The American Constitution and the Death of the “Great Experiment”

Allyn Cox’s Oil Mural depicting the nature of revolution within the various colonies (1973-1974) | Courtesy of Wikimedia Commons

What, exactly, makes the United States of America so unique? Is it our food, our inventions, our skyscrapers, or our fancy cars? Could the answer to this question lie within our superb economic system, abundant natural resources, or other environmental factors? No, not a single one of these things make the United States particularly unique. Instead, the key to our uniqueness lies within the name of our nation itself. We are, after all, called the United States of America for an important reason. It was our states alone that birthed, continued, and brought to conclusion exactly what Alexis de Tocqueville once famously called the “Great Experiment.”1

The “Great Experiment” was not created in a day, nor was it created by accident. Rather, it was the natural result of the combined accumulation of different ideals and values held dear by the occupants of the British colonies. Even as early as 1643, there existed between Connecticut, Plymouth, New Haven, and Massachusetts a “perpetual confederation,” titled the “United Colonies of New England.”2 This particular union was crafted by the four colonies with great care, and guaranteed that the general government of the confederacy would never inter-meddle “with the government of any of the jurisdictions.”3 A shining example of both American spirit and American ideals, the Confederacy would last well over forty years. Even later, Benjamin Franklin would draft the “Albany Plan” in 1754, a plan of union that, although it still described a confederacy, was ultimately considered too centralized for the American colonies.4

A political cartoon created by Benjamin Franklin urging the separate colonies to join the Albany Plan for Union (1754) | Courtesy of the United States Library of Congress

When one considers the history of the colonies, it seems only natural that they would enter into a confederation rather than consent to a consolidated government. The colonies had, after all, already grown accustomed to governing themselves under British rule well before the signing of the Declaration of Independence.5 Indeed, almost all of the colonies had created unique systems of governance within their respective territories before the American Revolution in 1775. Two years into the war, the states (as they were then called) realized that they could not continue battling the British as private, competing body politics. Accordingly, they convened in the Second Continental Congress and, after much debate, drafted and sent out the “Articles of Confederation and Perpetual Union” for review by the legislatures of the thirteen independent states. The states were slow to adopt the document, and, as a result of the values entrenched within them, were very hesitant to give up their hard-fought rights to another Federal body. However, by the year 1781, the Articles of Confederation was finally ratified by every single state government. All of the states officially entered into a perpetual union with one another.6

The Articles of Confederation, when closely examined, ultimately reveals the very nature and spirit of the famed American Revolution. A direct product of the Revolution itself, the document was an ode to the “self-government” mentality that the colonists had slowly come to adopt after living so long under British rule. Nowhere is this better examined than in Article II of the document, which reads:

Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.7

Mirroring the ideas advanced within the “United Colonies of New England,” this Article provides great insight into the mind of the early American revolutionary. Note, also, the use of the term “expressly delegated” within the Article. The term was paramount, due in part to the particular construction of the Articles of Confederation. The idea of “expressly delegated” powers is the backbone of any confederation, and this rang especially true regarding the Articles of Confederation. Every single statement within the instrument was painstakingly crafted by the Second Continental Congress to leave absolutely nothing open to Federal interpretation.8 In doing so, the Second Continental Congress was able to provide the states with a detailed explanation of the rights they were ceding to the general government by entering into the Confederation. Hence, the document not only effectively prevented the slow, gradual erosion of states rights, but it also rightly defended the states against Federal encroachment into their affairs. This idea of “expressly delegated” powers will appear again, and is one of the core differences commonly observed between the Articles of Confederation and its successor, the American Constitution.

