Preferred Freedoms: The Progressive Expansion of State Power and the Rise of Modern Civil Liberties Jurisprudence

Abstract

In this article I explore the origins of the tradition in constitutional law where by judges identify and extend special protections to a set of "preferred freedoms." I argue that American judges in the nineteenth century were in terested in constructing general protections for liberty broadly defined rather than special protections for a handful of particularly important liberties. They accomplished this by allowing legislative interferences with liberty only when it could be shown that the legislation promoted certain judicially approved public purposes. This limit on legislative power survived until the turn of this century when, in response to industrialization, progressive reformers agitated for an expansion of government powers beyond the limits established in traditional police powers jurisprudence In the 1920s and 1930s, those justices who helped usher in the expansion of state power drew on their familiarity with American pragmatism and their experiences with totalitarianism to forge a new constitutional methodology for the pro tection of individual rights, one that replaced what they viewed as the anachronistic "limited powers-residual freedoms" model with the contem porary "general powers-preferred freedoms" model.