Preferred Position Doctrine

Preferred Position Doctrine in the United States

Holds that legislative enactments that affect fundamental constitutional rights must be scrutinized more carefully than legislation that does not. The preferred position doctrine says that certain legislative activity deserves priority consideration because it affects such rights as free speech or elections. Any enactment that impinges on such rights must serve a compelling state interest. The burden is clearly on the government to demonstrate justification for limiting a preferred position freedom.

See Also

Balancing Doctrine (Judicial Effects and Policies) Doctrine (Judicial Effects and Policies) Interpretive Approaches (Judicial Effects and Policies).

Analysis and Relevance

The preferred position doctrine is attributed to Justice Harlan Fiske Stone, who said in a footnote to his opinion in United States v. Carolene Products Company (304 U.S. 144: 1938) that a lesser presumption of constitutionality exists when legislation “appears on its face to be within a specific prohibition such as those of the first ten amendments.” Stone further suggested that if legislation restricts politically corrective action in the political processes, courts must engage in a “more exacting judicial scrutiny” when reviewing such enactments. The preferred position doctrine was embraced by a majority of the Supreme Court following the appearance of Stone’s footnote. In such decisions as Murdock v. Pennsylvania (319 U.S. 105: 1943) and Thomas v. Collins (323 U.S. 516: 1945), for example, the doctrine was strongly asserted. Since the late 1940s, the doctrine has not been invoked explicitly. Rather, the Supreme Court has come to prefer a balancing test that gives high priority to fundamental free-doms but does not necessarily presume invalid those laws affecting such freedoms.

Notes and References

  1. Definition of Preferred Position Doctrine from the American Law Dictionary, 1991, California






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