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  Can (a part of) the constitution be declared unconstitutional?
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Author Topic: Can (a part of) the constitution be declared unconstitutional?  (Read 1060 times)
Bacon King
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« on: March 09, 2019, 07:22:56 pm »

In particular, I'm looking for actual serious insight from the more legally knowledgeable members of the community.

Amendments to the Constitution immediately annul/limit/qualify other parts of the constitution, of course, but has there ever been an instance where it took decades after the passage of an amendment for the Judicial system to determine that the text of that amendment overrode some portion of the original constitution?

Like, as a specific example, court the Supreme Court use the "One Man One Vote" principle, based on the 14th Amendment, to declare the current apportionment method of the Senate to be unconstitutional?

Has anything on that scale ever happened before?
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« Reply #1 on: March 09, 2019, 10:06:39 pm »

In your specific example, even if a Court were inclined to rule the 14th Amendment could be interpreted that way there are two other bars. Article V requires that any amendment denying each State equal representation in the Senate requires every State to ratify it and there never has been a time that was the case. But even ignoring that, the 17th Amendment reaffirmed each State having two Senators.

It did take several decades before the Court started interpreting that the 14th Amendment incorporated the Bill of Rights so that they applied to States.
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« Reply #2 on: March 09, 2019, 10:10:08 pm »

I believe Canada and India's Supreme Courts have done this.
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« Reply #3 on: March 11, 2019, 07:16:53 pm »

But even ignoring that, the 17th Amendment reaffirmed each State having two Senators.
Yeah, the 17th almost seems to go out of its way to ensure a clear reaffirmation of this.
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« Reply #4 on: March 12, 2019, 04:26:33 pm »

Article V requires that any amendment denying each State equal representation in the Senate requires every State to ratify it and there never has been a time that was the case.

It has literally been the case with the 14th amendment as of 2003. Thats not a de-jure obstacle anymore. Its only a de-facto obstacle because we live in a Country where the court system is filled to the brim with activist judges who have no regard for following through with the laws set out by he constitution, especially in SCOTUS.
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RoboWop
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« Reply #5 on: March 12, 2019, 04:34:25 pm »

Article V requires that any amendment denying each State equal representation in the Senate requires every State to ratify it and there never has been a time that was the case.

It has literally been the case with the 14th amendment as of 2003. Thats not a de-jure obstacle anymore. Its only a de-facto obstacle because we live in a Country where the court system is filled to the brim with activist judges who have no regard for following through with the laws set out by he constitution, especially in SCOTUS.

Are you sincerely making the claim that court opinions are not law when you don't like the judges who write them?
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« Reply #6 on: April 10, 2019, 01:17:09 pm »

I am not a lawyer.

But I do wonder if, in theory, a part of the Constitution could be in violation of Common Law principles of equity and inalienable rights. The Constitution is the supreme law of the People of the United States as sovereign, but a sovereign's powers are necessarily limited by higher legal principles. There are certain things which no sovereign state should have the power to do. The holocaust was illegal, regardless of the laws and constitution of the Third Reich, and perpetrators were hanged for it at Nuremberg.

Portions of the Constitution respecting the institution of slavery should never have been legal, and if we were somehow to ratify an amendment re-instituting it, turning human beings into the property of others, it may be within the Common Law jurisdiction of a court to declare such a seizure to be illegal, and entitling such victims to remedies.

Then you have the matter of whether an international court of law could declare a portion of the constitution illegal.
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brucejoel99
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« Reply #7 on: April 11, 2019, 09:06:09 am »

I am not a lawyer.

But I do wonder if, in theory, a part of the Constitution could be in violation of Common Law principles of equity and inalienable rights. The Constitution is the supreme law of the People of the United States as sovereign, but a sovereign's powers are necessarily limited by higher legal principles. There are certain things which no sovereign state should have the power to do. The holocaust was illegal, regardless of the laws and constitution of the Third Reich, and perpetrators were hanged for it at Nuremberg.

Portions of the Constitution respecting the institution of slavery should never have been legal, and if we were somehow to ratify an amendment re-instituting it, turning human beings into the property of others, it may be within the Common Law jurisdiction of a court to declare such a seizure to be illegal, and entitling such victims to remedies.

Then you have the matter of whether an international court of law could declare a portion of the constitution illegal.

If the Constitution & common law are in conflict, then the Constitution overrides common law (just as it would with conflicting statutory law). No matter what a given interpretation of common law would be, if the wording of the Constitution or an amendment is in conflict, then said common law interpretation would be moot.

