Great piece by Napolitano in the Wall Street Journal. He argues there is no constitutional authority for Congress to regulate the provision of healthcare; and that it is not to be found in the commerce clause.
I agree… but the more skeptical I get of the Constitution’s legitimacy and the events that led to its founding (in part due to Hummel’s great article and others), I wonder if the commerce clause really was intended to be so limited–and if its original understanding is as innocuous and limited as we libertarians often argue, and would like to believe. Sheldon Richman argues (based on Crosskey et al.) that of course it was meant to centralize power, but the federalists had to pretend it did not during debates with the anti-feds (which could affect the public meaning of the words ultimately ratified, I suppose, but still). I.e., maybe Wickard v. Filburn was right–maybe the IC clause is basically a (sneaky) grant of plenary legislative power to Congress–which means there is even more reason to reject the Constitution’s validity.
To be clear, I don’t quite accept Richman’s reasoning–for one reason, Richman’s vision of the meaning of federalism and enumerated powers is somewhat different from mine in this regard, since he takes the term “perpetual union” to prohibit secession, which is ridiculous in my view (the word “perpetual” is not a grant of power to the feds to do anything about it), making me skeptical of his reading of the IC clause as well. No doubt the federalists wanted to centralize; but I think they were not able to do it completely; the antifederalists blocked them, and forced them to give public declarations of the meaning of unclear terms before ratification, which has some bearing on the original public meaning of these provisions–that is, the antifederalists succeeded in boxing in the federalists. At least to some degree.