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The Independence Institute has filed amicus briefs in two of the anti-Obamacare cases. The briefs focus specifically on the Necessary and Proper Clause (I-8-18), which the Obama administration inaccurately claims justifies federal control of health care.
The briefs survey the original meaning of the Necessary and Proper Clause, based on my research and that of three other scholars, published by Cambridge University Press last year in our book, The Origins of the Necessary and Proper Clause.
This podcast includes an exhaustive discussion of the issues involved: . In it, Jason Longo interviews Independence Institute Research Director Dave Kopel and I.
You are certainly right in saying that "necessary and proper" is not a basis for Obama care. As I wrote Vol. 1 of my new treatise on the Constitution: "There is no question that the clause is a power-granting clause. It's designed to give the congress its most basic power—the power to make law in connection with carrying out its other powers.
But what is overlooked is that the clause is also a restriction on power. It has words of limitation on the exercise of the lawmaking power: laws must be both necessary and proper. The word “necessary” carries its own obvious limitations: for the government to carry out a power, it may pass only those laws indispensable or required to effectuate the power. The word “proper” is also restraining. It goes beyond the limit of “necessary”, and in effect modifies “necessary” by eliminating the prospect of a harsh application of that word." (The Kiss of Judice: The Constitution Betrayed: A Coroner's Inquest & Report, p. 373. For information on the book, go to http://douglassbartley.wordpress.com/).
Of course, as I'm sure you realize, there is at least one other, more fundamental, constitutional impediment to Obama care (and most everything else Congress does): the lack of any power to enact that kind of legislation.
I do take issue with the first sentence of your book where you state the U.S. Constitution created a "national government . . . ." As Col. Taylor of Caroline, Judge Spenser Roane, and even Madison himself to a significant extent, said the United States are not a nation but a confederation or league of separate nations–Federal, as opposed to national or consolidated. That very important point is also covered in my treatise:
§2:102. Col. Taylor’s direct case: Why the government is federal, not national187
§2:1020. Federal because Declaration establishes that government is federal, not national and supreme187
§2:10200. ‘Consolidated’ means a fusion of state sovereignties into one mass188
§2:10201. ‘Federal’ is a league between sovereign nations189
§2:1021. Federal because an American nation able to make a national Constitution never existed191
§2:1022. Federal because Constitution was only obligatory upon states that ratified; and because each state comprised a sovereign people, and no people existed, invested with a sovereignty over thirteen states192
§2:1023. Federal because the mere establishment of state governments demonstrated the existence of state nations193
§2.1024. Federal because of the federal convention’s rejection of a resolution calling for a national legislature with a veto over state legislation194
§2:1025. Federal because the word ‘supreme’ used twice in the Constitution does not in either case confer supreme national power. In the one case, it refers to the supremacy of the highest federal court over the inferior federal courts; and in the other the supremacy of the Constitution and laws made in pursuance thereof over all other law197
§2:1026. Federal because national jurisdiction now claimed for federal courts was rejected198
§2:1027. Federal because of conditional ratifications of the state conventions200
§2:1028. Federal because of the 10th Amendment201
§2:1029. Federal because states were explicitly sovereign under Declaration, states voted by states at the convention, states ratified Constitution as states, states amended the Constitution as states, states reserved power of amendment as states, each state had equal representation in the senate, and states vote for president as states208
§2:1030. Federal because union, unlike states, has no innate sovereignty; union is subordinate to states because states had formed union, and can ‘unform’ it209
§2:1031. Federal because of Federalist assurances210
(and for other reasons given in the book)
I do hope to get a chance to read your book, as I am sure it is a very important contribution to overcoming the myths surrounding the "sweeping clause".
Best wishes,