Congress in comparative perspective parliamentary supplements (or why democracies need more than parliaments)

Boston University Law Review

Volumn 89, Issue 2, 2009, Pages 795-826

  Scheppele, Kim Lane ^a,b  

^a University Center for Human Values   (United States)

^b PRINCETON UNIVERSITY   (United States)

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EID: 67649576349     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (210)

1. 1 This is not to say that this is the first era of crisis. In a Harvard Law Review article in 1899, the sense that Congress was dysfunctional came through clearly:
2. It is of course true that a parliament is and must be the legislative branch of government. But if such a body has unlimited power of legislation, it will sooner or later reduce not only the executive but the very society which has elected it to be the mere instruments of the caprices and passions of its members; and it will arrive at this result by means of its committees, whether elected or appointed by a speaker. The vital question to be resolved is how can its legislation be limited and guided with a view to the public welfare.
3. Gamaliel Bradford, The Permanence of Parliamentary Government, 13 HARV. L. REV. 256, 262 (1899).
4. 2 See Barbara Sinclair, Question: What's Wrong with Congress? Answer: It's a Democratic Legislature, 89 B. U. L. REV. 387, 387 (2009) (listing the failures usually attributed to Congress).
5. 3 The actual history is surely muddier than the official self-congratulatory one. See generally MARK BRANDON, FREE in the WORLD (1998) (suggesting the Civil War was a constitutional failure);
6. HAROLD RELYEA, A BRIEF HISTORY of EMERGENCY POWERS in the UNITED STATES (2005) (detailing the ways the country has responded to threats with extraordinary measures from the beginning of its history).
7. 4 WERNER SOMBART, WHY IS THERE NO SOCIALISM in the UNITED STATES?, at xix-xxiii (Patricia M. Hocking and C. T. Husbands trans., 1976) (chronicling how certain unique aspects of American society have reduced the threats of radicalism);
8. WHY IS THERE No SOCIALISM in the UNITED STATES? 23 (Jean Heffer and Jeanine Rovet eds., 1988) (comparing the lack of strong socialist movements in the United States with the experience of European nations that have generally had strong socialist movements).
9. 5 See, e.g., MICHAEL SCHUDSON, WATERGATE in AMERICAN MEMORY: HOW WE REMEMBER, FORGET, and RECONSTRUCT the PAST 144 (1988) (describing Gerald Ford's reaction to the Watergate scandal).
10. 6 Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 729 (2000).
11. 7 See generally THOMAS MANN and NORMAN ORNSTEIN, THE BROKEN BRANCH: HOW CONGRESS Is FAILING AMERICA and HOW to GET IT BACK on TRACK (2d ed. 2008).
12. 8 Robert D. Putnam, Susan J. Pharr and Russell J. Dalton, Introduction: What's Troubling the Trilateral Democracies?, in DISAFFECTED DEMOCRACIES: WHAT'S TROUBLING the TRILATERAL COUNTRIES? 3, 19-20 (Susan J. Pharr and Robert D. Putnam eds., 2000).
13. 9 Id. (showing that only Belgium, Italy, and the Netherlands experienced increases in voter confidence).
14. 10 Id.
15. 11 The term "parliamentary governance" covers the range of governmental types in which the legislature is meant to be the central democratic body in a democratic government. Michael Mezey, New Perspectives on Parliamentary Systems: A Review Article, 19 LEGIS. STUD. Q. 429, 430 (1994). To describe the central legislative body of a national government, I will use "legislature" and "parliament" interchangeably.
16. 12 David Dyzenhaus, "Now The Machine Runs Itself": Carl Schmitt on Hobbes and Kelsen, 16 CARDOZO L. REV. 1, 3 (1994) ("[T]hrough parliamentarianism liberalism can claim, by an appeal to representation, democratic legitimacy.").
17. 13 Christopher S. Elmendorf, Advisory Counterparts to Constitutional Courts, 56 DUKE L. J. 953, 958 (2007).
18. 14 The classic statement is found in ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT at the BAR of POLITICS 16 (1962): "The root difficulty is that judicial review is a counter-majoritarian force in our system."
19. 15 For a review of the vast literature that has followed this accusation, see Mark Graber, The Countermajoritarian Difficulty: From Courts to Congress to Constitutional Order, 4 ANN. REV. L. and SOC. SCI. 361, 363 (2008).
20. 16 Much of the defense of parliaments as the key bodies in constitutional democracies rests on the assertion that they are representative, which in turn rests on the claim that elections work to ensure representation. G. BINGHAM POWELL, JR., ELECTIONS as INSTRUMENTS of DEMOCRACY: MAJORITARIAN and PROPORTIONAL VISIONS 3-4 (2000).
21. 17 Jeremy Waldron's defense of parliaments over courts focuses exclusively on parliaments' roles as lawmakers. JEREMY WALDRON, THE DIGNITY of LEGISLATION 1 (1999). But, of course, parliaments do more than this.
22. 18 RICHARD FENNO, HOME STYLE: HOUSE MEMBERS in THEIR DISTRICTS 31 (1978).
23. 19 DAVID MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 6 (1975).
24. 20 Juan J. Linz, The Perils of Presidentialism, 1 J. DEMOCRACY 51, 52 (1990).
25. 21 Fred Riggs has documented that of the thirty-three "third world" countries that adopted presidentialist constitutions, nearly all have had catastrophic failure, characterized by coups, martial law, constitutional displacement, or collapse. Fred W. Riggs, The Survival of Presidentialism in America: Para-Constitutional Practices, 9 INT'L POL. SCI. REV. 247, 249 (1988).
26. At the same time, two-thirds of the forty-three "third world" countries that had parliamentarist systems held up under pressure. Id. Riggs further acknowledges that "the democratic constitutions found in Western Europe, all of which were established after the American Revolution, uniformly rejected presidentialism in favor of some kind of parliamentarism. " Id.
27. 22 RICHARD ROSE, WILLIAM MISHLER and CHRISTIAN HAERPHER, DEMOCRACY and ITS ALTERNATIVES: UNDERSTANDING POST-COMMUNIST SOCIETIES 25 (1998) ("The presence or absence of competitive elections is the simplest definition of democracy.").
