My name is Tom Renz and I’m a lawyer… yes, I did intend that to mimic an opening confession of an AA meeting and I do not mean to belittle AA – I have the utmost respect for that amazing organization. Rather, at this point, being a lawyer is viewed by many as being a part of a corrupt system that has been weaponized against the people we are to serve. This is truly sad in light of the number of incredible judges and attorneys that have fought so diligently through the history of our nation to provide fair and even-handed justice under the law but is equally accurate in many cases. Unfortunately, the legal profession is facing the same cultural decay that the rest of our society is and for many of the same reasons.
All that said, this article is not about lamenting the decline of legal professionals, but rather to share, what I view, as the reason for the decline. It is my view that the root cause of the loss of faith in the legal profession stems from the actions of lawyers and judges in very cleverly using the law in ways that common sense shows to be unethical while providing just enough “reasoned cover” to facilitate actions that are truly occurring for personal benefit – whether direct or in the form of the promotion of an individual’s ideals rather than the intent of the law. This has clearly occurred in the endless attacks on Donald Trump, the egregious failures of the courts for Kari Lake, and in more ways than I could list regarding the rights of we the people.
Disclaimer: this article could easily fill several volumes of books. I am not going through all the legal nuance but rather presenting my thoughts in a way that I believe I could both argue and also ensure is accessible to people that don’t want to read an encyclopedia.
In rightly overruling Roe v Wade I thought there were a number of absolutely brilliant points made by several of the justices, but Clarence Thomas really stood out to me. A key quote was this:
Considerable historical evidence indicates that “due process of law” merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty or property.
This quote is directly related to the plain text of the 14th Amendment but is also, in my view, tied to the 9th & 10th Amendments. The relevant text of the three Amendments are here:
9th Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
10th Amendment: 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.
Section 1 of 14th Amendment: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
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Before we get any further, let me explain how the hierarchy of law works. In the United States the Constitution is the ultimate authority. If any law contradicts or alters the Constitution, it is invalid. The Amendments to the Constitution are considered part of the Constitution and so they govern all law. When federal and state law conflict, federal law governs, but the federal government is limited in the types of laws it may make by the Constitution (more on this shortly). The role of the courts in relation to the laws is ONLY to interpret their meaning and, where this is a conflict of laws, resolve that conflict under these general principles.
Common sense dictates that words have meaning. If a law says the speed limit is 55 mph and you are driving 56 you are speeding. You may be annoyed if you get a ticket but no one who received a speeding ticket for going to court would say that they were not in violation of the law because the plain language is clear. This is something we the people realize and so when we read the laws and attempt to follow them we simply look at the words and do what they say.
This piece of common sense is the basis for textualism in interpreting the law. Without it the laws are meaningless, and we have chaos because it is impossible to know what the laws mean. Further, the Constitution requires it. If a law is too ambiguous it can be ruled unconstitutional. All this in mind, let’s move on to these Amendments.
The 10th Amendment is critical and limits the federal government to making laws related to the powers the Constitution grants to it. These are very limited (though you probably have not noticed). The reason for this is that our founders wanted the states to be empowered to govern the people with limited interference from the federal government. Over time, despite this very clear intent of the founders – as demonstrated by the plain meaning of the words of the 10th Amendment – the courts have continually expanded the power of the federal government. An absurdly expansive view of the commerce clause and the continued push to expand the boundaries of the administrative state are the two biggest examples of this overreach.
The 9th Amendment is generally ignored by the courts despite it being part of the Constitution. The 9th Amendment essentially reiterates that the federal government MUST be limited in its ability to interfere with the rights of we the people. Their role is specifically limited to the powers enumerated in the Constitution and everything else not regulated by the states is left to the people. Over time, rather than enforcing this Amendment, the courts have found it inconvenient to many of the initiatives the federal government wanted to push (and that many of the judges were favorable to) and so they have continually ruled that the 9th Amendment only applies to enumerated rights which is essentially the opposite of its purpose! James Madison specifically included the 9th Amendment to preserve rights not enumerated in the bill of rights, but the courts have decided that to be an inconvenient interpretation.
