Liberty Law Blog

Islam, Constitutionalism, and the Rule of Law

by Richard Reinsch / 0 Comments

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So what are the prospects in the Islamic world for constitutional political orders featuring the rule of law, limited government, and political representation? To answer this question Sohail Hashmi, Professor of International Relations at Mount Holyoke College, has written an incisive essay exploring the political, legal, and religious history of Islam in order to shed light on the compatibility between Islam and political constitutionalism. Hashmi’s essay is a powerful argument for ethical objectivism and the possibilities for ressourcement within the Islamic tradition that could lead to a flowering of liberty with law.

Robert Reilly, author of the powerful book, The Closing of the Muslim Mind, responds with “The Formidable Philosophical Obstacles to Islamic Constitutionalism” where he notes

Hashmi’s idea that the sharia can play the role of natural law in developing Muslim constitutionalism is problematic, to say the least, even though Hashmi is certainly correct in saying that it, at one time, served as the only brake against the otherwise absolute power of the caliph or emir.  The problem is: If the sharia is divine, it cannot be changed.  Since sharia codifies the inequality of men and women, and of Muslims and all others, how could it serve as the basis for a rule of law founded on the equality of all people?

Becket Fund lawyer Asma Uddin adds tremendously to the conversation with her distillation of human rights and the sources for their protection within the Islamic religious and legal tradition. Uddin’s voice in this exchange calls forth the complexity of the re-creation of right that could emerge from the sources of Islam.

The tireless defender of free speech, freedom of association, and religious liberty, David French, JAG officer and veteran of Iraqi Freedom, asks us to consider the substantive requirements of human flourishing and the abuses of authority within many Muslim-majority states. French argues that Hashmi’s contribution is needed and should be seriously considered by men and women of good-will in this debate. Directly stated: the current authoritarianism that is dominant in so many Muslim states cannot continue for much longer. From the standpoint of human dignity, new articulations of political freedom are needed and must be advanced in practical ways within the Islamic world.

Red Light Cameras

by Mike Rappaport / 0 Comments

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I was surprised and pleased to read this morning that red light cameras will be leaving my home town of San Diego.  My sense, based on reading some articles, is that the cameras did not improve safety and may have made matters worse.  My strongest sense of outrage was caused, however, by the fact that the tickets for the cameras were $490 whereas speeding and other tickets could be much cheaper.  My son got a red light ticket for $490 simply by not stopping long enough before making a right on red — hardly a severe safety problem.

Part of my surprise from the elimination of the cameras is that it was done by the new mayor, who was seen as a “union hack” and who defeated a libertarian-ish Republican competitor who ran against city hall and big government.  Perhaps Mayor Filner was induced to take the action based on competition from the libertarian challenger.  But since he just won the election, I am not so sure.  Sometimes your political opponents do at least a couple of good things. Continue Reading →

Let the Sunstein In

by Ken Masugi / 4 Comments

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FDRWatershed election presidents such as Abraham Lincoln and Franklin Roosevelt do not simply happen on election day. The significance of the election is played out in speeches that illuminate and in policy that transforms. Whether President Obama is a critical election president is yet to be determined, but his references to the Declaration and the Constitution in his second inaugural address make clear his ambition to change our understanding of who we are as a people.

Does it come as a surprise that we have been living under a new Constitution anyway, a “Second Bill of Rights” that has devoured the original document? According to Harvard Law professor and former high-ranking Obama Administration official Cass Sunstein, it’s like discovering we’ve been speaking prose all our lives. In a recent op-ed Sunstein accurately observes that President Obama’s Second Inaugural (not to mention his major actions) faithfully follows Franklin Roosevelt, who first called for a “Second Bill of Rights” in his 1944 State of the Union Address. Continue Reading →

What is to be Done with Lenin’s Remains?

by David Conway / 0 Comments

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LeninBoth the London Times  and the Washington Post  carried at the week-end (Jan. 12 & 13) reports that Lenin’s embalmed corpse might later this year finally be buried, after having lain on public display in a mausoleum in Moscow’s Red Square for the past eighty years, since the Soviet leader’s death in 1924.

