Arguing from a libertarian viewpoint, Sheldon Richman finds greater virtues in the old Articles of Confederation under which the new United States operated:

“Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” — Article II of the Articles of Confederation

Compare that with this article incorporated into the U.S. Constitution:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” — 10th Amendment

At first glance, the two provisions seem the same. However:

The most significant difference is that Article II qualifies the word ‘delegated’ with ‘expressly’. The Tenth Amendment does not. This suggests that while the Articles of Confederation was explicitly a document of express, enumerated congressional powers, the Constitution apparently was not. The difference was no oversight, but rather a choice made by the delegates to Philadelphia’s Constitutional Convention and later by the members of the Congress.

. . . I will quickly acknowledge that after the Constitution was ratified and the first Congress was in session, something like Article II was added to the Constitution as the Tenth Amendment. Unfortunately the Tenth Amendment is like Article II in the same sense that a whale is like a fish — superficially.

— Sheldon Richman, “The Constitution or Liberty” (2007), Foundation for Economic Education

The crucial difference, says Richman, lies in that word expressly:

. . . when the congressional committee writing the Bill of Rights debated what would become the Tenth Amendment, a House member unsuccessfully proposed adding the word ‘expressly’ to the draft amendment. He was opposed by James Madison. “[I]t was impossible,” Madison said, “to confine a government to the exercise of express powers; there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutiae.”

Thus Madison endorsed the doctrine of implied unenumerated powers, contrary to what he told the public when he was selling the Constitution during the ratification process. At that time he wrote in Federalist 45, The powers delegated by the proposed Constitution to the Federal Government, are few and defined. — Ibid.

According to Richman, the Federalists wanted to let the powers of the new central government remain nebulous:

. . . Professor Calvin H. Johnson of the University of Texas Law School published an illuminating paper titled “The Dubious Enumerated Power Doctrine”. . . . Johnson presents formidable evidence that the framers had no intention of limiting the national government’s powers to the 16 items listed in Article I, Section 8, of the Constitution. They were well aware that the Articles of Confederation had explicitly limited the government’s powers to those expressly spelled out and chose not to transfer this idea to the new Constitution.

. . . Johnson’s argument would not be news to the Anti-Federalists, that group of early Americans who feared the proposed Constitution would create an imperial national government with virtually unlimited power. (It should be noted that southern Anti-federalists like Patrick Henry objected to an expanded national government in part because they feared the taxing power might be used to free their slaves. Thus was a good cause, decentralization of power, perhaps permanently stained by a link to the abomination of slavery. Samuel Johnson had it right: “How is it that we hear the loudest yelps for liberty among the drivers of negroes?”) — Ibid.

During the Constitutional debate, the subject of enumerated powers came up:

When advocates of the proposed Constitution advertised the document as containing express, enumerated powers, the Anti-Federalists and fellow travelers such as Thomas Jefferson scoffed. For example, James Wilson said: “The congressional authority is to be collected, not from tacit implication but from the positive grant expressed in the [Constitution]. …[E]verything which is not given [to the national government], is reserved [to the states].”

To which Jefferson replied:

“To say, as Mr. Wilson does that . . . all is reserved in the case of the general government which is not given . . . might do for the Audience to whom it was addressed, but is surely gratis dictim, opposed by strong inferences from the body of the instrument, as well as from the omission of the clause of our present confederation [Article II], which declared that in express terms.” — Ibid.

In light of the explosive enlargement of the federal government in the past century and its tendency to arrogate more and more power to itself (ObamaCare being just the latest example), Jefferson’s skepticism has been vindicated.

According to Richman, we now face an ironic dilemma — either we enjoy freedom through the Constitution or we exercise freedom by circumventing it:

Calvin Johnson makes a strong case that the Constitution was not intended to put strict limits on the national government. He thinks that is a good thing. No libertarian would agree with him. It is important to separate two issues: what the Constitution appears to say and how we evaluate it. We must resist the temptation to let our political-moral views warp our reading of the document. The ultimate political value for libertarians is not the Constitution but liberty-and-justice. If the former fails to support the latter, we must not hesitate to say so. We gain nothing for the cause by supporting it with arguments that are easily knocked down.

If the foundation of our case for liberty is nothing more than the Constitution — rather than natural-law justice — we will continue to be trumped by our opponents. After all, the Constitution was in effect all during the time the national government expanded and liberty shrank. — Ibid.