The president’s health care law is now the focus of two debates — one about policy, one about the Constitution.

Most attention in the constitutional debate has been on the mandate that individuals buy health insurance. But another constitutional issue is whether the federal government should be regulating health care at all.

The Founders would have answered “no.”

The Constitution is not only law; it is Super Law. It trumps all other man-made law. It is a justly-honored document that enables our political system to work while protecting us from tyranny.

At the heart of the Constitution is how it divides power to ensure that no set of politicians becomes too strong. In particular, the Constitution restricts the federal government to a set of listed (“enumerated”) powers. Other governmental functions are left to the states. Most of the Founders believed this limit was more important to protecting our freedom than the Bill of Rights.

Does the Constitution allow the federal government to run health care? Some argue that the Constitution’s Interstate Commerce Power does indeed grant this authority.

They are wrong.

The Interstate Commerce Power comes from two separate clauses in the Constitution. The first allows Congress to “regulate commerce . . . among the several states.” The second enables Congress to “make all laws which shall be necessary and proper” for carrying out regulation of interstate commerce.

What does the Constitution mean by “regulating commerce among the states?” When you interpret a legal document, you investigate what it meant to those who adopted it. In the case of the Constitution, we have to examine what the phrase meant to our Founders.

The historical record tells us that when the Founders granted power to regulate “commerce among the states,” they authorized Congress to govern how merchants bought and sold products across state lines. They also included certain closely-connected activities, such as interstate transportation. But the power to regulate commerce did not include the make-up or production of the item sold. Activities such as farming, manufacturing and health insurance were subjects for state, not federal, regulation.

Independence Institute Research Director Dave Kopel and I outline the evidence in a new article you can find at constitution.i2i.org.

The modern Supreme Court concedes that “commerce” is a limited subject. But it has ruled that the other part of the Interstate Commerce Power — the Necessary and Proper Clause — entitles Congress to regulate almost the entire economy, because activities such as farming, manufacturing and insurance “substantially affect” interstate commerce.

Advocates for the health insurance law argue that the law is constitutional because it regulates an economic activity that “substantially affects” interstate commerce.

The background of the Necessary and Proper Clause shows that this reasoning is in error.

Leading Founders such as Alexander Hamilton explained that the Necessary and Proper Clause does not actually grant any authority. It simply clarifies that the power to regulate commerce includes power to oversee certain “incidental” activities — such as obtaining office space for the regulators or requiring that goods shipped across state lines be properly labeled. The Necessary and Proper Clause does not empower Congress to seize control over every citizen’s health care decisions.

The Constitution does allow the states to set up their own health care systems, as Oregon, Tennessee and Massachusetts have done in recent years. But for better or worse, it does not authorize the federal government to impose a one-size-fits-all national system on the American people.

Rob Natelson is a senior fellow in constitutional jurisprudence at the Independence Institute in Golden.

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