The Articles of Confederation was certainly not without its flaws. The document was drafted in the fires of war, and was not nearly as generous to the Federal government as it safely could have been.9 Indeed, the product of the Second Continental Congress could accurately be described as a physical manifestation of the reluctance that the colonies-turned-states held regarding perpetual union. Their fear was certainly understandable, as they had just broken away from Great Britain, and were only beginning to enjoy their hard-earned independence. The states were all too worried about ceding their self-governance to a foreign head by creating a miniature “Great Britain” within some federal entity identical to their previous masters in everything but location. In remedying this great fear, the states went to great lengths to remove the Federal government of even the most fundamental powers needed for its existence. The flaws that had been sowed throughout the Articles of Confederation were never to be remedied, however, and despite receiving a great amount of local and international praise, the Articles would not stand the test of time.10

Abandoning the Articles of Confederation was in no way an easy or quick process. In fact, the states had never originally intended to abandon the Articles in the first place. Instead, they originally called for a convention to “devise such further provisions as shall appear to them [members of the convention] necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.”11 That is, the Confederacy had ordered the creation of a convention to specifically draft amendments to the Articles, that would later be examined by Congress for subsequent approval or rejection. It did not, in any way, consent or endorse the creation of a new government altogether. Little did the Confederacy know, however, that the convention would nevertheless betray the Union and do exactly that.

Upon arriving in Philadelphia, the various delegates would quickly enter into secrecy. No longer officially representing their states, the men in the convention were acting illegally, attempting to undermine the very product and cause of revolution. The room in which they illegally drafted their new constitution was to be boarded up, and discussion about the new document kept to an absolute minimum.12 Luckily for the delegates, attendance of the convention was remarkably small. Of the seventy-four men assigned to the convention, nineteen would never even attend a single session. Of the fifty-five that did, only thirty would actually stay for the entirety of the convention. If that wasn’t bad enough, only six of the fifty-six men who signed the Declaration of Independence were present at the convention.13 Thus, we observe a very strange phenomenon: 30 to 39 individuals, many of whom were avid defenders of centralized government, acting alone, drafting a document in complete secrecy, almost without any political resistance whatsoever. The convention was filled to the brim with Federalists of all kinds, almost completely free from any true resistance to consolidated government, as strong defenders of the Articles of Confederation were very few and far between. For the Federalists, there could not have been a better time to draft a new constitution, as Thomas Jefferson was serving as an ambassador in France at the time, and Patrick Henry had “smelled a rat in Philadelphia,” and subsequently refused to participate in the destruction of the confederacy.14 Despite the lack of any real resistance, the Convention would still find itself divided over the issue of state representation within the new government. Some members argued for a return to the representation that the Articles of Confederation had provided, while others argued for representation based on population alone. The members were eventually able to come together in agreement on the issue, creating the famed “Great Compromise.” Even this “Great Compromise,” however, would ultimately fail to balance the proposed government, changing nothing but the physical structure of Congress while avoiding altogether the express powers of government around it. 

Howard Christy’s “Scene at the Signing of the Constitution of the United States” (1940) | Courtesy of Wikimedia Commons

After five grueling months, on September 17, 1787, the convention had finally finished their magnum opus—the American Constitution. Our founding fathers had spent a significant amount of time preparing the document for public approval, in order to give the document the appearance that it desperately needed to gain public support.15 Elbridge Gerry, a significant delegate in the convention, did not even turn heads when he stated that “the people should appoint one branch of the government in order to inspire them with the necessary confidence…”16 This idea of purposely giving the Constitution the appearance of a document that would protect self-governance is mirrored in many papers published quickly after the appearance of the Constitution. A popular article at the time remarked:

Their aim, I perceive, is now to destroy that liberty which you set up as a reward for the blood and treasure you expended in the pursuit of and establishment of it. They well know that open force will not succeed at this time, and have chosen a safer method, by offering you a plan of a new Federal Government, contrived with great art, and shared with obscurity, and recommended to you to adopt; which if you do, their scheme is completed, the yoke is fixed on your necks, and you will be undone, perhaps for ever, and your boast liberty is but a sound, Farewell!17

Regardless of origin, the Constitution had finally become available to the general public. Much to our founding fathers’ dismay, however, the unveiling of the document was met with immediate controversy. Indeed, it took only eight days after the boarded windows were removed from the convention, for the first published Anti-Federalist paper to appear.18 The paper, titled “A Dangerous Plan Of Benefit Only to The Aristocratick Combination,” immediately sparked a debate that would later lead to the creation of both the Bill of Rights and our modern political parties.19