28. 23 Alain Touraine begins his discussion of democracy by noting that "[t]he first requirement of democracy is that its rulers be representative. Moreover. democracy cannot be representative unless it is pluralistic." ALAIN TOURAINE, WHAT is DEMOCRACY? 26-27 (David Macey trans., 1997). But he believes that this is only the first of a number of elements required of democracies. The others are that voters see themselves as citizens and that state power is limited by law. Id. at 27. In his view, different sorts of democracies evolve out of the privileging of each of these elements over the others. Id. at 29-30.
29. 24 POWELL, supra note 16, at 4 ("There is a widespread consensus that the presence of competitive elections, more than any other feature, identifies the contemporary nation-state as a democratic political system.").
30. 25 "Managed democracy" provides an illuminating example of elections without democratic legitimacy. In "managed democracies, " elections are held, but the elected governments use the power of incumbency to manipulate public opinion to maintain their own positions. The idea has been variously applied to the United States under George W. Bush and to post-communist Russia under Vladimir Putin. SHELDON WOLIN, DEMOCRACY INCORPORATED: MANAGED DEMOCRACY and the SPECTER of INVERTED TOTALITARIANISM 141-42 (2008) (discussing managed democracy in the U. S.);
31. Nicolay Petrov, Scholar-in-Residence, Carnegie Moscow Center, Address at the Carnegie Endowment for International Peace Meeting: The Essence of Putin's Managed Democracy (Oct. 18, 2005), summary available at http://www.carnegieendowment.org/events/index.cfm?fa=eventDetail&id=819 (discussing managed democracy in Russia).
32. 26 Of course, the experience of the Bush Administration in bringing democracy to autocratic countries through military means has, by now, been exposed for the overly optimistic vision underlying it:
33. Getting the United States back onto a better track with regard to democracy promotion will not be easy. The damage that the Bush administration has wrought in this domain is considerable. Bush policies have engendered powerful suspicions abroad about the very idea both of the United States as a democracy promoter and of democracy promotion itself.
34. THOMAS CAROTHERS, CARNEGIE ENDOWMENT for INT'L PEACE, U. S. DEMOCRACY PROMOTION DURING and AFTER BUSH 32 (2007), available at http://www.carnegieendowment.org/files/democracy-promotion-after-bush-final.pdf.
35. 27 JUAN LINZ and ALFRED STEPAN, PROBLEMS of DEMOCRATIC TRANSITION and CONSOLIDATION: SOUTHERN EUROPE, SOUTH AMERICA, and POST-COMMUNIST EUROPE 87-150 (1996).
36. 28 Id. at 151-234 (discussing democratic transformations in Uruguay, Brazil, Argentina, and Chile).
37. 29 Id. at 235-458 (discussing democratic transformations in Poland, Hungary, Czechoslovakia, Bulgaria, Romania, Russia, Estonia, and Latvia).
38. 30 DEMOCRATIZATION in AFRICA, at ix (Larry Diamond and Marc F. Planner eds., 1999).
39. 31 DEMOCRACY in EAST ASIA, at xxvi (Larry Diamond and Marc F. Planner eds., 1998).
40. 32 Abdou Filali-Ansary, Muslims and Demcracy, in THE GLOBAL DIVERGENCE of DEMOCRACIES 37 (Larry Diamond and Marc F. Planner eds., 2001).
41. 33 Since 9/11, this process has arguably been reversed, despite the Bush Administration's claims that it wanted to bring democracy to the world: "The idealistic fervor and selfconfident messianism that have infused American declarations of an armed crusade for democracy betray a dangerous disregard for the prospect of tragedy that Weber said inevitably accompanies politics when it turns to violence as a means for achieving its ends." JOHN BRENKMAN, THE CULTURAL CONTRADICTIONS of DEMOCRACY: POLITICAL THOUGHT SINCE SEPTEMBER 11, at 22 (2007) (citing MAX WEBER, Politics as Vocation, in FROM MAX WEBER: ESSAYS in SOCIOLOGY (H. H. Gerth and C. Wright Mills eds. and trans., 1946)).
42. 34 See, e.g., JON ELSTER, CLAUS OFFE and ULRICH K. PREUSS, INSTITUTIONAL DESIGN in POST-COMMUNIST SOCIETIES: REBUILDING the SHIP at SEA 3-6 (1998) (discussing the transition in Bulgaria, the Czech Republic, Hungary, and Slovakia);
43. LINZ and STEPAN, supra note 27, at 9 (arguing for the need of a strong civil society to aid in the transition);
44. GUILLERMO O'DONNELL and PHILLIPPE C. SCHMITTER, TRANSITIONS from AUTHORITARIAN RULE: TENTATIVE CONCLUSIONS ABOUT UNCERTAIN DEMOCRACIES 3-14 (1986);
45. Laurence Whitehead, International Aspects of Democratization, in TRANSITIONS from AUTHORITARIAN RULE: COMPARATIVE PERSPECTIVES 3, 3-10 (Guillermo O'Donnell, Phillippe C. Schmitter and Laurence Whitehead eds., 1986) (giving a historical overview of democratic transitions in the second half of the twentieth century).
46. 35 See, e.g., LARRY DIAMOND, DEVELOPING DEMOCRACY: TOWARD CONSOLIDATION 3-18 (1999) (proposing a model democracy and assessing various nations' governments in light of that standard);
47. LINZ and STEPAN, supra note 27, at 6 (defining consolidated democracy as including an attitudinal piece, a behavioral piece, and a constitutional piece);
48. Larry Diamond, Introduction: In Search of Consolidation, in CONSOLIDATING the THIRD WAVE DEMOCRACIES: THEMES and PERSPECTIVES, at xiii, xvi-xvii (Larry Diamond, Marc Plattner, Yun-Han Chu and Hung-Mao Tien eds., 1997) ("[T]he bulk of our contributors have converged on an understanding of democratic consolidation as a discernible process by which the rules, institutions, and constraints of democracy come to constitute 'the only game in town, ' the one legitimate framework for seeking and exercising political power.");
49. Klaus von Beyme, Institutional Engineering and Transition to Democracy, in 1 DEMOCRATIC CONSOLIDATION in EASTERN EUROPE: INSTITUTIONAL ENGINEERING 3, 6-14, 17-22 (Jan Zielonka ed., 2001) (discussing constitutional design and the development of electoral law as steps in the transition from authoritarianism to democracy).
