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Footnote 4

Further Readings

Footnote 4 is a footnote to United States v. Carolene Products Co., 304 U.S. 144, 58 S. Ct. 778, 82L. Ed. 1234 (1938), in which the U.S. Supreme Court upheld the constitutionality of the Filled Milk Act, 42 Stat. 1486, which Congress passed in 1923 to regulate certain dairy products. Written by Justice HARLAN F. STONE, footnote 4 symbolizes the end of one era of constitutional JURISPRUDENCE and the dawning of another.

In upholding the constitutionality of the Filled Milk Act, the Supreme Court drew a distinction between legislation that regulates ordinary economic activities and legislation that curtails important personal liberties. The constitutional authority of state and federal legislatures over economic matters is plenary, the Court said, and laws passed to regulate such matters are entitled to a presumption of constitutionality when reviewed by the judicial branch of government.

Courts must pay great deference to legislation that is principally aimed at economic affairs, the Court continued, and judges should refrain from questioning the wisdom or policy judgments underlying such legislation. Although some commercial laws may seem undesirable or unnecessary to a particular judge, the Court cautioned, the judicial branch may not overturn them unless they fail to serve a rational or legitimate purpose.

This deferential posture toward the legislative branch represents the crux of judicial self-restraint, a judicial philosophy that advocates a narrow role for courts in U.S. constitutional democracy. Because state and federal legislatures are constitutionally authorized to make the law, proponents of judicial self-restraint argue, courts must limit their role to interpreting and applying the law, except in the rare instance where a piece of legislation clearly and unequivocally violates a constitutional provision, in which case they may strike it down.

In footnote 4 the Supreme Court indicated that this presumption of constitutionality might not apply to certain categories of noneconomic legislation. Legislation that restricts political processes, discriminates against minorities, or contravenes a specifically enumerated constitutional liberty, the Court said, may be subject to "more searching judicial scrutiny."

Legislation that limits the right to assemble peaceably, the freedom to associate, or the liberty to express dissenting viewpoints, the Court suggested, tends to obstruct ordinary political channels that average citizens traditionally rely on to participate in the democratic process. By the same token, the Court suggested that legislation discriminating against racial, religious, and ethnic minorities tends to marginalize groups that are already politically weak and vulnerable.

The Court also reasoned that legislation contravening a specifically enumerated constitutional right should be given less deference by the judiciary than legislation that purportedly contravenes an unenumerated right. This passage in the Court's opinion alluded to its decision in an earlier case, LOCHNER V. NEW YORK, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), which has been maligned throughout the twentieth century.

In Lochner the Supreme Court recognized an unenumerated freedom of contract that is loosely derived from the Fifth and Fourteenth Amendments to the U.S. Constitution. Based on this freedom, the Court struck down a New York law (N.Y. Laws 1897, chap. 415, art. 8, § 110) that regulated the number of hours employees could work each week in the baking industry. The Court said employers and employees enjoy an unwritten constitutional right to determine their wages, hours, and working conditions without government interference.

Over the next thirty-two years, state and federal courts relied on Lochner to invalidate scores of statutes that attempted to regulate employment relations, business affairs, and various property interests. At the same time, the Supreme Court was upholding legislation that restricted specifically enumerated constitutional liberties, such as the FREEDOM OF SPEECH. For example, in SCHENCK V. UNITED STATES, 249U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 (1919), the Supreme Court upheld the ESPIONAGE ACT OF 1917, 40 Stat. 217, which prohibited the circulation of printed material that encouraged resistance to the military draft during WORLD WAR I.

The reasoning of footnote 4 helped bring an end to the Lochner era and a reversal of the judicial standards of review for economic and noneconomic legislation. Before Carolene Products, legislation that in any way touched upon an economic interest was subject to judicial scrutiny. During the same period, state and federal courts gave leeway to legislation touching upon noneconomic freedoms, even the personal freedoms expressly contained in the BILL OF RIGHTS.

Since Carolene Products, state and federal legislatures have been given wide latitude to regulate the workplace, commercial interests, and other economic matters. Conversely, laws that have hindered access to political processes, discriminated against minorities, or impinged on fundamental freedoms contained in the Bill of Rights, as made applicable to the states through the FOURTEENTH AMENDMENT, have been deemed suspect, and subject to strict judicial scrutiny. Such laws are typically invalidated by the judiciary unless the government can demonstrate that they serve a compelling interest.

The legacy of footnote 4 can be observed in cases where the Supreme Court has expanded the class of minorities who are protected by heightened judicial scrutiny. In addition to the racial, ethnic, and religious minorities referenced in footnote 4, women, illegitimate children, and other "discrete and insular" minorities have received increased constitutional protection by the Supreme Court since 1938.


Judicial Review; Strict Scrutiny.

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