The Federalists were not content with staying silent, and their published response to the first Anti-Federalist paper marked the beginning of a ravenous three-year-long debate that would constantly pit intellectual titans against each other in the public forum. If you lived in New York during the ratification process of the Constitution, it would not be uncommon for you to pick up a newspaper and find Alexander Hamilton and James Madison going against Patrick Henry and George Clinton on the front page. Every paper was published anonymously, which allowed almost anyone with an opinion and a knack for writing to join in on the grandiose debate. Not everyone, however, would be responded to. One of the most popular Anti-Federalists, a writer known only by his pen-name “Brutus,” for instance, published over six groundbreaking essays that never once received a proper Federalist response.20

The two “parties” were fairly evenly matched, but the Anti-Federalists would be the first to crack.21 The problem began when a collection of amendments was first proposed by the Federalists as a sign of compromise. As soon as the list of amendments was proposed, the Anti-Federalist party began to split apart. Half were content with the adoption of certain amendments to the Constitution, and the other half kept true with the original intent of the party: the rejection of the proposed Constitution altogether.22 The Federalists were quick to jump on the opportunity to divide their opponents, and even promised to adopt certain amendments if the various states were to accept the proposed Constitution. In this way, the state governments became distracted, and the divide between the Anti-Federalists became even greater. Even more, the proponents of the old Articles of Confederation began to focus upon creating amendments rather than resisting the adoption of the document altogether. With their opposition all but shattered, the Federalists were eventually able to get the Constitution ratified by a majority of the states by June 21, 1788.23 The Articles of Confederation, and all of the ideas behind it, had almost officially been dissolved. The ideas of the American Revolution, it seemed, were destined to be diluted beyond recognition, lost within a new, consolidated government.

Gilbert Stuarts’ painting of James Madison, the “Father of the Constitution” (1804) | Courtesy of the Colonial Williamsburg Foundation

Although the Constitution had been generally agreed to, there still existed a great number of state legislatures that were not eager to invest their hard-earned freedom and self-governance into a government that could so easily turn against them.24 A majority of the states, while certainly eager to adopt a new constitution to remedy the downtrodden state of the Union, refused to part with a specific number of liberties that they had enjoyed under the Articles of Confederation. Thus, the creation of an official movement calling for a Bill of Rights was born. Of the amendments proposed to be added to the Bill of Rights, one stood out among the others. This particular amendment sought to prevent the expansion of Federal power by reviving the Second Article within the Articles of Confederation and applying it to the Constitution. If adopted, this amendment would effectively kill the idea of “implied powers” within the Constitution, and render anything not “expressly delegated” to the Federal government open to the states. The amendment was the tenth item added into the proposed Bill of Rights, and many Anti-Federalists believed that it had the ability to remedy the problems that they observed within the present government.

Due to its overwhelming popularity, James Madison feared that the Constitution would fail to be successfully adopted if the tenth amendment were not added, and quickly promised to adapt it for use in the Constitution.25 Madison, however, had no intention of letting such an amendment check the Federal government.26 Instead, he elected to trick the state legislatures into adopting the Constitution without actually changing the nature of the government by editing the tenth amendment as to effectively render it useless. This was an alternative to simply dropping the amendment altogether, an act that Madison had grown fairly accustomed to. After all, the “Father of the Constitution” had, up to this point, already culled over 200 proposed amendments that, in his eyes, went to “endanger the beauty of the Government.”27 To find out just how James Madison effectively hollowed out the tenth amendment, it first becomes necessary to carefully observe the construction of the amendment itself. Madison writes, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”28 Upon first glance, this looks strikingly similar to Article II of the Articles of Confederation. However, the facade falls away when the reader considers just what “not delegated… by the Constitution” actually entails. In short, the fundamental flaw in the amendment is brought about as a result of the particularly vague language in which the Constitution was written.29 There is nothing “not delegated… by the Constitution,” because the document provides the Federal government with the means to define and expand its own role in the Union. Proud Federalist Alexander Hamilton even went so far as to boast that this was an improvement over the Articles of Confederation, admitting:

The authority of the proposed Supreme Court of the United States, which is to be a separate and independent body, will be superior to that of the legislature. The power of construing the laws according to the SPIRIT of the Constitution, will enable that court to mould them into whatever shape it may think proper.30

Pushed on one side by constant fears of anarchy and on the other by a strong Federalist movement, the legislatures would eventually accept Madison’s version of the tenth amendment. The subsequent final adoption and utilization of this new, edited American Constitution would, unbeknownst to the states, eventually allow Federal power to extend to all matters save those expressly prohibited by the instrument, effectively bringing an end to the once famed “Great Experiment.”