Plus, a treaty (which establish & authorize international courts) may not override the Constitution. The Constitution is "higher" federal law; the Constitution trumps international law. Just as the Constitution prevails over any inconsistent statute enacted by Congress or any inconsistent executive act taken by the President or (in theory, at least) any inconsistent decision of the judiciary, the Constitution prevails over any provision contained in international law that's inconsistent with a rule specified in the text of the Constitution.
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« Reply #8 on: April 11, 2019, 09:42:16 am »

I am not a lawyer.

But I do wonder if, in theory, a part of the Constitution could be in violation of Common Law principles of equity and inalienable rights. The Constitution is the supreme law of the People of the United States as sovereign, but a sovereign's powers are necessarily limited by higher legal principles. There are certain things which no sovereign state should have the power to do. The holocaust was illegal, regardless of the laws and constitution of the Third Reich, and perpetrators were hanged for it at Nuremberg.

Portions of the Constitution respecting the institution of slavery should never have been legal, and if we were somehow to ratify an amendment re-instituting it, turning human beings into the property of others, it may be within the Common Law jurisdiction of a court to declare such a seizure to be illegal, and entitling such victims to remedies.

Then you have the matter of whether an international court of law could declare a portion of the constitution illegal.

If the Constitution & common law are in conflict, then the Constitution overrides common law (just as it would with conflicting statutory law). No matter what a given interpretation of common law would be, if the wording of the Constitution or an amendment is in conflict, then said common law interpretation would be moot.

Plus, a treaty (which establish & authorize international courts) may not override the Constitution. The Constitution is "higher" federal law; the Constitution trumps international law. Just as the Constitution prevails over any inconsistent statute enacted by Congress or any inconsistent executive act taken by the President or (in theory, at least) any inconsistent decision of the judiciary, the Constitution prevails over any provision contained in international law that's inconsistent with a rule specified in the text of the Constitution.

The Constitution is the highest law of the United States, but does the United States have absolute power? What if a Constitutional amendment authorized a holocaust? Are there not higher principles of law here? Do the people of the United States have the power to commit mass murder?
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brucejoel99
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« Reply #9 on: April 11, 2019, 03:56:11 pm »

I am not a lawyer.

But I do wonder if, in theory, a part of the Constitution could be in violation of Common Law principles of equity and inalienable rights. The Constitution is the supreme law of the People of the United States as sovereign, but a sovereign's powers are necessarily limited by higher legal principles. There are certain things which no sovereign state should have the power to do. The holocaust was illegal, regardless of the laws and constitution of the Third Reich, and perpetrators were hanged for it at Nuremberg.

Portions of the Constitution respecting the institution of slavery should never have been legal, and if we were somehow to ratify an amendment re-instituting it, turning human beings into the property of others, it may be within the Common Law jurisdiction of a court to declare such a seizure to be illegal, and entitling such victims to remedies.

Then you have the matter of whether an international court of law could declare a portion of the constitution illegal.

If the Constitution & common law are in conflict, then the Constitution overrides common law (just as it would with conflicting statutory law). No matter what a given interpretation of common law would be, if the wording of the Constitution or an amendment is in conflict, then said common law interpretation would be moot.

Plus, a treaty (which establish & authorize international courts) may not override the Constitution. The Constitution is "higher" federal law; the Constitution trumps international law. Just as the Constitution prevails over any inconsistent statute enacted by Congress or any inconsistent executive act taken by the President or (in theory, at least) any inconsistent decision of the judiciary, the Constitution prevails over any provision contained in international law that's inconsistent with a rule specified in the text of the Constitution.

The Constitution is the highest law of the United States, but does the United States have absolute power? What if a Constitutional amendment authorized a holocaust? Are there not higher principles of law here? Do the people of the United States have the power to commit mass murder?

The Constitution has absolute power over the domestic law of the United States. So, if the Constitution authorizes it, then it is legal law, regardless of the content of such an amendment or any moral judgment about said amendment. Whether the content of the Constitution is good or bad is considered irrelevant insofar as the validity thereof is concerned.
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tack50
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« Reply #10 on: April 12, 2019, 07:20:01 am »

I am not a lawyer.

But I do wonder if, in theory, a part of the Constitution could be in violation of Common Law principles of equity and inalienable rights. The Constitution is the supreme law of the People of the United States as sovereign, but a sovereign's powers are necessarily limited by higher legal principles. There are certain things which no sovereign state should have the power to do. The holocaust was illegal, regardless of the laws and constitution of the Third Reich, and perpetrators were hanged for it at Nuremberg.

