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Preface to the Second Edition
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xi
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Preface to the First Edition
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xv
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Prologue: The Affordable Care Act and Other Vignettes
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xix
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Introduction: The Dynamic Constitution
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1
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History
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2
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Original Constitutional Design
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5
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The Constitution as Higher Law: Foundations of Judicial Review
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10
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A Marbury v. Madison: An Enduring Symbol of Judicial Power
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12
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Politics and Judicial Review
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17
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A Preliminary Perspective on How the Supreme Court Interprets the Constitution
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19
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A Brief History of Judicial Review
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24
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The Supreme Court Today
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33
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An Outline of What Is to Come
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37
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Part I: Individual Rights under the Constitution
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1. Freedom of Speech
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41
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The Foundations of Modern Doctrine
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42
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Proximate Origins of Modern Doctrine
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44
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Expressive Conduct
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54
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Shocking and Offensive Speech
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58
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Remaining Unprotected Categories, Including Obscenity
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59
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Commercial Speech
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63
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Campaign Finance and Political Advertising
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66
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The Broadcast Media
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71
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Freedom to Associate and Not to Associate
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73
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Concluding Note
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76
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2. Freedom of Religion
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77
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Introduction to the Establishment Clause
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79
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Religion in the Public Schools
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82
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Governmental Aid to Religious Institutions
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85
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Symbolic Support for Religion
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89
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The Free Exercise Clause
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92
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Voluntary Governmental Accommodations of Religion
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97
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Tensions between the Free Exercise and Establishment Clauses
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98
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3. Protection of Economic Liberties
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101
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Early History
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105
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The Fourteenth Amendment
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108
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Substantive Due Process
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111
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Modern Contracts Clause Doctrine
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118
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The Takings Clause
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119
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Concluding Thoughts
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123
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4. Fundamental Rights “Enumerated” in the Bill of Rights
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125
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Incorporation of the Bill of Rights against the States
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127
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Enumerated Rights to Fair Procedures in Criminal Cases
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130
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Time, Elections, and Change
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134
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The Law on the Books versus the Law in Practice
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135
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The Eighth Amendment Prohibition against Cruel and Unusual Punishment
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138
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The Second Amendment and the “Right to Keep and Bear Arms”
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143
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5. Equal Protection of the Laws
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149
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Equal Protection and the Constitution
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152
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Rational Basis Review
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156
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Race and the Constitution: Invidious Discrimination
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159
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What Did Brown Accomplish?
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168
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Race and the Constitution: Disparate Impact
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169
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Affirmative Action
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171
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Gender and the Constitution
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179
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Discrimination against Gays and Lesbians
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184
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Conclusion
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188
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6. “Unenumerated” Fundamental Rights
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191
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The Idea of Fundamental Rights
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193
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Voting Rights: A Conceptual Introduction
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195
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Voting Rights: The “One-Person, One-Vote” Cases
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196
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Beyond One Person, One Vote
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198
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Majority-Minority Districting
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201
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Equality in the Counting of Votes
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203
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Sexual Privacy or Autonomy
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207
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Roe v. Wade and Abortion Rights
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209
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Gay Rights
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214
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Rights Involving Death and Dying
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219
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Fundamental Rights Involving the Family
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221
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Conclusion
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223
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Part II: The Constitutional Separation of Powers
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7. The Powers of Congress
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227
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Elements of the “Original Understanding”
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230
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Doctrinal and Conceptual History
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234
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Crisis and Revision
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236
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A Course Correction of Uncertain Scope
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238
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The Necessary and Proper Clause
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242
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The Spending Power
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243
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Congressional Regulation of State and Local Governments
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245
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Coercion through Spending
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248
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Concluding Thoughts
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251
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8. Executive Power
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253
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The Youngstown Case
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256
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Foreign Affairs
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260
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Delegated Power in Domestic Affairs
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263
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Legislative Vetoes and Line-Item Vetoes
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266
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Appointments and Removals
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270
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9. Judicial Power
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275
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The Character of Judicial Power
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278
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Limits on Judicial Power
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283
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Anxieties about Judicial Power
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289
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Part III: Further Issues of Constitutional Structure and Individual Rights
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10. Structural Limits on State Power and Resulting Individual Rights
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301
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How Federal Power and Federal Law Can Restrict State Power
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302
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The Privileges and Immunities Clause
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304
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The “Dormant” Commerce Clause
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308
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The States as “Market Participants”
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312
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Conclusion
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314
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11. The Constitution in War and Emergency
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315
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The Power to Initiate War
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320
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Federal Powers during Wartime
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323
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War and Individual Rights
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324
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The Constitution and the “War on Terror”
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328
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Conclusion
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333
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12. The Reach of the Constitution and Congress's Enforcement Power
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335
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State Action Doctrine
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336
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The Paucity of “Positive” Fundamental Rights
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339
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Congressional Power to “Enforce” the Reconstruction Amendments
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345
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13. Conclusion
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353
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Appendix: The Constitution of the United States
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363
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