Over time, as the Anti-Federalists argument faded into obscurity, the newly-adopted Federal government slowly began removing any restriction that was placed upon it by the states. This gradual process began with a simple Supreme Court case: Marbury V. Madison. The details of the case are wholly insignificant when compared to the Court’s decision, as it was the decision of the Court that spawned the dangerous idea of “Judicial Review.” From that day forward, the Supreme Court wielded a power over the states that was never expressly delegated in the Constitution.31 By adopting the doctrine of “Judicial Review,” the Supreme Court had finally grown out of its original constitutional boundaries into a creator of policy, rather than a reviewer of it.32 Wielding the seemingly endless variety of vague terms planted within the Constitution and the Bill of Rights as weapons against the interests of the states, the Federal government has finally reached a level of autonomy that the Federalists could have only dreamed of. This statement is little more than fact: there is not one single decision made by state courts, nor is there one piece of legislature, that can exist without the Supreme Court’s consent.33

The conflict between the Articles of Confederation and the Constitution is almost fundamental.34 At their core, the differences between the documents originate within the particular way each document treats the states that ratify them. Under the Articles of Confederation, the Federal government existed to serve the states. Each and every member of the Confederacy received an equal vote, reserved the right to resume all delegated powers, and was protected from the overreaching, negative power of consolidated government via a very descriptive collection of Articles. Under the Constitution, however, the states exist to serve the government. Each and every “member” of our modern Union is denied even the most basic rights that they once enjoyed. One of the many examples of this today is the fact that our states no longer possess the mere right to elect representatives that could serve their interests within the Federal government.35 They cannot even exist without the assistance of an overreaching, bloated government far bigger than any nightmare the Anti-Federalists could imagine.36 This is the direct result of adopting a constitution that not only fails to accurately describe the numerous powers that it grants to the general government, but one that also provides the government with the ability to change the very “spirit of the Constitution” on a whim.37

The Constitution, far from embodying the ideals of the American Revolution, is almost a rejection of the principles that created the Declaration of Independence. For better or worse, the Constitution certainly betrayed the American Revolution and the spirit behind it. If the American patriots of old where to catch a glimpse of the existing condition of the United States of America, they would certainly find it almost unrecognizable. Perhaps, in reviewing modern-day American politics, they would find themselves in the middle of a nation perfectly described by George Bryan or John Smilie on October 27, 1787:

It is beyond a doubt that the new federal constitution, if adopted, will in a great measure destroy, if it does not totally annihilate, the separate governments of the several states. We shall, in effect, become one great republic. Every measure of any importance will be continental.38

The American Constitution has, regardless of the original intent of its creators, ultimately brought about the creation of a single consolidated Republic consisting of fifty administrative zones, i.e. states. The members of Congress today have no obligation to serve anything but a vague notion of “the people,” an obligation that they can exploit to no foreseeable end.39 Tragically, the states, who once wielded tremendous power, have been transformed into weakened shadows of their former image, required to carry out the endless mandates forced upon them by a ever-expanding Federal government. The line separating the states and the government that they serve has been so blurred as to render the two almost completely inseparable.40 In the minds of many, the states are under the same amount of abuse that they had once endured under Great Britain. For one, the states can no longer elect members to serve as their representatives in Congress. For another, they are constantly forced to pay taxes to a Federal body that, again, does not necessarily represent their individual interest. They are, in almost every sense of the term, often forced to participate in “taxation without representation,” one of the main issues that once stirred the original American colonies to revolution.41 Ironically, in the end, the American Constitution not only destroyed the “Great Experiment,” but it also indirectly contributed to the undoing of the very ideas that ignited the American Revolution itself.

