Tagged Constitution

Context and constitutionality: why “separation of powers” doesn’t really mean “separate”

If you want to open a can of worms at Peach Pundit, simply start a thread that gives readers an excuse to talk aboutseparation of powers” and the role of the Lieutenant Governor. Eventually someone will start throwing around the term “separation of powers” and even suggest that a lawsuit is inevitable if Lt. Gov. Casey Cagle is given back some of the traditional administrative duties of the office he holds.

But such a viewpoint fails to consider the context of the notion of separation of powers in the twenty-first century and oversimplifies a complex subject to the level of an episode of Schoolhouse Rock. Eventually it bends the concept so far by suggesting that the judiciary may intervene to sort out a disagreement about Senate rules, that it breaks the principle of separation of powers more effectively than any change in Senate rules could manage.

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Cain should read the Constitution

During his official announcement for the Republican nomination for president, Herman Cain said that we don’t need to re-write the Constitution, rather re-read it. I tend to agree, but he made an embarrassing gaffe on the Constitution, citing language that was actually from the Declaration of Independence. And recent comments he has made leave one with the impression that Cain may need to do some reading of his own.

While appearing on Glen Beck’s show yesterday, Cain again expressed caution in appointing a Muslim to a position of power if he were president, noting that he would do so if they took a loyalty oath:

BECK: So wait a minute, are you saying that Muslims have to prove, there has to be a loyalty proof?

CAIN: Yes, to the Constitution of the United States of America.

BECK: Well, would you do that to a Catholic or a Mormon?

CAIN: No, I wouldn’t, I wouldn’t because there is a greater dangerous part of the Muslim faith than there is in these other religions. I know there are some Muslims who talk about but we’re a peaceful religion. I’m sure that there are some peace-loving.

Cain once again demonstrates a lack of knowledge of the Constitution, which explicitly states in Article VI, Clause 3 that “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

Another aspect of the Constitution, specifically the Bill of Rights, that he gets wrong is in regards to the Second Amendment. According to a recent interview with Wolf Blitzer, Cain said that states have a right to regulate guns; if they see fit:

BLITZER: How about gun control?

CAIN: I support the 2nd amendment.

BLITZER: So what’s the answer on gun control?

CAIN: The answer is I support, strongly support, the 2nd amendment. I don’t support onerous legislation that’s going to restrict people’s rights in order to be able to protect themselves as guaranteed by the 2nd amendment.

BLITZER: Should states or local government be allowed to control guns, the gun situation, or should…

CAIN: Yes

BLITZER: Yes?

CAIN: Yes.

BLITZER: So the answer is yes?

CAIN: The answer is yes, that should be a state’s decision.

Cain’s belief runs afoul of recent Supreme Court decisions that have found gun regulations in the District of Columbia and Chicago to be unconstitutional and that the language found in the Bill of Rights protected a fundamental individual liberty. While states may pass reasonable regulations, they cannot, as some cities have done or tried to do, legislate away the Constitution. If that was Cain intended to say, he should have been more clear.

Lastly, I would like to know where in Article I, Section 8 of the Constitution is Congress given the power to bailout and/or partly nationalize financial institutions with taxpayer money. Cain has taken some criticism for his backing of TARP, and justifiably so. He responds with this:

“If they want to nail me with my support for TARP — you know what? I’m not going to be able to counter that,” Cain told TPM in a wide-ranging interview last weekend. “Here’s what we will do — we will have a spot on our website that says, ‘if you really want to know the truth about my position on TARP, go look at this two-minute video.’ If they choose not to, I can’t change that.”
[…]
he said that anyone who thinks of him as a TARP advocate has the wrong idea. While he supported the idea of government pumping cash into banks during the darkest days of the financial crisis, Cain says he takes great issue with how the money was doled out.

“I thought TARP was going to be an opportunity for the government to allow any bank that needed to to restructure its balance sheet,” Cain said. “But it didn’t. It only picked its friends. That’s when I turned against TARP.”

Cain says that the way TARP worked — he said it was used to “reward winners and losers” — was not what he expected. And that turned him from a friend of the program to a foe.

But Cain still speaks highly of the idea of TARP in a way that would probably give some of his supporters pause.

“We needed to do something drastic because we were facing a very drastic situation,” Cain explained. “The concept was fine.”

This explanation is poor. Can assumes that government is an honest player, which it isn’t. It routinely picks winners and losers in various ways; through the Federal Reserve, the tax code, pork projects and government contracts. The bailouts represented the worst of cronyism and corporatism. Moreover, TARP likely made bailouts a permanent policy of the federal government. Either Cain is naive or he thinks you’re stupid enough to believe him.