This doctrine holds that some constitutional freedoms, principally those guaranteed by the First Amendment, are fundamental in a free society and consequently are entitled to more judicial protection than other constitutional values. Justice Oliver Wendell Holmes was the first to make this distinction. In Lochner v. New York (1905) and Abrams v. United States (1919), he contended that economic legislation needed simply a rational basis to establish its constitutionality, whereas limitations on freedom of speech could be justified only by a “clear and present danger.”
In Palko v. Connecticut (1937), Justice Benjamin Cardozo justified preference for those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.” They are “the matrix, the indispensable condition, of nearly every other form of freedom” (pp. 327–328). In Footnote Four to his opinion in United States v. Carolene Products (1938), Justice Harlan Stone argued that legislation restricting the political processes or hostile to “discrete and insular minorities” must be subjected to “more exacting judicial scrutiny” (p. 153).
On the Roosevelt Court a majority of justices strongly affirmed this doctrine. Justice William O. Douglas wrote in Murdock v. Pennsylvania (1943): “Freedom of the press, freedom of speech, freedom of religion are in a preferred position” (p. 115). Justice Hugo Black spoke of the First Amendment as the heart of government. But Justice Felix Frankfurter in Kovacs v. Cooper (1949) regarded such ranking as “mischievous” (p. 90). In fact the Court did subsequently find it possible to maintain a rigorous commitment to First Amendment values without specifically using a “preferred freedom” rationale. As Leonard Levy says, “The substance of the doctrine has been absorbed in the concepts of strict scrutiny, fundamental rights, and selective incorporation” (see Incorporation Doctrine).
See also Bill of Rights.
— C. Herman Pritchett
