Preferred Position

The ‘‘preferred position’’ (aka ‘‘preferred freedoms’’) doctrine is a judicially created interpretive rule that hierarchically ranks—prefers—some constitutional rights over others. While Chief Justice Stone first used the phrase, dissenting in Jones v. City of Opelika, 316 U.S. 584 (1942), and the rule received its widest application during Chief Justice Warren’s tenure (1953–1969), its antecedents are traceable to earlier twentieth century views.

Justice Holmes’s disparate approach to reviewing statutes foreshadowed the preferred position doctrine. Dissenting in Lochner v. New York, 198 U.S. 45 (1905), Holmes argued that statutes regulating economic activities should be presumed constitutional so long as they have a rational basis. By contrast, dissenting in Abrams v. U.S., 250 U.S. 616 (1919), Justice Holmes contended that statutes regulating speech should not be presumed constitutional but be held to a stricter standard. Justice Cardozo articulated Justice Holmes’s approach as a hierarchy in Palko v. Connecticut, 302 U.S. 319 (1937), distinguishing federal constitutional rights not enforceable (incorporated) against state statutes under the Fourteenth Amendment— because such rights are not ‘‘of the very essence of a scheme of ordered liberty’’—from rights ‘‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’’

Justice Stone penned the most often quoted statement of the doctrine in his footnote 4 to U.S. v. Carolene Products Co, 304 U.S. 144 (1938). Starting from Justice Holmes’s Lochner presumption regarding ‘‘regulatory legislation affecting ordinary commercial transactions,’’ Justice Stone famously continued: ‘‘There may be a narrower scope for operation of the presumptions of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments ...’’

The doctrine’s critics claim that it results in an arbitrary standard, a double standard, or a shifting standard—in effect no standard at all.

JAMES C. FOSTER

References and Further Reading

  • Currie, David P., The Constitution in the Supreme Court: The Preferred-Position Debate, 1941–1946, Catholic University Law Review 37 (Fall 1987): 39.
  • Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review. Cambridge, MA: Harvard University Press, 1980.
  • Mendelson, Wallace. Justices Black and Frankfurter: Conflict in the Court. Chicago: University of Chicago Press, 1961.

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