50. 36 See, e.g., GIOVANNI SARTORI, COMPARATIVE CONSTITUTIONAL ENGINEERING: AN INQUIRY into STRUCTURES, INCENTIVES and OUTCOMES 83-142 (1994) (comparing new democracies' experiences with presidentialism, parliamentarism, and semi-presidentialism to their American, British, and French counterparts);
51. Constitution Drafting Committee, Federal Republic of Nigeria, Report on the Draft Constitution of Nigeria, in PARLIAMENTARY VERSUS PRESIDENTIAL GOVERNMENT 181, 181-86 (Arend Lijphart ed., 1992) (examining parliamentarist and presidentialist approaches in the Nigerian constitution);
52. J. P. A. Gruijters, The Case for a Directly Elected Prime Minister in the Netherlands, in PARLIAMENTARY VERSUS PRESIDENTIAL GOVERNMENT, supra, at 191, 191-93 (evaluating parliamentarist changes in light of British precedent);
53. International Forum, Israel-Diaspora Institute, Direct Election of the Prime Minister, in PARLIAMENTARY VERSUS PRESIDENTIAL GOVERNMENT, supra, at 194, 194-200 (considering parliamentarist versus presidentialist approaches in a direct election for the prime minister);
54. Vasant Sathe, For a Directly Elected President of India, in PARLIAMENTARY VERSUS PRESIDENTIAL GOVERNMENT, supra, at 187, 187-90 (considering constitutional reform in light of parliamentarist and presidentialist examples);
55. Kurt von Mettenheim, Introduction: Presidential Institutions and Democratic Politics, in PRESIDENTIAL INSTITUTIONS AND DEMOCRATIC POLITICS: COMPARING REGIONAL and NATIONAL CONTEXTS 1, 1-2 (Kurt von Mettenheim ed., 1997) (arguing in favor of democratization along the presidentialist rather than the parliamentarist model).
56. 37 GIUSEPPE DI PALMA, TO CRAFT DEMOCRACIES: AN ESSAY on DEMOCRATIC TRANSITIONS 113 (1990).
57. 38 Belarus, despite being an authoritarian state, still holds regular (if rigged) elections for both President and Parliament.
58. See Ethan S. Burger and Viktar Minchuk, Alyaksandr Lukashenko's Consolidation of Power, in PROSPECTS for DEMOCRACY in BELARUS 29, 31-33 (Joerg Forbrig, David Marples and Pavol Demes eds., 2006).
59. The Organization for Security and Cooperation in Europe ("OSCE") deployed election monitors to Uzbekistan for the 1999 and 2004 parliamentary elections as well as for the 2007 presidential elections. Office for Democratic Institutions and Human Rights - Elections - Uzbekistan, http://www.osce.org/odihr-elections/14681.html (last visited Mar. 6, 2009).
60. Even though OSCE did not find the elections free and fair, they noted that there were repeated attempts to improve the election laws to make elections seem more open and democratic.
61. Id. For example, they observed that changes to the election laws between 2000 and 2007 allowed social groups to nominate candidates for President but also changed the candidate registration rules to make it nearly impossible for such candidates to register. Office for DEMOCRATIC INST. and HUMAN RIGHTS, OFFICE for SEC. and COOPERATION in EUR., OSCE/ODIHR LIMITED ELECTION OBSERVATION MISSION FINAL REPORT 1 (2008), available at http://www.osce.org/documents/ odihr/2008/04/30832-en.pdf.
62. These efforts to tinker with election laws indicate that governments are anxious to appear as if they have the trappings of democratic elections, even when they do not. If democracy were not such a normatively indispensible criterion for government these days, such persistent tinkering would be hard to explain.
63. 39 BRUCE ACKERMAN, THE FUTURE of LIBERAL REVOLUTION 46-68 (1992) (arguing for the importance of early constitutional drafting in transitional societies and also for the normal politics that follows to make a clean break with the past without engaging in retribution);
64. RALF DAHRENDORF, REFLECTIONS on the REVOLUTION in EUROPE 86-105 (1990) (describing transitions as involving the "hour of the lawyer" to draft constitutions, the "hour of the politician" to conduct normal politics and the "hour of the citizen" to build civil society to underwrite both the constitution and normal politics).
65. 40 Arendt Lijphart is perhaps the most famous for working out the grid of variables by which democratic countries can be measured and classified as either Westminster democracies or "consensual" democracies. See AREND LIJPHART, PATTERNS of DEMOCRACY: GOVERNMENT FORMS and PERFORMANCE in THIRTY-SIX COUNTRIES 2-3 (1999) (documenting ten institutional differences between the two models).
66. 41 Montesquieu famously described this tripartite division. See CHARLES de SECOND at MONTESQUIEU, THE SPIRIT of the LAWS 156 (Anne M. Cohler, Basia Carolyn Miller and Harold Samuel Stone eds. and trans., Cambridge Univ. Press 1989) (1748). Even today, the division is commonly used as an exhaustive description of the powers of government. See, e.g., Victoria Nourse, The Vertical Separation of Powers, 49 DUKE L. J. 749, 754 (1999) ("When lawyers and judges write about constitutional structure, they typically reach out to the terms 'executive, ' 'judicial, ' and 'legislative' and seek to define and describe them, and thus to cabin them, as function. " (quoting Martin H. Redish and Elizabeth J. Cisar, "If Angels Were to Govern": The Need for Pragmatic Formalism in Separation of Powers Theory, 41 DUKE L. J. 449, 479 (1991))).
67. 42 See DIAMOND, supra note 35, at 64-67.
68. 43 See id. at 67 ("Democracy can be consolidated only when no significant collective actors challenge the legitimacy of democratic institutions or regularly violate its constitutional norms, procedures, and laws.");
69. DI PALMA, supra note 37, at 15-16 (1990) (pronouncing an objective definition of democracy with "emphasis... on free and universal suffrage in a context of civil liberties, on competitive parties, on the selection of alternative candidates for office, and on the presence of political institutions that regulate and guarantee the roles of government opposition");
70. Stephen Hansen, Defining Democratic Consolidation, in POSTCOMMUNISM and the THEORY of DEMOCRACY 126-51 (Richard D. Anderson, Jr. et al. eds., 2001) (defining "democratic consolidation" as occurring "when the staff of governing political parties, state bureaucracies, coercive apparatuses, and the judiciary consistently act to maintain or expand the functioning of electoral competition and legally defined citizenship rights").
