1) I agree that regulation of the importation of chocolate bars from one state to another is within the proper power of Congress, though regulation of the actual vending machine would clearly be up to the state. On the other hand, I have read Article I Section 8 many times, and I still cannot agree that Wickard v. Filburn was correctly decided; I would say that the federal regulation of intrastate commerce was necessary to that scheme, but it was improper.

2) I agree that Congress created the Customs Service to carry out an enumerated power according to laws passed by Congress, and would say that the Navy, Internal Revenue Service, and Treasury were created in a manner compliant with the constitution (and its amendments). Health and Human Services, Housing and Urban Development, and the Department of Education are not compliant with the Constitution.

3) I agree that searches of foreigners at the border are not even required to be reasonable, and searches of citizens must only be reasonable. Reading people's correspondence without a warrant was never considered 'reasonable', and I have no evidence that 'metadata' was considered less important than the contents of the correspondence. There is also no provision for 'collecting and storing information about citizens, but not looking at it unless you really want to'.

4) According to my reading of the Constitution, Congress must establish the laws/rules for the collection of revenue, and fund/authorize the relevant agency. After Congress does this, it is the President's job to "take care that the laws be faithfully executed", which I interpret as meaning that they should hire and supervise people to do the job Congress told them to do.

5) I sympathize with your view, but the entire Bill of Rights was meant to be a dead-letter by that definition. I am sure you aware that some founders made the case that the Bill of Rights was entirely superfluous, as the federal government had never been given the power to regulate speech or firearms, search citizens arbitrarily and invasively, force them to confess to crimes, or forcibly station soldiers in their homes. Unfortunately, the Bill of Rights has proven to be vital (if insufficient) to the preservation of liberty.

Regarding (3): There's no direct connection in the Constitution between the word "reasonable" and the word "warrant". "Warrant" is there to to limit the scope of the kinds of warrants that can be generated --- to prevent the "general warrant". "Reasonable" is there to make sure all searches, with or without a warrant, must survive a "reasonableness" test --- they must be related to some legitimate goal of government. If you attempt to design a legal system off the idea that all searches require warrants, you wind up in crazytown: for instance, the police, apprehending a mugger they have just observed holding up a couple at gunpoint, cannot reasonably search the criminal.

Regarding (5): The framers in fact rejected a previous iteration of the language of the 10th Amendment that would have reserved to the states any powers not expressly delegated in the Constitution. So we know that's not what they meant.

Saying that a search "must be related to some legitimate goal of government" is no limitation at all. I would agree that searches incident to arrest (for a cause other than refusing a voluntary search) are not required (by the constitution) to have a warrant, but am not sure what other un-warranted searches are reasonable. The kings of England would certainly say that preventing assassinations and insurrections was "some legitimate goal of government", but it seems the founders disagreed that kings should be ransacking the houses of their subjects.

Yes, I agree that the states were not delegated all powers not expressly delegated by the constitution, but "the people and the states" were. I have never heard a better explanation for the 10th amendment than to say that it was restating the enumerated powers doctrine (though I cannot recall where I first heard that explanation). If you have a better explanation of the 10th amendment, I am very interested to learn what it is.

If you concede that a search incident to arrest requires no warrant, you've already conceded the argument that the Constitution doesn't require warrants for all searches (which is good, because it clearly doesn't), and we can move on.

Regarding your second point: the change was not "states" vs. "people and the states". The change was whether the rights referred to were solely those expressed in the Constitution, or something broader. Broader won. This is an argument you are going to need to take up with the authors of the Constitution, because they do not agree with you.

The 10th Amendment is also about future-proofing the Constitution.

On the one side you have the "But the Framers didn't have machine-guns, or CRISPR." On the other side you have people who would ask "So I don't actually have a right to use strong encryption? I don't have a right to build a rocket? I don't have any rights that were not imagined by the Framers? All new inventions have to be allowed before they can be used?"

Otherwise anything could be "necessary and proper."

So, let's have a hypothetical about something really fundamental: If I could CRISPRize negligible senescence, or superintelligence, do I have the right to do it?

Just because the Constitution does not exclusively enumerate rights does not mean any particular right not enumerated exists. In English law, "rights" arose from law and tradition. It's a fundamentally backward-looking analysis, not a forward-looking one.

Do you have the right to use strong encryption? If you can fit it into a right the framers would have recognized based on English law and tradition (probably free speech), then yes. If not, then no. The 10th amendment has nothing to say about that.

Fundamentally, the Constitution is not really about "rights." The Bill of Rights was added to appease those who were worried the central government would impinge on the traditional rights of Englishmen. But the real purpose of the exercise was to create a powerful, but democratic, central government that had the authority to do the things that needed to be done.

Was the Constitution always interpreted that way? Was it written by people who thought that way? The assertion that the Xth Amendment is a nullity seems to indicate a shift in the way the Constitution fits in law. Or at least it indicates that the interaction between deference to that document and the way US law evolved turned some words that people who wrote them thought meant something into a nullity.

Many people at the time thought the 10th amendment was superfluous: http://tenthamendmentcenter.com/2013/03/05/a-brief-history-o....

To be precise, the 10th amendment is a nullity if you already accept that the federal government is one of enumerated powers. At the time of the founding, that was a novel concept and it probably made some people feel better to have it stated explicitly. But today that's taken as a given. The debate is never over if the government has powers not enumerated, but whether a particular action falls within the scope of an enumerated power. And the 10th amendment tells you nothing about the scope of the enumerated powers.