Perhaps we would instead be asking under which of the "few and defined" Constitutionally-granted powers is the Federal government basing its demand that one private entity retain the personal communications of another private entity.
I heard an excellent discussion of the rights of the people and the powers of the government. One was meant to be expanded and the other only further constrained. And of course the government is confused about which is which.
The constitution simply wouldn't have been ratified: too many states demanded that a bill of rights be added as a condition for ratification of a constitution establishing a strong central government.