Both newspapers linked their respective reports to the recent closure of the mausoleum to the public, pending major structural repair, as well as to remarks in defence of the continued display of Lenin’s remains there, made last month by President Vladimir Putin at his first meeting with campaign supporters since his inauguration in October. Continue Reading →

Efficient Golfing

by Michael S. Greve / 0 Comments

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Phil Mickelson gives interviews the way he plays golf: brilliantly, and recklessly. He’s in the “target zone” of federal and state tax collectors, he said the other week, and so he might have to move from California to Florida to protect his $50 million-plus annual income. Whap! Whoom! Care to hammer another last-hole drive into the hospitality tent? Miss a putt for 59?

Lost in the commotion over Lefty’s remarks (which, unlike his hair-raising from-behind-the-garbage-can shots, he could and did later retract) was a Notice of Proposed Rulemaking (“NPRM”) in the Federal Register that bears on Mr. Mickelson and his irrational behavior, as well as many other aspect of the game of golf. The NPRM was issued by the Department of the Interior (which is in charge of everything outdoors, including golf courses) and approved by the Office of Information and Regulatory Affairs (“OIRA”), then headed by Cass R. Sunstein. The full notice runs 195 pages; excerpts appear below.

DEPARTMENT OF THE INTERIOR
Office of the Secretary
98 CFR Parts 160 and 164
RIN: 109O1–AB47

Modifications to the Sports Competition and Fairness in Open Spaces Act.

AGENCY: Department of the Interior.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Department of the Interior (DoI or ‘‘the Department’’) is issuing this notice of proposed rulemaking to modify the standards for the game of using sticks to propel round objects through space towards and into a hole (“golf”). 

DATES: Submit comments on or before February 15, 2013.

ADDRESSES: You may submit comments, identified by RIN 10901–AB47, by any of the following methods (please do not submit duplicate comments):

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Attachments should be in Microsoft Word, WordPerfect, or Excel. 

• Regular, Express, or Overnight Mail.

FOR FURTHER INFORMATION CONTACT: Michelle Wickelson, 202–2050–272.

SUPPLEMENTARY INFORMATION: The discussion below includes a description of the statutory and regulatory background of the proposed rules, a description of the proposed modifications, and the impact statement and other required regulatory analyses. We solicit public comment on the proposed rules. Persons interested in commenting on the provisions of the proposed rules can assist us by preceding discussion of any particular provision or topic with a citation to the section of the proposed rule being discussed.

I. Background

The game of golf is customarily conducted on private or public open (but confined) spaces.[1] It is governed, in its major aspects, by the rules of non-governmental associations: the United States Golf Association (“USGA”), and the Professional Golf Association (“PGA”). Members of both associations organize in, promote their purposes, and propel their objects through “clubs.”

For reasons not fully understood at the GS-13 level, golf holds great appeal to large segments of the American public and produces significant economic benefits. Moreover, it is perceived as a uniquely fairgame. However, even seemingly fair and well-working markets may suffer from pronounced inefficiencies and perceptions biases, due to the fact that everyone is human except OIRA. See, e.g., Richard Thaler & Cass R. Sunstein, Nudge (2008). Often, such inefficiencies can be redressed through small changes in the operative default rules. Ibid. For a discussion of biases and remedies in the golf market see Daniel Pichert & Konstantinos V. Katsikopoulos, “Green Defaults,“ 28 Journal of Environmental Psychology 63 (2008). The Department’s proposed nudges are consistent with the findings in the literature.

II. Proposed  Rules
A.     Professionals.

Studies have shown that successful professional golfers are highly sensitive to marginal tax rates. See, e.g., Alyssia Finley, “Mickelson and the Sports Star Tax Migration,” Wall Street Journal Jan. 28, 2013. (documenting migration of professional golfers to Florida, especially from California). A lower effective tax rate results in reduced effort. This helps to explain why European players, who are subject to higher marginal tax rates than Americans, have prevailed in a disproportionate number of tournaments around the world, including the U.S. Accordingly, the Department proposes a putt tax, which would equalize each U.S. player’s effective tax rate with that of the highest-taxed player in any given tournament.