Portions of the Constitution respecting the institution of slavery should never have been legal, and if we were somehow to ratify an amendment re-instituting it, turning human beings into the property of others, it may be within the Common Law jurisdiction of a court to declare such a seizure to be illegal, and entitling such victims to remedies.

Then you have the matter of whether an international court of law could declare a portion of the constitution illegal.

If the Constitution & common law are in conflict, then the Constitution overrides common law (just as it would with conflicting statutory law). No matter what a given interpretation of common law would be, if the wording of the Constitution or an amendment is in conflict, then said common law interpretation would be moot.

Plus, a treaty (which establish & authorize international courts) may not override the Constitution. The Constitution is "higher" federal law; the Constitution trumps international law. Just as the Constitution prevails over any inconsistent statute enacted by Congress or any inconsistent executive act taken by the President or (in theory, at least) any inconsistent decision of the judiciary, the Constitution prevails over any provision contained in international law that's inconsistent with a rule specified in the text of the Constitution.

The Constitution is the highest law of the United States, but does the United States have absolute power? What if a Constitutional amendment authorized a holocaust? Are there not higher principles of law here? Do the people of the United States have the power to commit mass murder?

Yes, the US would be sovereign and have the power to commit a genocide if passed by a constitutional ammendment. At least legally.

In practice the US would still be sanctioned by and subject to international laws and courts it's still a part of (though those rarely, if ever, actually force countries to do something and the US could just unilaterally leave).
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brucejoel99
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« Reply #11 on: April 12, 2019, 08:10:55 am »

I am not a lawyer.

But I do wonder if, in theory, a part of the Constitution could be in violation of Common Law principles of equity and inalienable rights. The Constitution is the supreme law of the People of the United States as sovereign, but a sovereign's powers are necessarily limited by higher legal principles. There are certain things which no sovereign state should have the power to do. The holocaust was illegal, regardless of the laws and constitution of the Third Reich, and perpetrators were hanged for it at Nuremberg.

Portions of the Constitution respecting the institution of slavery should never have been legal, and if we were somehow to ratify an amendment re-instituting it, turning human beings into the property of others, it may be within the Common Law jurisdiction of a court to declare such a seizure to be illegal, and entitling such victims to remedies.

Then you have the matter of whether an international court of law could declare a portion of the constitution illegal.

If the Constitution & common law are in conflict, then the Constitution overrides common law (just as it would with conflicting statutory law). No matter what a given interpretation of common law would be, if the wording of the Constitution or an amendment is in conflict, then said common law interpretation would be moot.

Plus, a treaty (which establish & authorize international courts) may not override the Constitution. The Constitution is "higher" federal law; the Constitution trumps international law. Just as the Constitution prevails over any inconsistent statute enacted by Congress or any inconsistent executive act taken by the President or (in theory, at least) any inconsistent decision of the judiciary, the Constitution prevails over any provision contained in international law that's inconsistent with a rule specified in the text of the Constitution.

The Constitution is the highest law of the United States, but does the United States have absolute power? What if a Constitutional amendment authorized a holocaust? Are there not higher principles of law here? Do the people of the United States have the power to commit mass murder?

Yes, the US would be sovereign and have the power to commit a genocide if passed by a constitutional ammendment. At least legally.

In practice the US would still be sanctioned by and subject to international laws and courts it's still a part of (though those rarely, if ever, actually force countries to do something and the US could just unilaterally leave).

Yeah, the US would refuse to comply with any decision made by an international court. And as a permanent member of the Security Council, the US would be able to block any enforcement mechanism attempted by the UN (as well as any sanctioning, at least by the UN).
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« Reply #12 on: April 15, 2019, 07:32:00 pm »

The combination of the 5th Amendment to the US Constitution + The initial Constitution ban on bills of Attainder (for both states and the federal government) + the lack of US Constitution specification on how someone could become a slave would have been used to declare slavery unconstitutional in the 1790s had we not had an activist judiciary.
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« Reply #13 on: April 15, 2019, 11:18:04 pm »

In particular, I'm looking for actual serious insight from the more legally knowledgeable members of the community.

Amendments to the Constitution immediately annul/limit/qualify other parts of the constitution, of course, but has there ever been an instance where it took decades after the passage of an amendment for the Judicial system to determine that the text of that amendment overrode some portion of the original constitution?

Like, as a specific example, court the Supreme Court use the "One Man One Vote" principle, based on the 14th Amendment, to declare the current apportionment method of the Senate to be unconstitutional?

Has anything on that scale ever happened before?

No, because the Constitution itself clearly states how many Senators from each state there shall be, and there is no question as the intent of the Framers as to what they wished and why they wished it.

