Note 279 — ARTICLE III (continued 2)

Kovacs v. Cooper, 336 U.S. 77, 88 (1949) opinion of Justice Reed. See Justice Frankfurter's concurring opinion for a criticism of this rule. For other cases imputing to freedom of religion and the press a preferred position so as to reverse the presumption of validity see Herndon v. Lowry, 301 U.S. 242, 258 (1937); United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938); Thornhill v. Alabama, 310 U.S. 88, 95 (1940); Schneider v. State, 308 U.S. 147, 161 (1939); Bridges v. California, 314 U.S. 252, 262-263 (1941); Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943); Prince v. Massachusetts, 321 U.S. 158, 164 (1944); Follett v. McCormick, 321 U.S. 573, 575 (1944); Marsh v. Alabama, 326 U.S. 501 (1946); Board of Education v. Barnette, 319 U.S. 624, 639 (1943); Thomas v. Collins, 323 U.S. 516, 530 (1945); Saia v. New York, 334 U.S. 558, 562 (1948). Justice Frankfurter has criticized the concept of "the preferred position" of these rights as a phrase that has "uncritically crept into some recent opinions" of the Court, Kovacs v. Cooper, 336 U.S. 77, 90 (1949); and Justice Jackson in a dissent has also opposed the idea that some constitutional rights have a preferred position. Brinegar v. United States, 338 U.S. 160, 180 (1949). "We cannot," he said, "give some constitutional rights a preferred position without relegating others to a deferred position; * * *"