71. 44 LEO TOLSTOY, ANNA KARENINA 3 (Constance Garnett trans., 1939) ("Happy families are all alike; every unhappy family is unhappy in its own way.").
72. 45 See ROSE et al., supra note 22, at 26-27.
73. 46 See ROBERT DAHL, A PREFACE to DEMOCRATIC THEORY 3 (1956) ("[A]t a minimum, it seems to me, democratic theory is concerned with processes by which ordinary citizens exert a relatively high degree of control over leaders....");
74. AREND LIJPHART, DEMOCRACIES: PATTERNS of MAJORITARIAN and CONSENSUS GOVERNMENT in TWENTY-ONE COUNTRIES 1 (1984) ("The literal meaning of democracy - government by the people - is probably also the most basic and most widely used definition. ").
75. 47 See, e.g., JOSE ANTONIO CHEIBUB, PRESIDENTIALISM, PARLIAMENTARISM, AND DEMOCRACY 1 (2007) (introducing two "basic forms of democratic governments" and explaining that presidential democracies are particularly fragile);
76. Linz, supra note 20, at 52-53 (characterizing the presidential system in terms of executive independence, fixed terms, and democratic claim to power).
77. 48 The idea of a "courtocracy" or a "juristocracy" indicates that courts may be among the strongest institutions of state. For an explanation of "courtocracy, " see Kim Lane Scheppele, Declarations of Independence: Judicial Reactions to Political Pressure, in JUDICIAL INDEPENDENCE AT THE CROSSROADS 227, 263-64 (Stephen B. Burbank and Barry Friedman eds., 2002). For an explanation of "juristocracy, " see RAN HIRSCHL, TOWARDS JURISTOCRACY: THE ORIGINS AND CONSEQUENCES OF THE NEW CONSTITUTIONALISM 1 (2004).
78. 49 Constitutional courts have exclusive jurisdiction over all constitutional matters. See Kim Lane Scheppele, Guardians of the Constitution: Constitutional Court Presidents and the Struggle for the Rule of Law in Post-Soviet Europe, 154 U. Pa. L. REV. 1757, 1761-62 (2006) [hereinafter Scheppele, Guardians] (describing constitutional courts and their differences from supreme courts).
79. 50 See Geoffrey P. Miller, An Interest-Group Theory of Central Bank Independence, 27 J. LEGAL STUD. 433, 435 (1998) (explaining independent central banks' role in inflation and price stability and its impact on political deals).
80. 51 See Kim Lane Scheppele, A Realpolitik Defense of Social Rights, 82 TEX. L. REV. 1921, 1924-25 (2004) [hereinafter Scheppele, Realpolitik Defense] (describing a decision of the Hungarian Constitutional Court that restored popular social welfare programs);
81. infra Part II. A.
82. 52 See Miller, supra note 50, at 446-47.
83. 53 See Elmendorf, supra note 13, at 961-63 ("The paradigmatic ombudsman's office... impartially investigate[s] individuals' claims of administrative unfairness.... Commissions of inquiry, by contrast, are usually... set up to study large-scale societ al. problems and to propose policy reforms.").
84. 54 See infra Conclusion.
85. 55 This Section is based on the account of the "standard democratic story, " which first appeared in Kim Lane Scheppele, Democracy by Judiciary (Or, Why Courts Can Sometimes Be More Democratic than Parliaments), in RETHINKING THE RULE OF LAW IN POST- COMMUNIST EUROPE: PAST LEGACIES, INSTITUTIONAL INNOVATIONS, and CONSTITUTIONAL DISCOURSES 25, 27-31 (Wojciech Sadurski, Martin Krygier and Adam Czarnota eds., 2005). What follows here is an abstracted consolidation of the discussions in ROBERT A. DAHL, DEMOCRACY and ITS CRITICS 232-34 (1989);
86. DIAMOND, supra note 35, at 10-13; S. N. EISENSTADT, PARADOXES of DEMOCRACY: FRAGILITY, CONTINUITY and CHANGE 14-17 (1999);
87. TOURAINE, supra note 23, at 26-33. The necessary elements for a system to be democratic, in their view, have been arranged here in the chronological order in which they would typically appear.
88. 56 Democratic consolidationists generally say that the commitment of all parties to the rules of the game is precisely what makes a democracy "consolidated." LITMZ and STEPAN, supra note 27, at 5.
89. 57 BICKEL, supra note 14, at 16-23; see supra note 14 and accompanying text.
90. 58 See Elmendorf, supra note 13, at 1032-33 (highlighting the importance of " (1) appointment and removal procedures; (2) conflict-of-interest rules; and (3) mechanisms for guarding budgets" in assessing "the problem of de facto independence" for advisory bodies);
91. Miller, supra note 50, at 449-50 (comparing central bank independence with judicial independence).
92. 59 For a general account of this constitutional history, see Kim Lane Scheppele, The Agendas of Comparative Constitutionalism, LAW and Cts. (Am. Political Sci. Ass'n, Wash., D. C.), Spring 2003, at 5, 12-13, available at http://wwwl.law.nyu.edu/lawcourts/pubs/newsletter/spring03. pdf.
93. th century, much constitutional change in Europe was motivated by the desire on the part of newly empowered classes - empowered either by Enlightenment ideas or by the money made from the profits of industrialization - to force kings to share power."). In some countries, as a result, this will start as a set of conflicts between church and state (for example) and in other countries, the starting point will be the conflicts between monarchies and nobilities. Id. at 14.
94. 61 See SARTORI, supra note 36, at 83-142; MATTHEW SHUGART and JOHN M. CAREY, PRESIDENTS and ASSEMBLIES: CONSTITUTIONAL DESIGN and ELECTORAL DYNAMICS 1-17 (1992);
95. Douglas V. Vemey, Parliamentary Government and Presidential Government, in PARLIAMENTARY VERSUS PRESIDENTIAL GOVERNMENT, supra note 36, at 31, 31-49.
