Take the individual mandate, for example. It was fund to be outside the Commerce Power, but within the Taxing Power. What does the 10th amendment have to say about it? If you read the 10th amendment as saying "Congress shall not infringe on the traditional functions of the states to safeguard health, welfare, and morality" then you might say that the individual mandate violates the 10th amendment because healthcare is a traditionally state function. But that's not what the 10th amendment says. All it says is that action which falls outside the Constitutional delegates is unconstitutional. Well if the individual mandate is within the Taxing power, then it is within one of the Constitutional delegations, and is by definition outside the scope of the 10th amendment.
Basically, federal action can never violate the 10th amendment. Either an exercise of federal power is Constitutional under one of the delegations, or it is not supported by any delegation of federal power and is thus unconstitional for that reason.
Re: the expansion of federal power, it's popular but not necessarily accurate to say it has come at the expense of the Constitution. If you had asked the Framers whether a sale of a product in New York, manufactured and shipped from New Jersey, using a bank transaction with a bank and a payment processor located in San Francisco should fall under the purview of the Commerce Power, they probably would have said "yes, that's interstate commerce." Yet, that's what happens when I go downstairs and buy a Snickers bar at the vending machine with my credit card. There is disagreement on this subject, but in my opinion the expansion of federal power hasn't come at the expense of the Constitution, but has come because much more human activity has come within the scope of federal power as it was already defined.
But the only reason that Constitutional justification is even required for the individual mandate is that we have a Tenth Amendment. Again, you only see the Tenth Amendment as a tautology because you take it for granted. There is no guarantee or convention that nations govern themselves this way. In fact, most don't. (Including America, in practice.)
You're conflating the 10th amendment with the general principle that the federal government must trace its actions to enumerated powers. That principle does not come from the 10th amendment, which wasn't even ratified until two years after the Constitution.
Remember, the Constitutional Convention was a convention to rework the Articles of Confederation. The federal government under tha Articles of Confederation was also one of enumerated powers. That facet was part of the Constitutional scheme long before the 10th amendment.
I stand corrected. There is nothing in the 10th to ignore.
I'm not making the argument that expansion of power comes at the expense of the Constitution, and I actually think most of the Framers were fine with such expansion. If you read the initial debates and correspondence you get the impression that the major writers saw an expansion of federal government power as desirable for the health of the Republic as a whole but impossible to achieve at the time.
Where the problem comes is where the federal government increases power as regards individuals. I can effectively argue that the shift in power from States to Federal govt. is reasonable and in line with at least some Framer's intent. I cannot make the same argument about individual rights.
Re: individual rights, one thing to keep in mind is that at the time of the founding, states weren't required to respect individual rights. The states inherited the unlimited sovereignty of the British Parliament--they could do anything they wanted, limited only by their own constitutions. It wasn't until 1925 that the Supreme Court held that the 14th amendment had been intended to apply parts of the Bill of Rights to the state.
So asking "what would the framers have thought about warrentless wiretapping" is a bit misguided, because the framers wrote a document against the assumption that the states were the ones responsible for internal security, and could use their very broad police powers in the process.
Really the question is: are we less free than we used to be? And contrary to popular myth, we reallly aren't. If you're not a white male, you are unarguably freeer than you have ever been in the history of the U.S. Even if you are a white male, you are free from many of the overreaches of state police power that you would have been subject to before the Supreme Court applied the Bill of Rights to the state. And it's at least debatable that internal security measures like warantless wiretapping aren't as extreme as say the Alien and Sedition Acts which were passed less than 10 years after the ratification of the Constitution.
I'm sympathetic to the civil libertarian cause, but when people complain about the erosion of liberties, I have to ask: which ones? First Amendment? First Amendment protections are today the strongest they have ever been. The First Amendment now protects commercial works like video games that in the past might have been seen as outside the scope of First Amendment protection. State-level obscenity laws, libel laws, etc, have been struck down by federal courts. Second Amendment? Until 2010, nothing would have prevented a state like Illinois from banning guns completely--states simply weren't subject to the 2nd amendment at all. Fourth, fifth, sixth amendments? In the 1970's the Supreme Court went on a rampage striking down state practices that they felt violated those amendments. Heck, just in the 2000's, the Supreme Court extended habeas protection to non-citizens in Guantanamo Bay. A hundred years ago, that would have been inconceivable.
When you compare something to the Alien and Sedition Acts, you should remember that the Alien and Sedition Acts almost led to the destruction of the Union entirely and laid the philosophical foundation for the Civil War.
The framers put in the Supremacy Clause in order to effectively limit the sovereignty of the States. Madison and others wanted to go a step farther and add in the negative, but they lost that argument by the vote of one state, the deciding argument being that the Supremacy Clause would allow the Federal government sufficient power to control any State law so egregious as to need federal attention.
They were actually worried about things like that because the Massachusetts State Constitution had failed so completely. As Madison wrote in a 1787 letter to Jefferson, "The mutability of the laws of the States is found to be a serious evil. The injustice of them has been so frequent and so flagrant as to alarm the most stedfast friends of Republicanism"
Re: freedom, I don't think we're particularly less free than we once were, save on the frontiers and most of that is perception, not fact. However, setting precedent for the accepted encroachment of rights, or even the perception thereof, is very dangerous to do on a Federal scale.
The specific laws which concern me have mainly been passed in the 1980s or later; I'm not arguing that we're less free (in law) than we were in 1800 (even though in practice the structure of the economy, technology, etc. did effectively give people more freedom in a lot of ways).
PATRIOT is a big one.
The intelligence wiretapping authorization (especially as expanded in 2001 and 2008)
CDA and COPA (which were later overturned, but are great examples of Congress passing inherently unconstitutional laws "for the children")
I guess right now I'm concerned about the potential for more 2A restrictions -- I'm doubtful that the 1994 AWB was constitutional, and wonder if it would hold up under the current court post Heller and McDonald.
CALEA seems to be at odds with the 4th, but apparently not.
DOMA (which I guess was fixed)
Aside from the recent gun rulings, I'd prefer the laws of 1975 I think.
Take the individual mandate, for example. It was fund to be outside the Commerce Power, but within the Taxing Power. What does the 10th amendment have to say about it? If you read the 10th amendment as saying "Congress shall not infringe on the traditional functions of the states to safeguard health, welfare, and morality" then you might say that the individual mandate violates the 10th amendment because healthcare is a traditionally state function. But that's not what the 10th amendment says. All it says is that action which falls outside the Constitutional delegates is unconstitutional. Well if the individual mandate is within the Taxing power, then it is within one of the Constitutional delegations, and is by definition outside the scope of the 10th amendment.
Basically, federal action can never violate the 10th amendment. Either an exercise of federal power is Constitutional under one of the delegations, or it is not supported by any delegation of federal power and is thus unconstitional for that reason.
Re: the expansion of federal power, it's popular but not necessarily accurate to say it has come at the expense of the Constitution. If you had asked the Framers whether a sale of a product in New York, manufactured and shipped from New Jersey, using a bank transaction with a bank and a payment processor located in San Francisco should fall under the purview of the Commerce Power, they probably would have said "yes, that's interstate commerce." Yet, that's what happens when I go downstairs and buy a Snickers bar at the vending machine with my credit card. There is disagreement on this subject, but in my opinion the expansion of federal power hasn't come at the expense of the Constitution, but has come because much more human activity has come within the scope of federal power as it was already defined.