What Is the Definition of the Preferred Position Doctrine?

The preferred position doctrine, also called the preferred freedoms doctrine, is an interpretative rule created through the judiciary branch that analyzes and ranks constitutional rights in order of perceived significance. The preferred position doctrine gives the federal government the right to put certain constitutional rights before others. This power first appeared under the judicial leadership of United States Supreme Court Chief Justice Harlan Stone, who introduced the concept of ranking constitutional rights in a seminal case, Jones v. City of Opelika, heard in 1942.

Although Chief Justice Stone introduced the preferred doctrine in the early 1940s, it was not until the early 1950s that the concept gained traction. The doctrine saw increasing use and popularity under the judicial leadership of Chief Justice Earl Warren, who sat on the Supreme Court from 1953 to 1969.

In addition to favoring certain constitutional rights over others, the preferred doctrine asserts that laws and regulations silent or vague on certain issues that raise issues of constitutionality should be considered constitutional if they provide a public benefit. An example of this is the issue of states having greater power than the federal government in regulating economic activities within their borders. Chief Justice Oliver Wendell Holmes Jr. promoted states’ rights under the Constitution, provided they had a rational basis, during the time he served on the Supreme Court.