96. 62 The extent of separation of powers in Western democracies varies widely - from the Westminster model of concentrated powers to the presidentialist one of separated and checked powers. The tendency in parliamentarist systems, however, is toward increased separation of powers, as the imminent launching of an independent Supreme Court in England, a court no longer part of the upper house of parliament, suggests. For the announcement of the new court, see Judiciary of England and Wales, The New Supreme Court, http://www.judiciary.gov. uk/aboutJudiciary/judges-and-the-constitution/ supremecourt/index.htm (last visited Mar. 5, 2009). Conversely, the tendency in presidentialist regimes is exactly in the opposite direction, toward more sharing of power with the parliament. Here, France's period of "cohabitation" followed by the decrease in the presidential term from seven to five years blurs the boundaries between presidentialist and parliamentary regimes. Jean Poulard, The French Double Executive and the Experience of Cohabitation, 105 POL. SCI. Q. 243, 263-66 (1990).
97. 63 This is sometimes described as the "mini constitution. " JAN-ERIK LANE, CONSTITUTIONS and POLITICAL THEORY 110-17, 125-35 (1996).
98. 64 This is the familiar argument of JOHN HART ELY, DEMOCRACY and DISTRUST: A THEORY of JUDICIAL REVIEW (1980).
99. 65 In 1974, thirty-nine countries out of the 145 in existence at that time were democracies - twenty-seven percent of all states. By 1997, the number of democracies grew to 117 out of 191 existing states - or sixty-one percent of all states. DIAMOND, supra note 35, at 24-25.
100. 66 This is particularly true in the aftermath of terrorist attacks which, as their name suggests, operate precisely through the creation of terror in the public and the consequent calls for extreme state action:
101. Terror produces its effects by regularly blurring the bounds between the spaces and times of war and peace. It also works by its efforts to disguise its own principles of organization and mobilization. And it is above all devoted to the decimation of order, understood as peace or freedom from violence. Terror, in the name of whatever ideology of equity, liberty, or justice, seeks to install violence as the central regulative principle of everyday life. This is what is terrifying about terror.... Terror is the rightful name for any effort to replace peace with violence as the guaranteed anchor of everyday life.
102. ARJUN APPADURAI, FEAR of SMALL NUMBERS: AN ESSAY ON THE GEOGRAPHY OF ANGER 32 (2006).
103. 67 As John Brenkman states:
104. The enjoyment of power is inescapably ambivalent. When Weber identified one of the 'inner enjoyments' of the political vocation as the 'feeling of holding in one's hand the nerve fiber of historically important events, ' he brought out the nature of the ambivalence. To hold power is at the same time to be gripped by power. The politician does not simply enjoy power, he is enjoyed - seized, jolted, thrilled - by power.
105. BRENKMAN, supra note 33, at 27 (citing MAX WEBER, supra note 33).
106. 68 See NORMAN DANIELS, JUSTICE and JUSTIFICATION 257-83 (1996);
107. DEREK PARFIT, REASONS AND PERSONS 351-79 (1984);
108. Axel P. Gosseries, What Do We Owe the Next Generation (s), 35 LOY. L. A. L. REV. 293, 295 (2001).
109. 69 In this Section, I will lay out the model of constitutional courts, though of course some of the features of constitutional courts are also found in supreme courts with the power of judicial review. Most supreme courts, however, have both constitutional and statutory interpretation in their remit, and so can often turn what might be constitutional questions into matters of statutory interpretation. Also, since supreme courts generally can hear cases only as the last layer of appeal from ordinary court proceedings, they tend to get involved later in the process than constitutional courts, which can hear complaints as soon as they become evident. Supreme courts, as a result, tend to have a lower profile in their respective political systems than do constitutional courts, and are considered less justified in taking on the political branches because they have the mixed function of being the highest court in the ordinary judicial system and the primary judicial guarantor of the constitution. For a more extended discussion of the difference between supreme courts and constitutional courts, see Scheppele, Guardians, supra note 49, at 1761-72.
110. 70 Marbury v. Madison, 5 U. S. (1 Cranch) 137, 177-78 (1803).
111. 71 Most of the rest of the world uses a more aggressive form of judicial review, a form that allows courts to review legislation in the abstract before it is promulgated or before it has had a chance to cause negative effects. Miguel Schor, Mapping Comparative Judicial Review, 7 WASH. U. GLOBAL STUD. L. REV. 257, 266 (2008) (presenting the competing views about why judicial review was so liberalized). In addition, many countries have built in ways for individuals to take complaints that their constitutional rights have been violated by either legislation or executive interpretation of that legislation directly to a body that can make a final resolution of the constitutional claim without the need for a long process of appeals. ALLAN R. BREWER-CARÍAS, JUDICIAL REVIEW in COMPARATIVE LAW 210-12 (1989);
112. Wolfgang Zeidler, The Federal Constitutional Court of the Federal Republic of Germany: Decisions on the Constitutionality of Legal Norms, 62 NOTRE DAME L. REV. 504, 506 (1987).
113. 72 See Louis Favoreu, Constitutional Review in Europe, in CONSTITUTIONALISM and RIGHTS: THE INFLUENCE of the UNITED STATES CONSTITUTION ABROAD 38, 39-40, 51-55 (Louis Henkin and Albert J. Rosenthal eds., 1990) (discussing the development of separate constitutional courts in various European countries).
114. 73 HERMAN SCHWARTZ, THE STRUGGLE for CONSTITUTIONAL JUSTICE in POST- COMMUNIST EUROPE 1 (2000).
115. 74 See John Ferejohn and Pasquale Pasquino, Constitutional Adjudication: Lessons from Europe, 82 TEX. L. REV. 1671, 1675 (2004) (discussing France, Spain, Portugal, and Italy);
116. Tom Ginsburg, Constitutional Courts in New Democracies: Understanding Variation in East Asia, GLOBAL JURIST ADVANCES, Feb. 2002, art. 4, at 2, available at http://www.bepress.com/gj/advances/ vol2/issl/art4/(discussing Thailand, South Korea, and Mongolia).
117. 75 Scheppele, Guardians, supra note 49, at 1766-69.
118. 76 ALEC STONE SWEET, GOVERNING WITH JUDGES: CONSTITUTIONAL POLITICS in EUROPE 34 (2000).
119. 77 See Hans Kelsen, Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitutions, 4 J. POL. 183, 187 (1942) ("The decision of the Constitutional Court by which a statute was annulled had the same character as a statute which abrogated another statute. It was a negative act of legislation. ").
