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February 20, 2015


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Kenneth Medenbach

"We the People," Interpret the Constitution.
In my 1997 appeal from U.S. District Court in Washington State, I argued against the constitutionality of federal ownership of unappropriated public lands in Washington State. In that appeal I also argued that the Constitution does not confer upon federal courts the power of judicial review. I stated, Marbury v. Madison, 5 U.S. 137 (1 Cranch 137) (1803), was wrongly decided. The 9th Circuit Appeals Court concluded my argument against the constitutionality of judicial review was merit-less, because I offered no reasoning or case law to support my contention that Marbury v Madison should be overruled.
Seventeen years later, here is my reasoning to support my contention that Marbury v Madison should be overruled.
The common language of the Constitution does not give the Supreme Court the authority to strike down a law as unconstitutional. That authority rests on a theory used in the Marbury v. Madison decision in 1803, of which an unconstitutional oath of office imposed on the judiciary by the Judiciary Act of 1789, was used as the justification for the power of judicial review.
Congress imposed an unconstitutional second oath of office and then with that oath of office the Supreme Court delegated the unconstitutional power of judicial review, to itself. Towit: ” I, _____, do solemnly swear or affirm that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _____, according to the best of my abilities and “understanding, agreeably “to the Constitution and laws of the United States. So help me God. (Judiciary Act of 1789, 1 Stat. 73, Sec.8)
A judge swearing to discharge his duties agreeably to the Constitution of the United States is then defined in Marbury v Madison, the Supreme Court said, “Why does a judge swear to discharge his duties agreeably to the Constitution of the United States, if that constitution forms no rule for his government? If it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime”.
According to Marbury v. Madison, it becomes a crime for a congressman to prescribe this oath and a crime for a justice or judge to take this oath, if the Constitution is closed upon him and cannot be inspected by him , thus, if a justice of judge takes this oath, the Constitution is not closed upon him and must be inspected by him or it will be a crime. This is the unconstitutional power of judicial review.
Under Article VI, Sec. 3 of the Constitution, all United States justices and judges shall be bound by one oath to “support the Constitution”.
The unconstitutional second oath of office in Marbury v. Madison of “understanding, agreeably to the Constitution” and the constitutional oath of office to “support the Constitution” have different meanings. Otherwise everybody who takes an oath of office to “support the Constitution,” which is everybody in government except the president, would have the power to strike down a law as unconstitutional or more commonly known as, judicial review.
The power to “understanding, agreeably to the Constitution” is not a power delegated to the United States, by the Constitution. The power to “support the Constitution,” is delegated by the Constitution.
The 10th Amendment states: “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.”Since all State employees are bound by oath to support the Constitution, they are prohibited by the Constitution to “understanding, agreeably to the Constitution,” thus, “We the People,” are delegated the reserve power of understanding, agreeably to the Constitution or judicial review.
With this power “We the People,” can force the President, the Supreme Court and Congress to adhere to the common language of the Constitution.
“The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches.” —Thomas Jefferson to W. H. Torrance, 1815. ME 14:303

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