  1. Alexis de Tocqueville, Democracy in America (London: Saunders and Otley, 1835), 15.
  2. Douglas G. Smith, “An Analysis of Two Federal Structures: The Articles of Confederation and the Constitution,” San Diego Law Review 34, no. 1 (1997): 259.
  3. John F. Manley and Kenneth M. Dolbeare, The Case Against The Constitution: From the Anti-Federalists to the Present (Armonk, N.Y.: M.E. Sharpe, 1987), 8.
  4. John F. Manley and Kenneth M. Dolbeare, The Case Against The Constitution: From the Anti-Federalists to the Present (Armonk, N.Y.: M.E. Sharpe, 1987), 8.
  5. Frederick Jackson Turner, The Frontier in American History (MA: Courier Corporation, 2010), 74.
  6. Merrill Jensen, The Articles of Confederation: An Interpretation of the Social-constitutional History of the American Revolution, 1774-1781 (WI: University of Wisconsin Press, 1940), 120.
  7. Second Continental Congress, Articles of Confederation (1777) University Study Edition (San Bernardino: CreateSpace Independent Publishing Platform, 2013), 8.
  8. Andrew C. McLaughlin, The Foundations of American Constitutionalism (New York: The New York University Press, 1932), 147-148.
  9. Andrew C. McLaughlin, The Confederation and the Constitution, 1783-1789 (New York: Collier, Later Printing edition, 1967), 49.
  10. George William Van Cleve, We Have Not a Government: The Articles of Confederation and the Road to the Constitution (IL: University of Chicago Press, 2017), 1-3.
  11. Second Continental Congress, Documents Illustrative of the Formation of the Union of the American States: Proceedings of commissioners to remedy defects of the Federal Government, September 11th, 1786 (Washington D.C.: Government Printing Office, 1927), 1.
  12. John F. Manley and Kenneth M. Dolbeare, The Case Against The Constitution: From the Anti-Federalists to the Present (Armonk, N.Y.: M.E. Sharpe, 1987), 12.
  13. John Joseph Lalor, Cyclopaedia of Political Science, Political Economy, and of the Political History of the United States by the best American and European Authors (New York: Maynard, Merrill, & Co., 1899), 231.
  14. Joseph L. Daly, “Interpreting the Constitution: Stability v. Needs,” Capital University Law Review 16, no. 2 (1986): 214.
  15. John F. Manley and Kenneth M. Dolbeare, The Case Against The Constitution: From the Anti-Federalists to the Present (Armonk, N.Y.: M.E. Sharpe, 1987), 14.
  16. Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia, in 1787, Vol V. (Berkeley: University of California, 1888), 160.
  17. John Jay, James Madison, Alexander Hamilton, Patrick Henry, Brutus, The Complete Federalist and Anti-Federalist Papers (San Bernardino: CreateSpace Independent Publishing Platform, 2018), 595-596.
  18. John Jay, James Madison, Alexander Hamilton, Patrick Henry, Brutus, The Complete Federalist and Anti-Federalist Papers (San Bernardino: CreateSpace Independent Publishing Platform, 2018), 459.
  19. John H. Aldrich, Why Parties?: The Origin and Transformation of Political Parties in America (IL: University of Chicago Press, 1995), 84.
  20. John Jay, James Madison, Alexander Hamilton, Patrick Henry, Brutus, The Complete Federalist and Anti-Federalist Papers (San Bernardino: CreateSpace Independent Publishing Platform, 2018), 568.
  21. David J. Siemers, Ratifying the Republic: Antifederalists and Federalists in Constitutional Time (CA: Stanford University Press, 2004), 1-2.
  22. David J. Siemers, Ratifying the Republic: Antifederalists and Federalists in Constitutional Time (CA: Stanford University Press, 2004), 208-211.
  23. Bernard Grofman, Donald A. Wittman, The Federalist Papers and the Institutionalism (NY: Algora Publishing, 1989), 222.
  24. David J. Siemers, Ratifying the Republic: Antifederalists and Federalists in Constitutional Time (CA: Stanford University Press, 2004), 25.
  25. David J. Siemers, Ratifying the Republic: Antifederalists and Federalists in Constitutional Time (CA: Stanford University Press, 2004), 209.
  26. U.S. Congress, House of Representatives, Amendments to the Constitution, Annals 1:761, 767–68 (IL: The University of Chicago Press, 2000).
  27. James Madison, Speech Proposing the Bill of Rights (D.C.: Cong. Register I, 1789), 437.
  28. Terry Jordan, The U.S. Constitution and Fascinating Facts About it (IL: Oak Hill Publishing Company, 2017), 47.
  29.  Saikrishna B. Prakash and John C. Yoo, “The Origins of Judicial Review,” The University of Chicago Law Review 70, no. 3 (2003): 887-888.
  30. John Jay, James Madison, Alexander Hamilton, Patrick Henry, Brutus, The Complete Federalist and Anti-Federalist Papers (San Bernardino: CreateSpace Independent Publishing Platform, 2018), 419.
  31. David J. Siemers, Ratifying the Republic: Antifederalists and Federalists in Constitutional Time (CA: Stanford University Press, 2004), 209-210.
  32. Gordon S. Wood, “The Origins of Judicial Review Revisited, or How the Marshall Court Made More out of Less,” Washington and Lee Law Review 56, no. 3 (1999): 787-789.
  33. Gordon S. Wood, “The Origins of Judicial Review Revisited, or How the Marshall Court Made More out of Less,” Washington and Lee Law Review 56, no. 3 (1999): 787.
  34. Andrew C. McLaughlin, The Foundations of American Constitutionalism (New York: The New York University Press, 1932), 146-148.
  35. G. Haynes, The Senate of the United States (NY: Henry Holk, 1938), 79-117.
  36. John Jay, James Madison, Alexander Hamilton, Patrick Henry, Brutus, The Complete Federalist and Anti-Federalist Papers (San Bernardino: CreateSpace Independent Publishing Platform, 2018), 517.
  37. John Jay, James Madison, Alexander Hamilton, Patrick Henry, Brutus, The Complete Federalist and Anti-Federalist Papers (San Bernardino: CreateSpace Independent Publishing Platform, 2018), 419.
  38. John Jay, James Madison, Alexander Hamilton, Patrick Henry, Brutus, The Complete Federalist and Anti-Federalist Papers (San Bernardino: CreateSpace Independent Publishing Platform, 2018), 517.
  39. G. Haynes, The Senate of the United States (NY: Henry Holk, 1938), 79-81.
  40. John F. Manley and Kenneth M. Dolbeare,The Case Against The Constitution: From the Anti-Federalists to the Present (Armonk, N.Y.: M.E. Sharpe, 1987), 26-27.
  41. Peter Force, Volume 5 of American Archives: Consisting of a Collection of Authentick Records, State Papers, Debates, and Letters and Other Notices of Publick Affairs, the Whole Forming a Documentary History of the Origin and Progress of the North American Colonies; of the Causes and Accomplishment of the American Revolution; and of the Constitution of Government for the United States, to the Final Ratification Thereof (NH: National Library of the Netherlands, 1837), 700.
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16 Comments

