Preferred freedoms doctrine Summary

  • Last updated on November 11, 2022

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.

In the 1930’s the Supreme Court abandoned the doctrine of freedom of contract that had been used since Lochner v. New York[case]Lochner v. New York[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[case]Palko v. Connecticut[Palko v. Connecticut] (1937), the Court distinguished fundamental rightsFundamental 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.First Amendment

In United States v. Carolene Products Co.[case]Carolene Products Co., United States v.[Carolene Products Co., United States v.] (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[case]Kovacs v. Cooper[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.

Carolene Products Co., United States v.

Certiorari, writ of

First Amendment balancing

Frankfurter, Felix

Fundamental rights

Judicial activism

Palko v. Connecticut

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