The Carolene Products Footnote and the Preferred Position of Individual Rights: Louis Lusky and John Hart Ely vs. Harlan Fiske Stone

Article excerpt

We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation....

Rehnquist, C.J., for the majority in Dolan v. City of Tigard, 114 S. Ct. 2309, 2320 (1994)

Footnote four to Carolene Products v. United States(1) is the most famous footnote in constitutional law.(2) Since its appearance in Justice Harlan Fiske Stone's 1938 opinion for the Supreme Court, its meaning has been much debated. Early on, it was interpreted to mean that "personal" rights were to be preferred to economic rights,(3) but in recent years, largely through the efforts of Louis Lusky and John Hart Ely, it has been interpreted more narrowly, justifying judicial activism only when the majoritarian democracy does not work: Ely describes it as "representation-reinforcement," a process-based notion that the courts should use judicial review aggressively only when the electoral process has broken down or is tampered with or when litigants are deemed not to have a fair chance to achieve change at the ballot box, either because of hostile laws or because of prejudice against them. Louis Lusky, who was Stone's law clerk when the footnote was written, differs somewhat from Ely in that he emphasizes the substantive side of the footnote, especially its role as a protection of minority rights. Nonetheless, he has published two books arguing that Footnote Four has been used improperly by the Supreme Court as a roving commission for judicial activism.

Lusky and Ely bring daunting credentials to the debate, and there can be no doubt that the footnote is, in part, concerned both with representation and with the protection of minorities. In rereading Stone's contemporaneous opinions and those of his colleagues, however, I have become convinced that the processbased orientation underestimates the substantive content of the footnote, and that the revisionist attack on the "preferred position" of non-economic rights needs to be refuted. The topic is much bigger than the Carolene Products footnote, and I expect to have more to say on it. This look at what Harlan Fiske Stone, Charles Evans Hughes, Wiley Rutledge and the other members of the Court said about Footnote Four in its early years is, however, a good place to start.


Carolene Products v. United States involved an attack on an old federal law forbidding the interstate shipment of something called "filled milk," a now-forgotten product that sounds something like liquid margarine that you were supposed to put in your coffee.(4) One year earlier, in 1937, the Court had ended the New Deal constitutional crisis by adopting a deferential attitude to congressional and legislative regulation of business. In Carolene Products Justice Stone, speaking for the Court, rejected an attack on the rationality of the ban on filled milk, relying in part on Congress's findings and committee reports. He continued by stating a broad rule of deference:

Even in the absence of such aids the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.(5)

This stated a basic presumption of constitutionality--at least "for regulatory legislation affecting ordinary commercial transactions."(6) But at this point Stone affixed a footnote, numbered four, and reading, in its entirety, as follows:

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 14th. …