Further, it has been shown conclusively that professional golfers are loss averse. See Devin G. Pope & Maurice E. Schweitzer, “Is Tiger Woods Loss Averse?” 101 American Economic Review 129 (Feb. 2011). They irrationally attribute a higher value to the loss of a stroke to par than to a proportionate gain (“birdie”). Consequently, they miss many more putts “for birdie” than “for par.” Among viewers, such events generate unwanted responses and adverse third-party effects. See David Card and Gordon B. Dahl, ”Family Violence and Golf: The Effect of Unexpected Emotional Cues on Violent Behavior,” 126 Quarterly Journal of Economics 103 (2011) (finding an increase in domestic violence after a favored player misses a makeable putt).

Accordingly, the Department proposes that a one-stroke penalty be added each time a player’s ball is placed “for birdie” on a green. A “for eagle” placement would trigger a two-stroke penalty. The default rule will prompt professional players to take the game seriously for a change.

Regulatory Impact:

Costs: $100,000

Benefits: priceless (enhanced viewer experience). For everything else, there’s Mastercard.

B.      Amateurs.

As noted, golf enjoys wide popularity. However, adverse outcomes (“losses”) have often induced amateur players to stay at home, despite their non-trivial membership fees. See Stefano DellaVigna and Ulrike Malmendier, “Paying Not to Go to the Gym,“ 96 American Economic Review 694 (2006). Such inefficient behavior can be reduced through minor adjustments of the so-called ”handicap system.”

Consistent with Executive Order 16224 (Eradication of Hateful Sports Speech, or “Redskins Order”), the Department proposes that the handicap system will be called the “benefit system.” In substance, the Department proposes the following:

Golfers with benefits of 10 or below will have their green fees increased by 35%. 
Golfers with benefits between 11 and 18 will see no increase in green fees. 
Golfers with benefits above 18 will receive a $20 check each time they play.

In addition, the Department proposes that heretofore discretionary “gimmies” will be made mandatory. The odious term—redolent of “A Nation of Takers”—will  be changed to “entitlement,” to be used as follows: 

Benefits of 10 or below: no entitlements. 
Benefits between 11 and 18: entitlements for putter length putts. 
Benefits above 18: if the ball is on the green, no need to putt; just pick it up. 
 
In addition, a player will be limited to a maximum of one birdie or six pars in any given 18-hole 
round. Any excess must be given to those fellow players who have not yet scored a birdie or par. After all players have received a birdie or par from the player actually making the birdie or par, that player may again count his pars and birdies. This default rule will elevate everyone’s game.
 
The current USGA benefit system will be used for the above purposes, but the term “net score” will be available only for scoring players with benefits of 18 and above. This will ensure that players with a benefit above 18 will post only “net score” against every other player’s “gross score.”
 
Costs: Free, like contraceptives.

Benefits: Unquantifiable, but with lots of zeros.

Dated: December 15, 2012

Kenneth Golftzar

Secretary

U.S. Department of Interior

[1] The activity occasionally generates externalities (i.e, golf balls landing without notice or consent in adjacent properties). The Department is examining the efficacy and efficiency effects of the current deterrent (a one-stroke penalty) in a separate “out of bounds” rulemaking.

What Federalism?

by Michael S. Greve / 0 Comments

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Just out: Greve’s twenty-minute diatribe on why and how just about everything we think we know about federalism turns out to be wrong (“But What Kind of Federalism?” Heritage Insider.) It’s the printed, cleaned-up version of a speech I delivered at the Philadelphia Society and again this past month at Gary Gregg’s excellent McConnell Center in Louisville. Apologies if I’ve posted this before. This version though looks nicer. Plus, it has clever pictures of Uncle Sam handing out bags of money and other people throwing it around. State officials, I presume.

Friday Roundup, February 1st

by Richard Reinsch / 0 Comments

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  • So if you’re a stranger to this site, we post frequently on the administrative state. Some have referred to Greve’s candid discourses on this topic as the case of a disgruntled admin law professor. I don’t think “disgruntled” quite catches Greve on this matter. However, for a change of pace we went historical this week with Joseph Postell’s insightful review of Jerry Mashaw’s Creating the Administrative Constitution. Mashaw argues that what we think of as the administrative state had roots in the founding and, in any event, was present for most of the nineteenth century. Postell’s conclusion begs to differ:

Yet in order to demonstrate this, we would need some definition of what it means to have an administrative state.  The fact that we had administration since the Founding is unsurprising.  Even the fact that administrators had significant amounts of discretion and could enact rules to govern the enforcement and administration of federal laws is unsurprising.  After all, the Founders had no problem with administration, in the traditional sense of the term.  What they clearly did oppose are governmental institutions that made law, executed law, and judged law, especially when not constrained by frequent elections. . . .

