Newton is a great admirer of those who decide cases liberally based on hokum and bombast.
He quotes with admiration Robert Jackson's majority opinion in a 1943 decision upholding the right of Jehovah's Witnesses to refuse to salute the flag in school.
You might wonder why this was anybody's idea of a federal issue, at all.
But never mind.
Newton quotes Jackson.
The first sentence is false as history, the concern for limiting the power of popular majorities being an issue for the men of the Philadelphia convention.
The Bill of Rights was adopted against Madison's urging after the constitution was ratified, and the point was to limit the power of the federal government.
Too, the power of judicial review to which the sentence alludes is in fact not granted in the constitution, and was not even asserted to exist until 1803, when it was immediately and correctly denied, though many might argue not ultimately opportunely, by Jefferson and a great many others.
File that in the drawer marked "Whoppers" in the cabinet of constitutional lacunae.
The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. . . .
The second sentence apparently alludes to an inflated understanding of the First Amendment, conflating a questionable assessment of the effects of the amendment with the amendment itself.
And then again it, as well as the first sentence, also supposes that the same amendment binds the states and not, as the amendment says, the federal congress.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.
This is how liberals write when they decide to claim that the constitution forbids or requires something, though they can find nothing in the constitution that actually does so.
Too, Newton was (of course!) a great admirer of Hugo Black's insistence again and again in his opinions that the privileges or immunities clause of the 14th Amendment "incorporates" the Bill of Rights and means that state law can no more violate its constraints on government than can federal law.
The clause, cut and pasted from the privileges and immunities clause of Article IV, itself cut and pasted from the Articles of Confederation where it had a reasonably clear meaning and real significance, reads as follows in the 14th Amendment.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
This is how it looks in the US constitution's Article IV, already commonly misread.
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
And this is how it originally looked in the Articles of Confederation, Article IV.
The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State, of which the owner is an inhabitant; provided also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.
In sum, as its context within the entire article substantiates, and with the noted exceptions, if you are a "free inhabitant" of state A passing through or sojourning in state B you shall have the privileges and immunities under the law of state B that belong to "free citizens" of state B.
You cannot be denied them, exceptions noted.
The meaning is the same in Article IV of the constitution.
Black's view of the clause in the 14th Amendment is today CATO's position and the position of many liberals, though that opinion and the entire notion of incorporation continue to be rejected by those who do not accept that this one amendment so radically altered, or was meant or even imagined to so radically alter, the character of the constitution and the union.
And there is no clear evidence that the originator, those who passed it in Congress, or those who ratified it in the states ever intended by it to make so great a constitutional revolution as to impose the huge, radical, and novel limitation on state power that would be entailed by forcing state law to comport with the restrictions imposed on the federal government by the Bill of Rights.
And that is really the point.
To read the clause as CATO wishes is to accept that it created very radical and new privileges and immunities for citizens of the United States, privileges and immunities that did not exist beforehand, for example, privileges or immunities from state laws establishing religion or abridging the freedom of the press, or state laws denying jury trials for state offenses.
And yet from its very wording we see the clause allegedly is concerned to protect citizens from abridgment of existing privileges or immunities.
Anyway, the earliest judicial interpreters rejected the view Black espoused and CATO now espouses, alongside numerous liberals.
If CATO is really right about what was meant by that clause you would expect a lot of people would have been howling about it, right then, leaving no doubt the court was full of beans.
As for me, I see the thing as basically gibberish, passed by group-think under the pressures of the Reconstruction Era, in keeping with the traditional, urgent political syllogism,
Something must be done.
This is something.
This must be done.
And were the civil war amendments actually adopted and ratified lawfully, in accord with Article V, fairly interpreted?
Update, for the record and in aid of understanding the significance of the Bill of Rights, here is what the federal congress sent to the states, minus the two that failed.
Congress of the United States begun and held at the City of
New-York, on Wednesday the fourth of March, one thousand seven hundred and
eighty nine.
THE Conventions of a number of the States, having at the
time of their adopting the Constitution, expressed a desire, in order to
prevent misconstruction or abuse of its powers, that further declaratory and
restrictive clauses should be added: And as extending the ground of public
confidence in the Government, will best ensure the beneficent ends of its
institution.
RESOLVED by the Senate and House of Representatives of the
United States of America, in Congress assembled, two thirds of both Houses
concurring, that the following Articles be proposed to the Legislatures of the
several States, as amendments to the Constitution of the United States, all, or
any of which Articles, when ratified by three fourths of the said Legislatures,
to be valid to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the Constitution
of the United States of America, proposed by Congress, and ratified by the
Legislatures of the several States, pursuant to the fifth Article of the
original Constitution.
Amendment I
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and
to petition the Government for a redress of grievances.
Amendment II
A well regulated Militia, being necessary to the security of
a free State, the right of the people to keep and bear Arms, shall not be
infringed.
Amendment III
No Soldier shall, in time of peace be quartered in any
house, without the consent of the Owner, nor in time of war, but in a manner to
be prescribed by law.
Amendment IV
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Amendment V
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a Grand
Jury, except in cases arising in the land or naval forces, or in the Militia,
when in actual service in time of War or public danger; nor shall any person be
subject for the same offence to be twice put in jeopardy of life or limb; nor
shall be compelled in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature and cause
of the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence.
Amendment VII
In Suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be preserved, and no
fact tried by a jury, shall be otherwise re-examined in any Court of the United
States, than according to the rules of the common law.
Amendment VIII
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
Amendment IX
The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people.
Amendment X
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.
The above ten amendments were ratified December 15, 1791.
Update 2.
This is Section 1 of the 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.
Since its passage and especially since about mid-20th Century and ever increasingly, the Supreme Court has erected upon the three clauses of its second sentence an awesome dictatorship over the states, with much spillover onto the federal government, entirely owing to astonishing fairy tales about their meaning.
The Congress has often followed the trail blazed by the courts.
The due process clause repeats that of the Fifth Amendment and insists upon the lawfulness of the most crucial exercises of fundamental executive power.
The equal protection clause was imposed to deal with the refusal of white-dominated state governments to afford the protection of the law, the literal protection of the law, to blacks against waves of terrorism and crime in which those governments, or officials of them, were often personally complicit.
It is about prosecuting and punishing crimes against blacks - against anyone - with the same rigor as those against whites - or other, and that is all it is about.
As to privileges or immunities, enough said, above.
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