So now let’s move on to the 14th Amendment. The plain language of the 14th Amendment does a couple of things. First, it states that if a state is going to create a law that it is entitled to create under the Constitution, that law must not limit the “privileges or immunities” of said citizens. The practical implication of this is that all people receive equal protection under the law. This is why it is [rightly] illegal to make laws that give preferential treatment to one group of people over another. This is also stated again where in stating the right to equal protection under the law.
Equally important, and arguably more relevant, is the due process language. As noted by Justice Thomas, the plain language of the 14th Amendment is clear, no STATE may deny ANY life liberty or property right without due process. This language does not create ANY federal rights, but it does not need to. Those rights were already created or preserved in the other Amendments or the fact that the federal government is ONLY supposed to have the powers to act as enumerated. Rather, the 14th Amendment simple requires that the rights a STATE can limit under the 10th Amendment that touch on life, liberty, or property can only be done so AFTER due process.
Here’s the problem, nothing I said above requires a legal education to understand. You read the words and apply them. This is law and, just like the 55 mph speed limit, is how any normal American would interpret the law. Any law that does not comport with the above discussion is simply unconstitutional. This is not complicated and is the reason people are losing faith in lawyers and the courts.
At this point we have courts ruling that companies like Google can censor American citizens by accepting censorship requests from our government or government proxies under Section 230 of the federal code. Isn’t it clear that censorship is illegal under the 1st Amendment? Does it matter if the government does it directly or indirectly? Isn’t Section 230 illegal if it contradicts the Constitution?
How about vaccine mandates? Even if one were to accept that the 10th Amendment enables a state to regulate vaccination (which one can only accept if you are willing to completely ignore the 9th Amendment) would due process still be required under the 14th Amendment regardless of who you work for?
What about elections? Isn’t voting a right? Isn’t that right to be protected equally? How can we say that a citizen cannot challenge fraud in the election system to protect that right? How can the courts determine that the right to challenge an election where fraud has been alleged in good faith can only be exercised if some absurdly high standard has been met? Doesn’t this essentially nullify the right plainly given in the Constitution?
What about the expansive view of standing? The courts do not want to deal with we the people suing the federal government so if the government does something that is plainly illegal but effects everyone the courts will say that a citizen does not have standing because the injury is not particularized. Shouldn’t ALL citizens have the right to redress if the federal government overreaches? Given that our nation was founded on a distrust of government wouldn’t that be an obvious thing?
How about state overreach? The plain language of the 11th Amendment states that, “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Why is it so difficult to sue your own state when it is violating your rights?
Why is our justice department attacking Donald Trump differently than corrupt players on the Democratic side? The same question applies to General Michael Flynn, and many other Trump allies. Shouldn’t he receive the same equal treatment under the law as the party in power?
The problem is that our legal system has played a game of telephone where a bad ruling a hundred or more years ago stands as precedent and no one wants to deal with it. The result is that we continue to build on loopholes or mistakes which further exacerbate the problem and now, decades or centuries later, we the people can read the plain language of the law and our Constitution and see that the current state of things are simply not even close.
As these absurd results continue to stand, and as we attorneys and judges seem to find ourselves lacking in the courage to challenge those long-standing bad rulings, the people continue to see us as evermore the cause of the problem. It is well past time for the legal profession to find it’s spine. We need to quit worrying about offending our friends or partners at the country club on the weekend and start standing for the law. We all know that what is happening is NOT law and the reason no one is saying anything is because too many of us are making too much money and/or are to terrified of offending someone to speak up. The question is, if the JUSTICE system will not find the integrity and courage to stand for justice, what options will we the people have? It’s time to quit arguing that the person driving 56 is not speeding under the law and start advocating for justice.
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