April 25, 1938 – The Case of Carolene Products, or, The Most Famous Footnote in the History of Law

In 1923, Congress banned the interstate shipment of “filled milk” (so-called milk made from skimmed milk with added fat or oil). A Michigan corporation, indicted for shipping filled milk, challenged the law. In the otherwise unremarkable case of United States v. Carolene Products Co., the Court upheld the act [Federal Filled Milk Act of 1923 (21 U.S.C.A. § 61 et seq.)] but also set forth a philosophy for a new jurisprudence in a footnote to Justice Harlan Stone’s opinion for the Court.

Specifically, United States v. Carolene Products Co., 304 U.S. 144 (1938), is significant in three respects:

First, it contributed to discrediting the doctrine of substantive due process as applied to economic regulation.

Second, in its famous Footnote Four, it alluded to how the Court might thenceforward interpret other kinds of regulation in light of the due process clauses of the 5th and 14th Amendments.

Third, it specifically singled out the disadvantage of “discrete and insular minorities” in majoritarian systems; a situation which therefore may call for “a more searching judicial inquiry.” Thus, it also carved out an exception for the rejection of substantive due process.

The Carolene Products Company was indicted in 1935 under the federal Filled Milk Act for interstate shipping of “Milnut.” The sole business of the company was the sale of three products, known respectively as `Milnot,’ `Milnut,’ and `Carolene.’ All three were milk substitutes resulting from the mixture of coconut oil, skimmed milk, and fish oils (called Carolene). The lower court had found Milnut to be “an adulterated article of food, injurious to the public health” under the statute. The defendant company appealed, challenging the constitutionality of the statute under the due process clause of the 5th amendment.

Prior to the West Coast Hotel case (West Coast Hotel v. Parrish, 300 U.S. 379, 1937), the Court had routinely found statutes that limited “freedom of contract” or regulated economic activity to be unconstitutional based on the due process clauses of the 5th and 14th Amendments. (The Fifth Amendment reads “No person shall be…deprived of life, liberty, or property, without due process of law…. The Fourteenth Amendment reads “No State shall…deprive any person of life, liberty, or property, without due process of law….”) The specific liberty so infringed was that of “freedom of contract,” a judicially created right. Using the due process clauses to rule on the “substance” of legislation rather than the process used to enact it is known as “substantive due process,” and it is this doctrine that the Court now rejected.

In Carolene Products, the Supreme Court upheld the constitutionality of the regulatory scheme. It deferred to the expertise and findings of the legislature even though the defendant in the case had had no opportunity to challenge the legislative findings in a judicial proceeding. In so ruling, the Court had to abandon the presumption of unconstitutionality that it had applied in earlier cases like Lochner, which it implicitly overruled, and struck the death knell to the doctrine of substantive due process as applied to economic regulation. (In Lochner v. New York, 198 U.S. 45, 1905, the Court established a principle of safeguarding private business from government encroachment.)

But in addition, Justice Stone, the author of the opinion, did not want to make it any easier for legislatures to infringe non-economic fundamental rights. It was not necessary to distinguish “fundamental rights” from other less important rights to decide the Carolene Products case. However, Justice Stone wanted to give some guidance for future interpretation of the due process clauses of the 5th and 14th Amendments, distinguishing cases in which the Court would apply “strict scrutiny” from those in which it would not. He chose a footnote in which to address the harder question of whether the presumption of constitutionality should apply in cases involving not business liberties but civil liberties. Hence the famous Footnote Four.

Justice Harlan Fiske Stone

Justice Harlan Fiske Stone

It is reproduced here in full (except for included citations):

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 religious, 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.”

It is the third paragraph of Footnote Four concerning the protection of minorities which has had the most lasting impact.

The Court had previously addressed the issue of judicial protection of minorities, but never before in the sense of a characteristic of the group itself requiring special judicial solicitude. (Robert Cover, “The Origins of Judicial Activism in the Protection of Minorities,” 91 Yale LJ 1287, 1982). Rather, previous cases dealt with the losing electoral factions or sectional minorities. Cover reports that one earlier case, in 1872, did mention “Negroes” as a group meriting special protections, but the Reconstruction backlash essentially quashed this dicta from being expanded.

Cover wrote: “Paragraph three of the footnote rescued that lost opportunity by identifying discrimination against racial minorities as a characteristic vice of majoritarianism in the twentieth century.” (Majoritarianism refers to the belief of the legislative majority should hold sway over the courts.) More judicial scrutiny is warranted, according to this paragraph, for discrete and insular minorities because they are groups that are characteristically subject to prejudices, and usually lack efficacy in challenging the political process. That is, “a discrete and insular minority cannot expect majoritarian politics to protect its members as it protects others” (Cover). And, as pointed out in paragraph two of Footnote Four, “prejudice and race hatred are also levers of manipulation in the mass political arena.”

Significantly, as observed by legal scholar Lincoln Caplan:

[Justice Stone] addressed a question that had been paramount since the founding of the Republic regarding the role of the judiciary in American governance: Why isn’t it anti-democratic for unelected judges to overturn decisions of elected officials? It isn’t anti-democratic, the Justice said, if judges follow the principles of judicial review framed by the footnote.”

According to Bruce Ackerman in “Beyond Carolene Products” (98 Harv. L.R. 713, 1985), Carolene not only “seizes the high ground of democratic theory” by establishing that legislation can be produced by a “profoundly defective process” but it also “suggested an enduring role for the judiciary.” And, as Ackerman argues, the very vagueness of the terms also ensures an enduring role for the Courts, in defining just who should be considered as discrete, as insular, and as a minority.

Thus, as Professor Lea Brilmayer noted in “Carolene, Conflicts, and the Fate of the Inside-Outsider,” (134 Univ. Pa. L.R. 1291, 1986):

United States v. Carolene Products Co is no longer only a case. It is a line of reasoning, and one so venerable as to have achieved almost axiomatic status in a world where virtually every other proposition of constitutional law is best considered controversial. It is, in Justice Powell’s words, ‘the most celebrated footnote in constitutional law.’”

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