitutional. States across the land didn’t believe that they were bound by that opinion because they knew that they could go back and redraft their capital punishment statutes, and take into account other factors and perhaps the second time around, get a favorable opinion from the Court.
You can examine Roe v. Wade and find that the Court confined its concern about the medical interests that were involved to only those medical risks of a woman who does have an abortion. They said that those medical risks are not very serious. But they never assessed what were the medical risks for a woman who had had an abortion. That factor was never taken into account. And the reason why it’s never been taken into account is because state legislatures have failed to recognize that the exercise of judicial power is only judgment, and not discretion as the. Court exercised in that particular situation in crafting its trimester rule.
CONSTITUTIONAL LIMITATIONS ON JUDICIAL POWER
Finally, what is the law of the constitutional limitation upon judicial power? What do we do with a court that habitually does not exercise judicial power, but indeed, usurps other power? Once again, let me suggest to you that there is guidance, not only in the Constitution, but guidance in the Scripture.
First of all, going back once again to Exodus 18, we find that there was a selection process with regard to the judges in Israel. Look at verse 21: “Furthermore, you shall select out of all the people able men who fear God, men of truth.” We find that Article II, Section 2, Clause 2 gives to the President the power to nominate judges to the Supreme Court and other judges. We find likewise in Hamilton’s Federalist No. 76 that the President is the one who has the authority to nominate judges because “he can investigate with care the qualities requisite to the position to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them.” In other words, the President in the nomination process should be looking for able men, who fear God, men of truth.
What’s happened to us today is that if a President articulated that as his standard, he would be accused of violating separation of church and state, when as a matter of fact, that’s the very quality that you must find if someone who is put in a position of lifetime tenure for good behavior is one who has those kinds of attributes. Because otherwise, you’re putting incredible power into the hands of a man who doesn’t fear God, but only fears himself. Someone who is not a man of truth, but would do whatever is expedient. No surprise, then, that the appointment power is tempered in the Constitution by the advice and consent of the Senate.
And yet, what do we see today in the judiciary committee of the United States Senate? Do they examine to see whether or not Justice Rehnquist was a man who was able, who feared God, and was a man of truth? Or did we not see a judiciary committee composed of many Senators who wanted to determine whether they believed what he stood for or whether they disagreed with what he stood for.
Listen to what Hamilton again says in Federalist No. 76:
To what purpose then require the cooperation of the Senate? I answer that the necessity of their concurrence would have a powerful, though in general a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity. And in addition to this, it would be an efficacious source of stability in the administration.
Because neither the President nor the Senate are looking for those who are ones who would respect the power of the judicial office, it is no wonder that the issue has become; “Do we agree with them or do we not agree with them.” And yet in the selection process, that was not considered to be the relevant consideration to determine who ought to sit as a Judge on the Supreme Court or any other federal court.
What is the other criteria? It is criteria that relates to judicial fidelity to the oath of office. Listen to what it says in Exodus 18:21 – not only men of truth but “those who hate dishonest gain.” Those whose character record would indicate that if you put them on the bench, you wouldn’t have to worry about whether they would conduct themselves in accordance with the standard of good behavior. But if they did go astray, the standard of good behavior is really in contrast to what we oftentime think of as a lifetime appointment. Judges on the United States Supreme Court and on the Courts of Appeal and District Courts are not there for life. They are there for a time of good behavior. And we’ve got to stop talking about lifetime tenure for judges. That’s not what the Constitution calls for – it calls for tenure during good behavior.
Now what is this standard of law with regard to good behavior? Listen once again to Federalist No. 78:
The standard of good behavior for the continuance in office of the judicial magistry is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.
Notice that good behavior was designed for the purpose of protecting the independence of the judges from legislative and executive removal. At the same time, it was designed to limit judges to their term of office so long as they conducted themselves well. Who was to enforce this standard of good behavior? Well let me suggest to you that it was given to the judiciary to discipline their own ranks. And a judiciary that abandons that responsibility is a judiciary that assumes that it has lifetime tenure instead of tenure during good behavior.
Now I believe that in the history of America there have been discipline matters taken against judges. But normally they are done in a very informal way. I know, for example, a District Judge in the state of Oregon who for many years had an office and a secretary and sat as Senior Judge, but never heard a case. But he was paid by the taxpayers during that entire time. You see, he was an habitual drunkard. And his colleagues eased him out of office, that is, eased him out of hearing any cases of any significance, but left him on the payroll. Because they were unwilling to take the action they were constitutionally required to take, and that was to oust him from office because he was persistent in failing to conduct himself in such a way that he could be a fair and impartial administrator of justice.
If the judiciary is not going to discipline itself, then we should not be surprised to see such actions as those recently in California. And we shouldn’t be surprised that a matter that perhaps is not really very significant becomes a matter of impeachment, with regard to the recent Judge out in Nevada that takes up all the time in the House and the Senate. Why? Because the judiciary won’t discipline its own ranks for failure to meet the standard of good behavior.
