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

Preferred Position Doctrine: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Preferred Position Doctrine. This part provides references, in relation to Preferred Position Doctrine, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Preferred Position Doctrine by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Preferred Position Doctrine and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Preferred Position Doctrine or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Preferred Position Doctrine and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Preferred Position Doctrine. Finding these decisions can be challenging. In many cases, researchers about Preferred Position Doctrine should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Preferred Position Doctrine when formerly requested by a designated government officer):

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