120. 78 In practice, because of the huge press of cases, courts have to find a way to triage their decisions. In this footnote and the specific references on constitutional courts to follow, I will use examples from the two courts with which I have worked, because I am most familiar with their rules: the Hungarian Constitutional Court and the Russian Constitutional Court. In Hungary, the procedures the court uses to decide a constitutional issue depend on the sort of norm that is reviewed. Cases only engage the whole court if a statute is being reviewed for constitutionality; three-judge panels deal with the constitutionality of administrative regulations. Georg Brunner, Structure and Proceedings of the Hungarian Constitutional Judiciary, in CONSTITUTIONAL JUDICIARY IN A NEW DEMOCRACY: THE HUNGARIAN CONSTITUTIONAL COURT 65, 74-75 (Laszlo Solyom and Georg Brunner eds., 2000). In Russia, the Constitutional Court separates cases into first-impression cases and cases that merely elaborate on those first-impression cases (postanovlenyia as opposed to opredelenyia in Russian). Postanovlenyia require formal briefing, oral arguments, and plenary sessions of a Senate of the Court. Opredelenyia are decided on the basis of the initial submissions and are generally written by one judge as rapporteur, with the decision then voted on in the plenary session of a Senate, without full oral argument. Scheppele, Realpolitik Defense, supra note 51, at 1954 n. 145.
121. 79 In Hungary, the court must hear all legitimately filed petitions within its jurisdiction and must also refer all petitions not within its jurisdiction to the state body that bears responsibility for inquiring into the matter raised. Act No. XXXII of 1989 on the Constitutional Court, ch. III, art. 23, available at http://www.mkab.hu/content/en/encont5b.htm ("The Chairperson refers petitions for cases outside of the competence of the Constitutional Court to the organ having competence for the case."). In Russia, the reasons for legitimately dismissing a petition are listed in the Constitutional Court's framework statute: Article 43 - Dismissal of Petition. The Constitutional Court of the Russian Federation shall decide to dismiss a petition when: 1) Resolution of the question raised in the petition does not fall under the jurisdiction of the Constitutional Court of the Russian Federation; 2) The petition is inadmissible in accordance with the requirements of the present Federal Constitutional Law; 3) The Constitutional Court of the Russian Federation has issued a ruling on the object of the petition and the ruling remains in force. If the constitutionally challenged act has been abrogated or terminated by the beginning or during the consideration of the case, the proceedings initiated by the Constitutional Court of the Russian Federation may be stopped, except when constitutional rights and freedoms of citizens have been violated during the operation of the act. Sobranie Zakonodatel'stva Rossiiskoi Federatsii [SZ RF] [Russian Federation Collection of Legislation] 1994, No. 1, Item 3. In both constitutional courts, the courts must decide the legitimately posed questions one way or another. They cannot hide behind the political question doctrine or dismiss cases because they
122. 80 See generally Baker v. Carr, 369 U. S. 186 (1961).
123. 81 Because the U. S. Supreme Court has jurisdiction for both statutory and constitutional questions, it can sometimes avoid making a constitutional decision by interpreting a statute to sidestep the constitutional question. See, e.g., Rasul v. Bush, 542 U. S. 466, 473 (2004) (addressing Guantanamo detainees' habeas claims in a purely statutory manner before the Supreme Court revisited the question in Boumediene v. Bush, 128 S. Ct. 2229, 2247-48 (2008), where it could no longer avoid the question of the scope of constitutional habeas doctrine).
124. 82 See, e.g., Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of Mootness, 105 HARV. L. REV. 603, 605 (1992) (observing that the justiciability doctrines - standing, ripeness, and mootness - "disempower federal courts from deciding certain kinds of cases").
125. 83 This is not to say that constitutional courts do not have any evasive tactics for avoiding head-on political conflicts. Constitutional courts often decide controversial matters on procedural rather than substantive grounds. So, for example, when the Hungarian Constitutional Court decided its first abortion case, the court struck down the communist-era abortion law on the grounds that it had been enacted as an administrative regulation rather than as a constitutionally required statute, thereby avoiding the more politically controversial question of when life began under the Hungarian constitution. See Magyar Kozlony [MK.] 64 (Alkotmanybirosag [Constitutional Law Court] 1991) (Hung.), translated in On the Regulation of Abortion, in CONSTITUTIONAL JUDICIARY in a NEW DEMOCRACY: THE HUNGARIAN CONSTITUTIONAL COURT, supra note 78, at 178, 178-99. Similarly, when the Russian Constitutional Court had to rule on the constitutionality of the first Chechen War, the court limited itself to inquiring into whether the procedures for declaring war had been followed by involving the parliament appropriately, avoiding the question of whether the war required a formal declaration of a state of emergency under the Russian Constitution or whether the tactics used in the war violated the rights of the citizens of Chechnya. Rossiiskaia Gazeta [Ros. gaz.] Aug. 11, 1995 (Russ.), translated in In the Case Concerning Verification of the Constitutionality of Edict No. 2137 of the President of the Russian Federation "On Measures for the Restoration of Constitutional Legality and Law and Order on the Territory of the Chechen Republic" of 30 November 1994, in 31 STATUTES and DECISIONS: THE LAWS of the USSR and ITS SUCCESSOR STATES, Sept.-Oct. 1995, at 48, 51. Based on my personal observation from having worked in both settings and having observed the flow of cases in each court, the judges also have the power to delay decisions on cases because there is no requirement in either courts' framework statutes to decide cases within any particular time frame. As a result, constitutional courts can avoid complicated political issues while the issues are red hot, but not forever.
126. 84 Constitutional courts have their intellectual origin in the work of Hans Kelsen, the Austrian legal theorist and creator of the first specialized constitutional court, that of Austria in its post-World War I constitution. It was important for Kelsen that the Constitutional Court, bearing enormous political weight in the constitutional order of Austria, be the only one that could exercise judicial review. See Kelsen, supra note 77, at 186. For a discussion of Kelsen's contribution, see MARTIN M. SHAPIRO and ALEC STONE SWEET, ON LAW, POLITICS, and JUDICIALIZATION 147-48 (2002).
127. 85 See Kelsen, supra note 77, at 186 ("The most important fact, however, is that in Austria the decisions of the highest ordinary court... concerning the constitutionality of a statute or an ordinance had no binding force upon the lower courts.").
128. 86 See Scheppele, Guardians, supra note 49, at 1761-72.
