Preferred Freedoms

Author:Leonard W. Levy

Page 1990

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...

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