Perhaps a better example would be an amendment to the Constitution that allowed states to apportion Representatives in any way they saw fit, without specifically mentioning or repudiating Baker v. Carr or Reynolds v. Sims.  I would think that the Amendment would take precedence over earlier parts of the Constitution if two (2) sections came in conflict, as the later amendment would represent the more current popular will.
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« Reply #14 on: April 16, 2019, 12:02:35 am »

In particular, I'm looking for actual serious insight from the more legally knowledgeable members of the community.

Amendments to the Constitution immediately annul/limit/qualify other parts of the constitution, of course, but has there ever been an instance where it took decades after the passage of an amendment for the Judicial system to determine that the text of that amendment overrode some portion of the original constitution?

Like, as a specific example, court the Supreme Court use the "One Man One Vote" principle, based on the 14th Amendment, to declare the current apportionment method of the Senate to be unconstitutional?

Has anything on that scale ever happened before?

No, because the Constitution itself clearly states how many Senators from each state there shall be, and there is no question as the intent of the Framers as to what they wished and why they wished it.

Perhaps a better example would be an amendment to the Constitution that allowed states to apportion Representatives in any way they saw fit, without specifically mentioning or repudiating Baker v. Carr or Reynolds v. Sims.  I would think that the Amendment would take precedence over earlier parts of the Constitution if two (2) sections came in conflict, as the later amendment would represent the more current popular will.


Plus the 17th amendment reaffirmed the two senators per state rule so the 14th canít be used to overturn that rule
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« Reply #15 on: April 16, 2019, 07:22:58 pm »

The combination of the 5th Amendment to the US Constitution + The initial Constitution ban on bills of Attainder (for both states and the federal government) + the lack of US Constitution specification on how someone could become a slave would have been used to declare slavery unconstitutional in the 1790s had we not had an activist judiciary.
The Federal Constitution had no need to specify as how someone became bound to a term of service would be defined under State law, not Federal. Moreover, you show an appalling lack of knowledge of the scope and purpose of a bill of Attainder.
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« Reply #16 on: April 18, 2019, 12:38:33 pm »

I am not a lawyer.

But I do wonder if, in theory, a part of the Constitution could be in violation of Common Law principles of equity and inalienable rights. The Constitution is the supreme law of the People of the United States as sovereign, but a sovereign's powers are necessarily limited by higher legal principles. There are certain things which no sovereign state should have the power to do. The holocaust was illegal, regardless of the laws and constitution of the Third Reich, and perpetrators were hanged for it at Nuremberg.

Portions of the Constitution respecting the institution of slavery should never have been legal, and if we were somehow to ratify an amendment re-instituting it, turning human beings into the property of others, it may be within the Common Law jurisdiction of a court to declare such a seizure to be illegal, and entitling such victims to remedies.

Then you have the matter of whether an international court of law could declare a portion of the constitution illegal.

If the Constitution & common law are in conflict, then the Constitution overrides common law (just as it would with conflicting statutory law). No matter what a given interpretation of common law would be, if the wording of the Constitution or an amendment is in conflict, then said common law interpretation would be moot.

Plus, a treaty (which establish & authorize international courts) may not override the Constitution. The Constitution is "higher" federal law; the Constitution trumps international law. Just as the Constitution prevails over any inconsistent statute enacted by Congress or any inconsistent executive act taken by the President or (in theory, at least) any inconsistent decision of the judiciary, the Constitution prevails over any provision contained in international law that's inconsistent with a rule specified in the text of the Constitution.

The Constitution is the highest law of the United States, but does the United States have absolute power? What if a Constitutional amendment authorized a holocaust? Are there not higher principles of law here? Do the people of the United States have the power to commit mass murder?

Yes, the US would be sovereign and have the power to commit a genocide if passed by a constitutional ammendment. At least legally.

In practice the US would still be sanctioned by and subject to international laws and courts it's still a part of (though those rarely, if ever, actually force countries to do something and the US could just unilaterally leave).

I guess, any sovereign has the power to do whatever it wants, as long as it wins.

If the US were to fall (either by external force or through revolution), any individual unjustly deprived of life, liberty, or property could theoretically bring suit under courts established by the revolution or by external powers. And I would think those courts would be free to revert to Common Law (as well as precedent set by other international courts and tribunals) for many remedies.
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« Reply #17 on: April 18, 2019, 05:53:54 pm »

The only instance I can see this applying to is during the amending process where changes to the constitution void/repeal other parts, which technically then make those older parts unconstitutional.
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« Reply #18 on: April 18, 2019, 09:32:20 pm »

The Constitution is the highest law of the United States, but does the United States have absolute power? What if a Constitutional amendment authorized a holocaust? Are there not higher principles of law here? Do the people of the United States have the power to commit mass murder?

