Footnote Four

Footnote Four (of United States v. Carolene Products Co.), 304 U.S. 144 (1938), Carolene Products case argued 6 April 1938, decided 25 April 1938; Stone for himself, Hughes, Brandeis, and Roberts, Cardozo and Reed not participating, McReynolds in dissent, Butler concurring separately, black not concurring in the part of Stone's opinion containing the footnote. (Thus only four justices concurred in the footnote.)

What is probably the most renowned footnote in Supreme Court history appeared in a case that would otherwise be forgotten. In the Carolene Products case, the Court applied the presumption of constitutionality to uphold a law passed by Congress regulating commerce, but included its famous Footnote Four, which contained three paragraphs:


There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. …

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. …

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religions, … or national, … or racial minorities …; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. … (pp. 152–153)

The Carolene Products footnote suggests the appropriateness of applying different degrees of judicial scrutiny to different types of legislation. It appeared one year after the Court had abandoned its previous position of judicial activism in defense of the economic rights of businesses and employers. Typically in such cases, the Court had rigidly scrutinized legislation affecting property rights to determine whether it served a legitimate public purpose and was reasonable in its terms. After 1937 the Court embraced instead a posture of deference to the policy judgments of Congress and state legislatures. It presumed the constitutionality of such laws, and declined to consider whether they were wise, necessary, or desirable. Justice Harlan Fiske Stone's footnote, written in the most tentative terms, suggested that there might be situations in which the presumption of constitutionality should be less stringently applied.

Each of the footnote's three paragraphs identified one possible justification for a less strict application of the presumption of constitutionality. The first paragraph suggested that the presumption might be lessened when the challenged legislation appeared to violate a specific constitutional prohibition. As originally conceived, the footnote did not include this paragraph, which was added at the behest of Chief Justice Charles Evans Hughes, apparently to explain the evident inconsistency between his opinions for the Court in West Coast Hotel Co. v. Parrish (1937), employing the presumption in order to uphold legislation limiting freedom of contract, which is not specifically guaranteed in the Constitution, and Near v. Minnesota (1931), declining to employ the presumption in the case of legislation that abridged the First Amendment guarantee of freedom of the press. The difficulty with this paragraph is that, unless constitutional prohibitions are absolutes, the rights they protect may validly be abridged under certain circumstances, and the paragraph does not explain why courts and not legislatures should make the policy judgments as to when the circumstances justifying abridgment exist.

The second and third paragraphs, originally composed by Stone's law clerk, Louis Lusky, escape this difficulty. They identify instances where the democratic process may be obstructed and imply that courts need not defer to legislative judgments arrived at through a flawed process from which some groups may have been excluded. The second paragraph suggests that greater scrutiny may be appropriate in reviewing legislation restricting effective participation in the political process, such as by limiting the rights to vote, to express political viewpoints, to organize politically, or to assemble (See Assembly and Association, Citizenship, Freedom of; Vote, Right to). Since the presumption of constitutionality rests on the assumption that it is unnecessary as well as improper for courts to review the wisdom or desirability of legislation because bad laws may be repealed through the political process, employment of the presumption loses its fundamental justification when the persons or groups adversely affected by a law find themselves denied effective access to that process.

The third paragraph suggests that, for like reasons, the presumption may be inappropriate for laws that affect “discrete and insular minorities”—powerless groups hated or feared by the majority of society. Because prejudice against religious, national, or racial minorities may skew the political process and distort its functioning, more intensive judicial scrutiny may be called for when laws are targeted at such minorities. Clearly much legislation existed at that time, particularly at the state level, that reflected majority prejudice against African‐Americans, Asians (e.g., laws preventing aliens of Asian ancestry from owning land or pursuing certain occupations), and unpopular religious groups, such as the Jehovah's Witnesses. Members of these groups, precisely because they were the victims of intense prejudice, were incapable of using the political process to protect themselves. The third paragraph reflected an awareness that an even handed but pro forma application of the presumption of constitutionality could leave these groups at the mercy of an intolerant majority, and it provided a theoretical basis for future judicial activism in defense of powerless minorities. Recognition of the need for special judicial protection for such groups is the footnote's greatest strength and the principal reason for its continued vitality.

See also Bill of Rights; Fundamental Rights; Incorporation Doctrine; Preferred Freedoms Doctrine; Strict Scrutiny.

Dean Alfange, Jr.