  • Great article Greyson Addicott! Congratulations for the nomination of Best Explanatory Article! I am sure that everyone else can tell the same way I can the amount of dedication and research you had to do for this article. Even though not many people are interested in the topic of American history, I am pretty sure that everyone who read your article enjoyed it a lot.

  • This was a very interesting article to read. I believe we were founded by these ideals that actually came from Christian values that as a society today we have largely forgotten. The next thing to go is our government. A government that isn’t grounded in a specific set of ideals is one that won’t last that long. We are only 250 years old and have turned away from our foundations. I hope we continue to improve ourselves and not destroy ourselves.

  • This was a good article, there are few things that sets apart the states from other countries, because it depends how we listen to everyone and they have a chance to influence political leaders, also this article says about valuable time for our country and men put hours in looking to be sure for it how people want it. after America got separated from England of weak government and America have different policies and federal regulation. this article was really well written and organized.

  • America is unique and it has its own policies or beliefs. They separated from a centralized government in England in order to be more free. I didn’t know that so few of the founding fathers were actually involved in the creation of the Constitution. I love how there is so much secrecy involved that seems so interesting to me because I am a curious individual. It was a great article to read with plenty of information.

  • I can tell by reading this article that the author took a great deal of time doing research on the topic. Everyone learns about these important documents eventually but none to this extent. This article explored many things I was unaware about in regards to these documents. I wasn’t aware of the blatant secrecy that went on and in fact think it was wrong. This was an interesting article and brought up many points I was unaware of.

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