SCOTUS decided some decades after the Constitution that they had the right to decide what was Constitutional or not.
That would incentivize government types to stay within their constitutional power boundaries.
The Supreme Court has upheld civil asset forfeiture as largely Constitutional, and left it to Congress to define the scope of how it's used.
The Constitution did not actually give them that right. In order to take that role Constitutionally, there should have been an Amendment. Ever since then SCOTUS has been deciding that the Constitution can be interpreted to support whatever "good idea" the judges feel like supporting that week.
My point is that when debating whether or not an idea seems Constitutional, one must always go back to first principles, to the original text and the writings of the Founding Fathers that help us understand what was meant. That's what really matters. Every SCOTUS decision after that should lent relatively little weight.
More when the decision seems to track the Founding Fathers orginal intent, less when it seems to diverge. We shouldn't be lemmings and just passively accept that "what SCOTUS says, goes", because that's not what the Constitution says.
I assume you're referring to Marbury v. Madison. But judicial review was around even before the United States was formed and that was certainly known to the founders when the Supreme Court was explicitly created and required by the Constitution.
If you argue that the Supreme Court *can't* interpret the Constitution, then how are they a co-equal branch of government? Congress could ignore the Constitution and make up any law they want and the court would no longer have any teeth.
In this instance you're talking about an implied power (Article 3 Section 2
). But the Constitution can also be vague with implied powers in the other branches too -- I'm thinking of Congress "To make all Laws which shall be necessary and proper", for another example.
Anyhow I'm not a lawyer but that second thing I bolded is pretty out there.
Not pretty out there. There's a huge grab bag of SCOTUS decisions that are at odds with the Constitution, usually each gave authority to the federal government. Each decision was based on "what SCOTUS wanted" not "what the Constitution authorized". The basis of each decision was "precedence" not the Constitution. So whenever SCOTUS wants to exceed it's mandate, it looks to precedence to find a way. That's why, I'd argue, SCOTUS needs to look primarily at the Constitution when deciding the Constitutionality of an issue, and be wary of be too strongly influenced by precedence.
The weakness of precedence is that court decisions can diverge, inch by inch, farther and farther away from the Constitution and the writings of the Founding Fathers. So much so that after a couple hundreds of years, precedents exist that are the opposite of the Founding Fathers intended. My recollection is that the heavy dependence on precedence was a shift in legal thinking that appeared around the 1870's or so.
Re. "if you argue that SCOTUS can't interpret the Constitution...." I did not so argue.
The intent of "make all laws necessary and proper" was to give the federal government that authority to make that laws that would support it's Constitutional authority. But since then the clause has been routinely interpreted as providing the authority to "make any law it wants, as long as that law is necessary".
The Constitution has a mechanism for change. We just don't use it because it's inconvenient. As a result we have a federal government that can seize any power it wants....every Constitutional boundary to it's power has been interpreted out of existence.
"If only he had used his genius for niceness, instead of Evil." M. Smart