To put it clearly: in the first hundred years of the republic, did we have administration, or an administrative state?  The existence of the former does not prove the achievement of the latter.

Any belief in greatness offends against the cult of equality, the morass of indiscriminateness into which any democratic culture is always prone to degenerate if it is not careful to value excellence and protect liberty. But the cult of equality demands that all opinions should be equal, all expression legitimate, and all objects fungible: “the substitution of anything for anything,” Kimball writes, “is the ideal” behind the attack on permanence. A belief in permanent monuments of cultural greatness is, moreover, a threat to the primacy of political power for many of the same reasons that religion presents an equivalent obstacle. Both supply a point of reference and a measure of value that transcend the prerogatives of those who happen to be in power at any given time.

Policy-Based Evidence-Making at the CFPB II: Response to Adam Levitin

by Todd Zywicki / 2 Comments

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Thank you to my friend Adam Levitin for engaging me on my critique of the CFPB’s recently-issued—but potentially invalid—“Ability to Pay” and “Qualified Mortgage” rules.  One thing I particularly enjoy in engaging with Adam is that I can follow the logic of his argument and the data to which he is relying, which makes such dialogues useful because it makes it possible to clarify the relevant issues rather than obscuring them.  That’s not always the case and I appreciate Adam’s clarity of exposition.

Allow me to summarize my original post.  My goal was to assess the CFPB’s claim that its extraordinary independence from standard oversight and accountability procedures is justified in light of its claim to be an “evidence-based policy-making” body, constrained by the “data” and thus it needn’t be constrained by other typical accountability measures such as a bipartisan agency structure, Presidential removal power, or effective congressional oversight through the appropriations process. Continue Reading →

Attorney General Wirt’s 1823 Opinion Does Not Support Modern Recess Appointment Practices

by Mike Rappaport / 0 Comments

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One of the key issues involving the Recess Appointments Clause is the question when the vacancy has to arise: must it arise during the recess (the arise interpretation) or can it first arise at any time (the exist interpretation).  To me, the language of the Recess Appointments Clause is clear on the subject: “The President shall have power to fill up all vacancies that may happen during the recess of the Senate.”  It requires the vacancy to arise during the recess – that is, the arise interpretation.

Initially, proponents of the exist interpretation used to claim that the earliest Attorney Generals supported their position.  But after I pointed out that the first Attorney General, Edmund Randolph, followed the arise interpretation, the advocates of the broad power have argued that the exist interpretation was at least adopted early – in 1823 by Attorney General Wirt.  Thus, they claim a long pedigree for their view, even if not back to 1789.

Here, I want to argue that they should not be relying on the Wirt opinion.  While it is true that that opinion does depart from the arise interpretation,” it does not support modern recess appointment practices.  Rather, it condemns them. Continue Reading →

Eugenics, American Progressivism, and the ‘German Idea of the State’

by Tiffany Jones Miller / 2 Comments

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In 1923, Fritz Lenz, a German physician and geneticist advocate of forced sterilization–a man who became one of the leading advocates of the Nazi’s “racial hygiene” program–criticized his countrymen for lagging behind the United States in the enactment of sterilization laws.  In June, 1933, several months after Hitler became Chancellor of the Third Reich, the Nazis began to catch up in earnest.[1]  In consultation with Lenz and other German eugenicists, Dr. Arthur Gutt, a leading official in the Ministry of the Interior, drafted a statute entitled “The Law for the Prevention of Hereditarily Diseased Offspring.”  This proposal, which became Nazi Germany’s first sterilization law, mandated sterilization for all persons believed to be afflicted with congenital feeblemindedness, schizophrenia, manic depression, hereditary epilepsy, Huntington’s chorea, hereditary blindness, hereditary deafness, serious physical deformity or chronic alcoholism.  The purpose of this law, as Gutt explained, was “‘to prevent …poisoning the entire bloodstream of the race.’”[2]  Continue Reading →

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