CAROLENE PRODUCTS COMPANY, UNITED STATES v. Footnote Four 304 U.S. 144 (1938)

Footnote four to Justice harlan f. stone's opinion in united states v. carolene products co. (1938) undoubtedly is the best known, most controversial footnote in constitutional law. Stone used it to suggest categories in which a general presumption in favor of the constitutionality of legislation might be inappropriate. The issue of if and when particular constitutional claims warrant special judicial scrutiny has been a core concern in constitutional theory for nearly fifty years since Stone's three-paragraph footnote was appended to an otherwise obscure 1938 opinion.

The Carolene Products decision, handed down the same day as erie railroad v. tompkins (1938), itself reflected a new perception of the proper role for federal courts. It articulated a position of great judicial deference in reviewing most legislation. In his majority opinion, Stone sought to consolidate developing restraints on judicial intervention in economic matters, symbolized by west coast hotel co. v. parrish (1937). But in footnote four Stone also went on to suggest that legislation, if challenged with certain types of constitutional claims, might not merit the same deference most legislation should enjoy.

Stone's opinion upheld a 1923 federal ban on the interstate shipment of filled milk. The Court thus reversed a lower federal court and, indirectly, the Illinois Supreme Court, in holding that Congress had power to label as adulterated a form of skimmed milk in which butterfat was replaced by coconut milk. Today the decision seems unremarkable; at the time, however, not only was the result in Carolene Products controversial but the theory of variable judicial scrutiny suggested by its footnote four was new and perhaps daring.

Actually, only three other Justices joined that part of Stone's opinion which contained the famous footnote, though that illustrious trio consisted of Chief Justice charles evans hughes, Justice louis d. brandeis, and Justice owen j. roberts. Justice hugo l. black refused to agree to the part of Stone's opinion with the footnote because Black wished to go further than Stone in proclaiming deference to legislative judgments. Justice pierce butler concurred only in the result; Justice james c. mcreynolds dissented; and Justices benjamin n. cardozo and stanley f. reed did not take part.

In fact, the renowned footnote does no more than tentatively mention the possibility of active review in certain realms. The footnote is nonetheless considered a paradigm for special judicial scrutiny of laws discriminating against certain rights or groups. The first paragraph, added at the suggestion of Chief Justice Hughes, is the least controversial. The paragraph hints at special judicial concern when rights explicitly mentioned in the text of the Constitution are at issue. This rights-oriented, interpretivist position involves less of a judicial leap than the possibility, suggested in the rest of the footnote, of additional grounds for judicial refusal or reluctance to defer to judgments of other governmental branches.

The footnote's second paragraph speaks of possible special scrutiny of interference with "those political processes which can ordinarily be expected to bring about repeal of undesirable legislation." To illustrate the ways in which clogged political channels might be grounds for exacting judicial review, Stone cites decisions invalidating restrictions on the right to vote, the dissemination of information, freedom of political association, and peaceable assembly.

The footnote's third and final paragraph has been the most vigorously debated. It suggests that prejudice directed against discrete and insular minorities may also call for "more searching judicial inquiry." For this proposition Stone cites two commerce clause decisions, mcculloch v. maryland (1819) and South Carolina State Highway Dept. v. Barnwell Bros. (1938), as well as firstamendment and fourteenth amendment decisions invalidating discriminatory laws based on religion, national origin, or race. Judicial and scholarly disagreement since 1938 has focused mainly on two questions. First, even if the category "discrete and insular minorities" seems clearly to include blacks, should any other groups be included? Second, does paragraph three essentially overlap with paragraph two, or does it go beyond protecting groups who suffer particular political disadvantage? The question whether discrimination against particular groups or burdens on certain rights should trigger special judicial sensitivity is a basic problem in constitutional law to this day.

Footnote four thus symbolizes the Court's struggle since the late 1930s to confine an earlier, free-wheeling tradition of judicial intervention premised on freedom of contract and substantive due process, on the one hand, while trying, on the other, to create an acceptable basis for active intervention when judges perceive political disadvantages or racial or other invidious discrimination.

Dozens of Supreme Court decisions and thousands of pages of scholarly commentary since Carolene Products have explored this problem. In equal protection analysis, for example, the approach introduced in footnote four helped produce a two-tiered model of judicial review. Within this model, legislation involving social and economic matters would be sustained if any rational basis for the law could be found, or sometimes even conceived of, by a judge. In sharp contrast, strict scrutiny applied to classifications based on race, national origin, and, sometimes, alienage. Similarly, judicial identification of a limited number of fundamental rights, such as voting rights, sometimes seemed to trigger a strict scrutiny described accurately by Gerald Gunther as " 'strict' in theory and fatal in fact."

Though this two-tiered approach prevailed in many decisions of the warren court, inevitably the system became more flexible. "Intermediate scrutiny" is now explicitly used in sex discrimination cases, for example. The Court continues to wrestle with the problem suggested in footnote four cases involving constitutional claims of discrimination against whites, discrimination against illegitimate children, and total exclusion of some from important benefits such as public education. Parallel with footnote four, the argument today centers on the question whether it is an appropriate constitutional response to relegate individuals who claim discrimination at the hands of the majority to their remedies within the political process. Yet, as new groups claim discriminatory treatment in new legal realms, the meaning of "discrete and insular minorities" grows more problematic. Undeniably, however, the categories suggested in footnote four still channel the debate. A good example is John Hart Ely's Democracy and Distrust (1980), an influential book that expands upon footnote four's theme of political participation.

Justice lewis h. powell recently stated that footnote four contains "perhaps the most far-sighted dictum in our modern judicial heritage." Yet Powell also stressed that, in his view, it is important to remember that footnote four was merely obiter dictum and was intended to be no more. Even so, the tentative words of footnote four must be credited with helping to initiate and to define a new era of constitutional development. The questions raised by footnote four remain central to constitutional thought; controversy premised on this famous footnote shows no sign of abating.

Aviam Soifer
(1986)

Bibliography

Ball, Milner S. 1981 Don't Die Don Quixote: A Response and Alternative to Tushnet, Bobbitt, and the Revised Texas Version of Constitutional Law. Texas Law Review 59:787–813.

Ely, John Hart 1980 Democracy and Distrust. Cambridge, Mass.: Harvard University Press.

Lusky, Louis 1982 Footnote Redux: A Carolene Products Reminiscence. Columbia Law Review 82:1093–1105.

Powell, Lewis F., Jr. 1982 Carolene Products Revisited. Columbia Law Review 82:1087–1092.