Now finally, we see the Biblical example of a failure to administer discipline when Samuel failed to discipline his own sons who were chasing after lucre and perverting judgment. No wonder the elders of Israel came to a point of frustration and said they wanted a king like all the other nations had. It is a testimony that if a judiciary does not discipline itself, then its going to find itself in great difficulty to exercise judicial power, especially in those states where the people can vote them out of office.
Let me talk to you a little bit about judicial impeachment. There is a law that governs impeachment. And I believe it’s a law that is ignored, particularly in the area of the misuse of the exercise of judicial power. Listen to Federalist No. 81, which I think is extremely helpful to understand. If a judiciary does not discipline itself, does not exercise judicial power, does not keep itself within the bounds of the law of nature and of nature’s God, here’s what Federalist No. 81 says:
This may inferred with certainty from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone is a complete security.
Now what they were talking about here was that if you had a judiciary that began to exercise legislative power, and usurping the function of Congress, or usurping the function of the state legislature, then that would be a high crime and misdemeanor and subject to impeachment. The assumption of the writers of the Federalist Papers was that the legislature would be a lawful legislature, one that would recognize the lawless exercise of judicial power, and if it saw it systematically and consistently being exercised, that they would not stand for it and impeachment would be the threat, and if necessary, would be instituted in the appropriate case.
But what do we see? We see a House and a Senate divided over the issue of abortion. They’ve never addressed the question of whether or not the Court in that particular opinion exercised judicial power or didn’t exercise judicial power. The reason for that is because they themselves no longer follow a rule of law in exercising legislative power, so we shouldn’t be surprised that they haven’t even considered the possibility of impeaching the several justices on the United States Supreme Court, for not only the decision in Roe v. Wade, but for a long line of cases in which the Court has exercised legislative power rather than judicial power.
In conclusion, I want to rephrase Justice White’s dissent a little bit. Here’s what I believe would have been the right thing to have said: “The Court has no authority to do what it has done today. The Constitution vests only judicial power in this Court. Today the Court has exercised legislative, not judicial power. This is only one instance in a long line of cases of usurpation of power and according to Federalist No. 81, is grounds for impeachment.” Thank you.
(Question about President’s possible course of action in response to Roe v. Wade.)
I believe the first step he could take is not to follow his predecessors. I think what we have seen in the last two or three decades are presidents who are result-specific in assessing the qualities of a particular person for holding the judicial office. For example, the majority of Roe v. Wade was made up primarily of Nixon appointees. It was a Republican court that constituted the judges that really rendered the majority decision. Now, why is that so when we had a man who said “I believe in strict constructionism,” that is, I believe that the judges are bound by the text and intent of the writers of the Constitution.
Well, the reason for that was that he only looked to see whether or not they had certain results in certain kinds of cases. If they had followed the Constitution in the area of criminal procedure, then that satisfied the President and those who reviewed those with regard to the appointment process. They didn’t ask any questions about any other area of the law. If they would have, they would probably have found, both with Blackmun as well as Chief Justice Burger, that those men were just as much willing to rewrite the Constitution as had their liberal counterparts been willing to do so. And indeed we have evidence of that.
So what I would suggest the first thing is to broaden the scope of the inquiry to find out just precisely what is the understanding of the office of judge, not how would you rule a particular case. Because what they may find is someone who rules favorably in one area, but because they do not have a constitutional legal understanding of judicial power, they will rule wrong in another area.
Now the second question, of course, is where can you find such men? And here I would suggest that they are looking in the wrong places. They are looking in prestigious law firms. They are looking at people who are active politically. A President, especially a President who has the kind of authority that President Reagan has had, is that he ought to exercise more independence of judgment in the office of President. We need to restore the appointment power to the President. Today, other than the United States Supreme Court, the appointment power effectively is exercised at the Circuit Court level and at the District Court level by Senators. They are the ones who decide who is going to be appointed. They are no longer being limited to responding to the President’s exercise of power.
Now we’ve seen the President, and I applaud him, in some instances taking the initiative. I think Dan Manion is a beautiful example of where the President said, “I’m going to appoint Dan Manion, I don’t care what Sen. Lugar might really think.” Sen. Lugar didn’t oppose him, but on the other hand it wasn’t Sen. Lugar’s choice. So what we need to do, I think, is to restore that constitutional balance.
I believe that in the question of faithfully executing the law, the President is not bound by a congressional enactment any more than he would be bound by a Court opinion. That if he believes that it is unconstitutional, then under his power to execute or not execute the law, he should obey the Constitution. Now there may be instances involving the abortion question where he has that authority. In the basic instrument of enforcing the criminal law, he doesn’t have that authority and therefore the question of executive power is really not in him, the question there really rests with the states. That goes for the legislative and at the executive level.
It’s amazing, isn’t it, today that if you go back and look at the early history of Supreme Court opinions that states didn’t automatically follow court opinions rendered by the United States Supreme Court Justices. As a matter of fact, there were some rather healthy and sometimes dramatic confrontations in the early history of our country. But today it’s like the state officials just roll over. The Supreme Court pronounces, we roll over. So I think the major responsibility in the abortion area lay with the state legislative and executive officials.
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