129. 87 U. S. CONST, art. III, § 2, cl. 1.
130. 88 When an ordinary court judge has a constitutional question that cannot be resolved by her court, the judge in such a case is supposed to send the constitutional question to the constitutional court for resolution, staying the proceedings in her court until she gets an answer. When the constitutional court provides the answer to the constitutional question, the case in the ordinary court can be resumed. Herbert Hausmaninger, Judicial Referral of Constitutional Questions in Austria, Germany, and Russia, 12 TUL. EUR. and CIV. L. F. 25, 29-30, 35-36 (1997). This may look like the old system of interlocutory appeals in the U. S., but it has a different rationale. Rather than ensuring that a particular intermediate question is finally settled through the usual mechanisms of appeal, the constitutional reference process sends a constitutional question to the only court that can hear it. Id. at 27. The ordinary judge cannot make a ruling on the matter and must wait for the one body that can make such a judgment to make it.
131. 89 HELMUT STEINBERGER, MODELS of CONSTITUTIONAL JURISDICTION 29 (1993).
132. 90 U. S. CONST, art. III, § 2, cl. 1.
133. 91 Abstract review occurs when a constitutional court is asked to review legislation for constitutionality "in the abstract" - that is, as a facial challenge to a law without any concrete parties who have been affected by it appearing before the court. In fact, abstract review may and often does occur before a law has even gone into effect. Favoreu, supra note 72, at 40-42 (explaining that this is because "in Europe constitutional issues are generally raised by a public authority... and not by individuals").
134. 92 The Hungarian Constitutional Court provides unusually broad access to abstract review. According to the Hungarian Constitution, "everyone" may file a complaint in the Constitutional Court challenging the constitutionality of a law. A MAGYAR KÖZTÁRSASÁ G ALKOTMÁNYA [Constitution] art. 32/A (3) (Hung.), available at http://www.mkab.hu/en/enpage5.htm.
135. 93 When a constitutional court finds that a statute is unconstitutional, but voids the application of the statute only at some point in the future, this is called "prospective nullification. " See Kelsen, supra note 77, at 199. This practice is controversial because it allows unconstitutional laws to remain on the books for a transitional period, but it is used to avoid creating immediate gaps in the law that may have other dire consequences.
136. 94 See Bundesverfassungsgerichts [BVerfG] [Federal Constitutional Court] July 18, 2005, 58 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 2289 (F. R. G.) (European Arrest Warrant Act Case), available at http://www.bundesverfassungsgericht.de/entscheidungen/rs20050718-2bvr223604en. html.
137. For analysis of the judgment, see Simone Mölders, European Arrest Warrant Act Is Void - The Decision of the German Federal Constitutional Court of 18 July 2005, 7 GERMAN L. J. 45, 47 (2005), available at http://www.germanlawjournal.com/pdf/Vol07No01/PDF-Vol-07-No-1-45-58- Developments-Moelders.pdf.
138. 95 See Bundesverfassungsgerichts [BVerfG] [Federal Constitutional Court] Apr. 4, 2006, 59 Entscheidungen des Bundesverfassungsgerichts [BVerfGE] 1939 (F. R. G.) (Data Matching Act Case), available at http://www.bundesverfassungsgericht.de/entscheidungen/rs20060404-lbvr051802. html;
139. Ralf Bendrath, German Constitutional Court Has Outlawed Preventative Data Screening, EDRI-GRAM (European Digital Rights, Brussels, Belgium), May 24, 2006, available at http://www.edri.org/edrigram/number4.10/ datascreening (summarizing the decision in English and explaining that according to the decision, a "general threat condition or foreign tensions like after 9/11 2001 are not sufficient" justification to use an indiscriminate system like data matching to find potential terrorists).
140. 96 See Simon Butt and David Hansell, The Masykur Abdul Kadir Case: Indonesian Constitutional Court Decision No 013/PUU-I/2003, 6 AUSTL. J. ASIAN L. 176, 185 (2004), available at http://www.federationpress.com.au/pdf/AJAL6 (2) %20Butt.pdf (providing a translation and a detailed analysis of the decision).
141. 97 Magyar Kozlony [MK.] 11 (Alkotmanybirosag [Constitutional Law Court] 1992) (Hung.), translated in On Retroactive Criminal Legislation, in CONSTITUTIONAL JUDICIARY in a NEW DEMOCRACY: THE HUNGARIAN CONSTITUTIONAL COURT, supra note 78, at 214, 214-28.
142. 98 See Gabor Halmai and Kim Lane Scheppele, Living Well Is the Best Revenge: The Hungarian Approach to Judging the Past, in TRANSITIONAL JUSTICE AND THE RULE OF LAW in NEW DEMOCRACIES 155, 156 (A. James McAdams ed., 1997).
143. 99 Simone Polillo and Mauro F. Guillen, Globalization Pressures and the State: The Worldwide Spread of Central Bank Independence, 110 Am. J. SOC. 1764, 1767 (2005) (citing John Meyer, John Boli, George Thomas and Francisco Ramirez, World Society and the Nation-State, 103 AM. J. SOC. 144 (1997)).
144. 100 See ZYGMUNT BAUMAN, GLOBALIZATION: THE HUMAN CONSEQUENCES 1 (1998) (" 'Globalization' is on everybody's lips; a fad word fast turning into a shibboleth, a magic incantation, a pass-key meant to unlock the gates to all present and future mysteries. For some 'globalization' is what we are bound to do if we wish to be happy; for others, 'globalization' is the cause of our unhappiness.").
145. 101 Miller, supra note 50, at 433.
146. 102 David A. Levy, Does an Independent Central Bank Violate Democracy?, 18 J. POST KEYNESIAN ECON. 189, 192 (1995-96).
147. 103 Miller, supra note 50, at 436-45.
148. 104 Polillo and Guillen, supra note 99, at 1767.
149. 105 Miller, supra note 50, at 436-45 (exploring possible rationales for pursuing an expansionary monetary policy).
150. 106 There is a substantial literature on central bank independence, which is achieved to a variable degree across countries. E.g., Polillo and Guillen, supra note 99, at 1781-84.
151. 107 Scott M. Noveck, Is Judicial Review Compatible with Democracy?, 6 CARDOZO PUB. L. POL'Y and ETHICS J. 401, 425-27 (2008).
