Preferred freedoms doctrine
The Preferred Freedoms Doctrine refers to a legal principle that emerged in the United States during the 1930s, whereby the Supreme Court began prioritizing certain fundamental rights, particularly those related to freedom of speech, press, and religion, over economic rights previously emphasized under the doctrine of freedom of contract. This shift was notably marked by cases such as Palko v. Connecticut, which identified fundamental rights as essential to a framework of ordered liberty and warranted protection from state infringement via the Fourteenth Amendment's due process clause.
The doctrine suggests that the Court applies heightened scrutiny to laws that may restrict political processes or affect marginalized groups. This framework was further discussed in United States v. Carolene Products Co., which established a rationale for judicial activism in cases concerning First Amendment rights and equal protection. However, critiques like those from Justice Felix Frankfurter in Kovacs v. Cooper raised concerns about the potential arbitrariness in ranking rights, arguing that such hierarchies may reflect the justices’ political values rather than constitutional text. The influence of the Preferred Freedoms Doctrine continues to resonate in contemporary discussions surrounding equal protection and the interpretation of fundamental rights, shaping the selection of cases that the Supreme Court hears.
Preferred freedoms doctrine
Definition: An attempted ranking of constitutional rights so that some, notably those of the First Amendment, are deemed fundamental to a free society and consequently are given enhanced judicial protection.
Significance: Through the 1940’s the preferred freedoms doctrine was used to explain the Supreme Court’s continued invalidation of laws restricting First Amendment freedoms of speech, press, and religion, even as it ceased to interfere with laws that regulated economic relations.
In the 1930’s the Supreme Court abandoned the doctrine of freedom of contract that had been used since Lochner v. New York (1905) to invalidate economic regulations by states and the federal government. At the same time, the Court seemed to increase its vigilance when freedoms of speech, press, or religion were at issue. In Palko v. Connecticut (1937), the Court distinguished fundamental rights, those that represented “the very essence of a scheme of ordered liberty,” and so would be protected against state abridgment by the due process clause of the Fourteenth Amendment.
In United States v. Carolene Products Co. (1938), the Court proposed enhanced judicial scrutiny of laws restricting the political process or laws aimed at “discrete and insular minorities.” This provided the Court with a rationale for greater activism in First Amendment and equal protection clause cases. However, in Kovacs v. Cooper (1949), Justice Felix Frankfurter criticized any such ranking of rights as not guided by the text of the Constitution and therefore reflecting only the political values of the justices. The preferred freedoms doctrine has continued to influence equal protection and fundamental rights theories. An unstated ranking of freedoms seems to animate the selection of cases through the writ of certiorari.