He goes a little too far, or not enough, on some points. He talks about how the Founding Fathers (FF) had doctors and hospitals, and would not have dreamed Congress to regulate health care. What the FF did not have, and would not have dreamed of, was powerful insurance companies that interfered with the doctor/client relationship.
In other words, while we often give them quasi god-like status, the FF were bright people, but people nonetheless. They codified some of the things that were dear to them, based upon their immediate experiences often, but they did not have crystal balls. So, to say that the constitution does not mention something (like health care) to support an argument as to why that something is outside the scope of the powers of the government is essentially the same as saying that they foresaw those somethings (health care problems) and made a conscious decision to leave them out. Not plausible.
If the founding fathers did not intend the commerce clause to be used to regulate things like the materials used to manufacture goods, I would also say that they may not have imagined the kinds of environmental abuses unregulated capitalism is capable of, and the sheer scale they are capable of reaching. Think Benjamin Franklin would have condoned environmental abuses? Granted, under common law theories, there would be causes of actions for trespass to chattel and such, but really, isn't it more desirable to prevent the damage through regulation, rather than allow damage to take place, allow the court system to adjudicate fault, and risk companies going down under the weight of the liability? This would result in society (i.e. the government) picking up the tab. All regulation does is put the burden back on the responsible parties (done right, of course. Done wrong, the power to regulate is like the power to tax: the power to destroy; See Marshall in 17 U.S. 327 (1819)).
Next, he talks about the Patriot Act and the two old ladies. He says the judge in the case could not rule the act unconstitutional because the government withdrew the charges. Actually, when a case is capable of repetition and a ruling is desirable, the judge can in fact rule. It's the principle of mootness, and is fairly well established.
Examples (not necessarily the most quoted or persuasive, but I don't currently have Lexis/Nexis access to double check. The Supreme Court case should stand and addresses criminal proceedings):
http://caselaw.lp.findlaw.com/cgi-bin/g ... &invol=147
http://ftp.resource.org/courts.gov/c/US ... -2165.html
More than likely, said Judge was leaned upon by the same government. Not that courageous then was he?
Great, now I've painted myself a bleeding hart pinko commie!
Respectfully, I disagree with your analysis on a couple of points.
First, you are correct that the Founding Fathers did not have a crystal ball and thus could not have anticipated every possible happenstance in the future, including the rise of insurance companies. However, that does not mean that Government authority changes with the times. The Founding Fathers anticipated they could not see the future and put the amendment clause into the Constitution to address that "shortcoming." That way, the Constitution could be changed to fit changing times if need be.
The federal government is supposed to be of limited and defined powers. As Judge Napolitano ("JN") points out, nowhere in the Constitition is health care mentioned. Thus, it follows (from this point of view) that the federal government does not have the authority to interfere in the health care industry to the extent it is attempting at this time. Of course, one could argue whether the Commerce Clause or some other source of federal power allows the health care/insurance regulations currently being debated to be passed, but that is another discussion. My point for now is that JN's position is valid from a scholarly/legal perspective.
Second, in your post above you discuss the case JN talks about in the video. The case involved a couple of elderly folks who are prosecuted (persecuted in my opinion if JN's version of the events is correct) for a "violation" of the Patriot Act. The issue was whether the district court judge in that case could have gone ahead and ruled on the constitutionality of the Patriot Act after the government withdrew the charges.
JN takes the position that the government withdrew the charges for the purpose of preventing the district court judge from ruling the Patriot Act was unconstitutional, which implies that once charges were voluntarily dismissed, the district court could not rule on the issue. You take the position that JN is incorrect about that and that the district court judge could have went ahead and ruled on the constititionality of the Patriot Act under the "mootness principle" despite the withdrawal of charges. You cite a couple of cases with links in support of your position. You even go as far as to say that the district court judge intentionally ignored his ability to rule on the constitutionality of the Patriot Act and suggest it may have been because he was coerced by the Government into doing so.
There a couple of things incorrect with your position. In the first place, the principle you are referring to is not "mootness." When an issue is moot, it is incapable of being ruled upon because it is no longer a real controversy. What you are referring to is a narrow exception to the mootness rule, which leads me to the more important next point.
The two cases you cite not only do not support your position that the district court judge could have gone ahead and ruled on the constitutionality of the Patriot Act after the Government dismissed the charges, they undermine your position-if not outright contradict it. The Supreme Court defined a narrow class of situations where the courts can rule on issues that are moot. As stated in the cases you cited, the situation at issue must be "capable of repetition, yet evade review."
In your cases, the Court points out that such situations frequently arise in class actions. Thus, that is one of the types of cases in which the doctrine can be used. The criminal prosecution JN discusses is not a class action. In your cited cases, the Court goes not to state that "in the absence of a class action, the 'capable of repetition, yet evading review' doctrine is limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Neither element applies to the criminal prosecution JN discusses.
The issue had full opportunity to be litigated in the criminal prosecution and was litigated right up until the Government voluntarily dismissed the charges. Further, there is no reasonable expectation the defendant will be subjected to criminal charges again for the same action. As the Court points out, "a mere physical or theoretical possibility" is insufficient to trigger the doctrine. Rather, there must be a "reasonable expectation" or a "demonstrated probability" that the same controversy will recur involving the same complaining party. The case JN discusses is not one of those cases. Sure, the Government could charge this woman again, but hypothetical isn't good enough according to your cases.
In short, if the cases you cited are good precedent (and I think they are), they undermine your own argument. I've not reasearched this issue in years, but my recollection right now is that the other cases I've read also undermine your position. Thus, I think JN was right and you are not on this issue. I urge you to construct your argument more carefully before essentially accusing a federal judge of giving in to imroper coercion. I'm also surprised that you did not seem to closely read the cases you cited given your claim on these boards that you are an attorney. (I'm not questioning your claim, only pointing out my own surprise).
Discussing what I see as wrong with your Commerce Clause position would only add volumes to this already long post so I'll leave that alone. Suffice it to say that I believe that the Government long ago exceeded its authority under the Commerce Clause. (Of course, the Supreme Court made that possible beginning in the 1930's).