It would self evidently be the duty of external bodies or "non-legal actors" to try to prevent this.

If the US were to fall (either by external force or through revolution), any individual unjustly deprived of life, liberty, or property could theoretically bring suit under courts established by the revolution or by external powers. And I would think those courts would be free to revert to Common Law (as well as precedent set by other international courts and tribunals) for many remedies.

Similarly, it's self evident that, in situation of invasion or revolution, life, liberty, and property are more likely to be infringed upon than before.
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« Reply #19 on: April 19, 2019, 02:10:48 pm »

The Constitution is the highest law of the United States, but does the United States have absolute power? What if a Constitutional amendment authorized a holocaust? Are there not higher principles of law here? Do the people of the United States have the power to commit mass murder?

It would self evidently be the duty of external bodies or "non-legal actors" to try to prevent this.

If the US were to fall (either by external force or through revolution), any individual unjustly deprived of life, liberty, or property could theoretically bring suit under courts established by the revolution or by external powers. And I would think those courts would be free to revert to Common Law (as well as precedent set by other international courts and tribunals) for many remedies.

Similarly, it's self evident that, in situation of invasion or revolution, life, liberty, and property are more likely to be infringed upon than before.

This is all purely hypothetical, of course. But history dictates that no Constitution or State is everlasting. The United States will eventually fall, either by external force or (much, much more likely in my opinion) from within. Whether that collapse results in a nightmare like Russia or France, or an evolution into a State or States that better protect liberty, such as England/Britain, depends on the characters of those revolutionaries.

That we as a nation have persisted under one Constitution for a quarter of a millennium is remarkable, but the United States didn't invent liberty*, and the struggle for liberty will continue with or without it.

*The notion is, in fact laughable given that this nation had as one of its founding principles the right to hold human beings as property, completely stripped of all the rights our revolution claimed were inalienable.
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« Reply #20 on: April 19, 2019, 03:20:03 pm »

If the US were to fall (either by external force or through revolution), any individual unjustly deprived of life, liberty, or property could theoretically bring suit under courts established by the revolution or by external powers. And I would think those courts would be free to revert to Common Law (as well as precedent set by other international courts and tribunals) for many remedies.

Similarly, it's self evident that, in situation of invasion or revolution, life, liberty, and property are more likely to be infringed upon than before.

This is all purely hypothetical, of course. But history dictates that no Constitution or State is everlasting. The United States will eventually fall, either by external force or (much, much more likely in my opinion) from within. Whether that collapse results in a nightmare like Russia or France, or an evolution into a State or States that better protect liberty, such as England/Britain, depends on the characters of those revolutionaries.

That we as a nation have persisted under one Constitution for a quarter of a millennium is remarkable, but the United States didn't invent liberty*, and the struggle for liberty will continue with or without it.

*The notion is, in fact laughable given that this nation had as one of its founding principles the right to hold human beings as property, completely stripped of all the rights our revolution claimed were inalienable.
[/quote]

I'm not referring to anything specific in the United States. Just that I would view the event of an invasion or revolution as likely resulting in less freedom rather than more. Even "liberal" revolutions can result in Terrors (France), and even invasions by democratic powers may fail to yield a great flowering of freedom (US->Vietnam, Iraq). The evolution you speak of now was not in your original point.

If we want to particularize it to the United States, we would have to ask the nature of the power to attack us or the force to overthrow us, and for the time being that is not likely to result in greater personal freedom.
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« Reply #21 on: April 19, 2019, 05:21:51 pm »

I'm not referring to anything specific in the United States. Just that I would view the event of an invasion or revolution as likely resulting in less freedom rather than more. Even "liberal" revolutions can result in Terrors (France), and even invasions by democratic powers may fail to yield a great flowering of freedom (US->Vietnam, Iraq). The evolution you speak of now was not in your original point.

If we want to particularize it to the United States, we would have to ask the nature of the power to attack us or the force to overthrow us, and for the time being that is not likely to result in greater personal freedom.

Honestly, having studied history, how a state fares post-revolution has more than anything else to do with what that society looked like before revolution.  Revolutions in England and the United States succeeded (with respect to liberty and individual rights) because those societies had already laid the groundwork for liberty and individual rights. Russia had been dominated by despotism since the Mongols, and the Soviet regime was just as despotic. In fact, the Russian Revolution was no revolution at all.

Iraq is representative of another principle: if the people of a country accept a brutal tyrant as their ruler, the most likely reason is they fear a much worse alternative should he be deposed.
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