Q, That is exactly why the idea of 9 politically appointed bureaucrats sitting on the supreme court should NOT be allowed to "interpret" the words of the Constitution to fit their particular whims at any given time in history. Taft, and his coherts should have been impeached by Congress THEN!! It would have at least awakened people {including judges} of the dangers involved in allowing the current Supreme Court to make such un-Constitutional rulings. Because, now there is "case law" {not law at all, but the opinion of those 9 justices serving at the point in time the ruling was made}. So, we now have judges rulings having the color and force {that's guns} of law without legitimacy {unconstitutional}. Should that be allowed? Suppose 5 of those nine happen to be pure evil, at any given time, or can be persuaded to evil easily in order to not "appear" to be "patriotic" in the current philosophy of the day. This is NOT good. Peace and love, George.
Unfortunately, that's our system. But from the embarassing Dred Scott case to Brown v. Board of Education, it's the same court.
There's a huge amount of law around the concept of judicial review, so I'll only skim. While it isn't expressly granted in the Constitution, the practice has existed in the judicial system since before the U.S., and was an assumed power by the FFs who have written on the subject.
Judicial review comes in part from the idea the it's the court's job to decide on the operation of laws when two laws conflict -- interpreting laws, which is what judges do. Thus:
If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." (Marshall)If the Supreme Court did not have this power, then Congress could pass quite unconstitutional laws at its pleasure. Imagine that Congress authorized a secret panel that could try you in absentia for any made up crime and order you shot on the street at next opportunity. What's to stop them from violating the Constitution in this way if they felt they could get away with it?