152. 108 MICHAEL BORDO, FED. RESERVE BANK of CLEVELAND, A BRIEF HISTORY of CENTRAL BANKS 1 (2007), available at http://www.clevelandfed.org/Research/commentary/2007/1207.pdf.
153. 109 Id.
154. 110 Id. at 1-2.
155. 111 See id. at 2.
156. 112 Id.
157. 113 Id.
158. 114 Id.
159. 115 Id. (explaining that The Banking Acts of 1933 and 1935 reorganized the Federal Reserve System, shifting power away from the Reserve Banks to the Board of Governors and making the Fed subservient to the Treasury).
160. 116 Id. at 2-3.
161. 117 Polillo and Guillen, supra note 99, at 1767.
162. 118 Id. at 1767-68 (discussing the idea of central bank independence "as a safeguard against the alleged ill effects of fiscally expansionary policies").
163. 119 Id. at 1768.
164. 120 Id.
165. 121 Id. at 1769.
166. 122 In fact, one of the most widely used measures of central bank independence codes whether the bank's protections are built into the constitution, enunciated through organic laws (that are harder for parliaments to change), or through ordinary statutes. Alex Cukierman, Central Bank Independence and Monetary Control, 104 ECON. J. 1437, 1438 (1994) ("Legal independence is a reasonable proxy for actual independence provided there is sufficient respect for the rule of law in the country under consideration. ").
167. As Polillo and Guilten explain, this is a reasonable measure of bank independence because "economists argue that the mere adoption of a legal statute guaranteeing central bank independence dampens inflationary expectations in the economy" because it creates a "regime of credibility."
168. Polillo and Guilten, supra note 99, at 1782.
169. As for examples of the new constitutions that have built central banks in as constitutional institutions, the Russian Constitution says: "The protection and stability of the ruble is the main function of the Central Bank of the Russian Federation which it exercises independently from other bodies of state power."
170. KONSTTTUTSIIA ROSSIISKOI FEDERATSII [Konst. RF] [Constitution] art. 75 (2) (Russ.), available at http://www.servat. unibe.ch/icl/rs00000-.html.
171. The Hungarian Constitution sets up the central bank directly as a constitutional institution: (1) The National Bank of Hungary is the central bank of the Republic of Hungary. The National Bank of Hungary shall define the country's monetary policy in accordance with the provisions of specific other legislation. (2) The President of the National Bank of Hungary is appointed by the President of the Republic for a term of six years. (3) The President of the National Bank of Hungary shall present the Parliament with a report on the activities of the National Bank once every year. A MAGYAR KOZTARSASAG ALKOTMANYA [Constitution] art. 32/D (Hung.), available at http://www.mkab.hu/en/enpage5.htm. Given that the term of the Hungarian president is five years,
172. id. at art. 29/A (l), and the parliamentary term is only four years,
173. id. at art. 20 (1), this means the national bank president serves terms that are staggered compared with elected officials and thus cannot be completely controlled by them. The capacity of the parliament to adjust the general terms of monetary policy by statute, however, gives some political control to the parliament.
174. 123 See William Bernhard, A Political Explanation of Variations in Central Bank Independence, 92 Am. POL. SCI. REV. 311, 311-12 (1998).
175. 124 See Polillo and Guillen, supra note 99, at 1771-76.
176. 125 Id. at 1770 n. 3.
177. 126 Id.
178. 127 See. e.g., Paul J. DiMaggio and Walter W. Powell, The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields, 48 AM. SOC. REV. 147, 147 (1983) (contending that "three isomorphic processes - coercive, mimetic, and normative" lead "rational actors [to] make their organizations increasingly similar as they try to change them").
179. 128 DELIA M. BOYLAN, DEFUSING DEMOCRACY: CENTRAL BANK AUTONOMY AND THE TRANSITION FROM AUTHORITARIAN RULE 9 (2001);
180. John B. Goodman, The Politics of Central Bank Independence, 23 COMP. POL. 329, 346 (1991);
181. Polillo and Guillen, supra note 99, at 1772-73. Contra Jakob de Haan and Gert Jan van't Hag, Variation in Central Bank Independence Across Countries: Some Provisional Empirical Evidence, 85 PUB. CHOICE 335, 346 (1995) (rejecting, inter alia, the hypothesis that central bank independence is positively correlated to political instability; instead, finding that "[i]f anything, central bank independence is negatively related to political instability").
182. 129 Bernhard, supra note 123, at 324; Polillo and Guillen, supra note 99, at 1772-73.
183. 130 Polillo and Guillen, supra note 99, at 1773-76, 1793.
184. 131 Id. at 1773-76.
185. 132 Bemhard, supra note 123, at 311, 320-23.
186. 133 Miller, supra note 50, at 436-41.
187. 134 Id.
188. 135 Id. at 445-52.
189. 136 GRUNDGESETZ [GG] [Constitution] (F. R. G.), available at http://www.servat.unibe.ch/law/lit/the-basic-law.pdf.
190. 137 Id. at arts. 93-94.
191. 138 Id. at art. 88. In 1992, the constitution was amended to permit the transfer of Bundesbank (central bank) functions to the European Central Bank in preparation for the launching of both the European Central Bank and the euro with German participation.
192. 139 Id. at art. 45b.
193. 140 Id. at art. 45c.
194. 141 Id. at art. 114 (2).
195. 142 S. AFR. CONST. 1996, available at http://www.info.gov. za/documents/constitution/1996/index.htm.
196. 143 Id. §§ 182-183.
197. 144 Id. § 184.
198. 145 Id. §§ 185-186.
199. 146 Id. § 187.
200. 147 Id. §§ 188-189.
201. 148 Id. §§ 190-191.
202. 149 Id. § 192.
203. 150 Id. § 196.
204. 151 Id. §§ 220-222.
205. 152 Id. § 178.
206. 153 Id. §§ 200-204.
207. 154 Id. §§ 205-208.
208. 155 Id. §§ 209-210.
209. 156 Id. § 167. The South African Constitution requires the parliament to defend the independence of all courts, including the Constitutional Court: "Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts." Id. § 165 (4).
210. 157 Id. §§ 223-225. In light of our discussion of central banks, it is particularly interesting that the South African central bank must - according to the Constitution - conduct its business "independently and without fear, favour or prejudice." Id. § 224 (2).