And therein lies the crux of this problem - our modern day reliance on case law. Unlike what the Founders intended, courts today rarely if ever reach down far enough to determine whether a law is truly constitutional by comparing it to the Constitution's original intent. They merely look at how previous courts have ruled on the matter (and then add a liberal dose of their own foolish reasoning for good measure). This is idiotic, as it means that if the first court got it wrong their error is compounded as subsequent courts build upon the faulty foundation.
Which is where the whole joke of precedence comes in. There was a reason the first Supreme Court had only 5 justices, because all they had to go on was the Constitution. Then it was increased to 7, then 9, and I have no idea where precedence comes from, or who started it.