Preferred Freedoms

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PREFERRED FREEDOMS

Because first amendment freedoms rank at the top of the hierarchy of constitutional values, any legislation that explicitly limits those freedoms must be denied the usual presumption of constitutionality and be subjected to strict scrutiny by the judiciary. So went the earliest version of the preferred freedoms doctrine, sometimes called the preferred position or preferred status doctrine. It probably originated in the opinions of Justice oliver wendell holmes, at least implicitly. He believed that a presumption of constitutionality attached to economic regulation, which needed to meet merely a rational basis test, as he explained dissenting in lochner v. new york (1905). By contrast, in abrams v. united states (1919) he adopted the clear and present danger test as a constitutional yardstick for legislation such as the espionage act of 1917 or state criminal syndicalism statutes, which limited freedom of speech.

Justice benjamin n. cardozo first suggested a more general hierarchy of constitutional rights in palko v. connecticut (1937), in a major opinion on the incorporation doctrine. He ranked at the top those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." He tried to distinguish rights that might be lost without risking the essentials of liberty and justice from rights which he called "the matrix, the indispensable condition, of nearly every other form of freedom." These fundamental rights came to be regarded as the preferred freedoms. A year later Justice harlan f. stone, in footnote four of his opinion in united states v. carolene products (1938), observed that "legislation which restricts the political processes" might "be subjected to more exacting judicial scrutiny" than other legislation. He suggested, too, that the judiciary might accord particularly searching examination of statutes reflecting "prejudice against discrete and insular minorities."

The First Amendment freedoms initially enjoyed a primacy above all others. Justice william o. douglas for the Court in murdock v. pennsylvania (1943) expressly stated: " freedom of the press, freedom of speech, freedom of religion are in a preferred position." In the 1940s, despite bitter divisions on the Court over the question whether constitutional rights should be ranked, as well as the question whether the Court should ever deny the presumption of constitutionality, a majority of Justices continued to endorse the doctrine. Justice wiley b. rutledge for the Court gave it its fullest exposition in Thomas v. Collins (1945). Justice felix frankfurter, who led the opposition to the doctrine, called it "mischievous" in kovacs v. cooper (1949); he especially disliked the implication that "any law touching communication" might be "infected with presumptive invalidity." Yet even Frankfurter, in his Kovacs opinion, acknowledged that "those liberties … which history has established as the indispensable conditions of an open as against a closed society come to the Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements."

The deaths of Murphy and Rutledge in 1949 and their replacement by tom c. clark and sherman minton shifted the balance of judicial power to the Frankfurter viewpoint. Thereafter little was heard about the doctrine. The warren court vigorously defended not only civil liberties but civil rights and the rights of the criminally accused. The expansion of the incorporation doctrine and of the concept of equal protection of the laws in the 1960s produced a new spectrum of fundamental interests demanding special judicial protection. Free speech, press, and religion continued, nevertheless, to be ranked, at least implicitly, as very special in character and possessing a symbolic "firstness," to use edmond cahn's apt term. Although the Court rarely speaks of a preferred freedoms doctrine today, the substance of the doctrine has been absorbed in the concepts of strict scrutiny, fundamental rights, and selective incorporation.

Leonard W. Levy
(1986)