The True Story of Carolene Products
Files
Description
United States v. Carolene Products Corporation, as any second year law student knows, contains perhaps the most renowned footnote in constitutional history. In famous footnote four Justice Stone, writing for himself and three others, suggested that the Court apply relatively strict scrutiny to legislation interfering with the political processes or affecting the rights of “discrete and insular minorities.” Because the Court had but recently abandoned strict scrutiny of economic regulation, the footnote is seen as paving the way for a two-tiered system of constitutional review in which individual rights are afforded greater protection than so-called economic liberties. Today, a half-century later, the footnote is widely honored as a cornerstone of constitutional law, a “great and modern charter for ordering the relations between judges and other agencies of government.” The footnote has spawned noteworthy scholarship; and its seminal ideas have been expanded in works by John Hart Ely and others. The plaudits accorded the footnote are matched by the disregard of the case itself. The facts were not the stuff of great decisions. At issue was the constitutionality of the 1923 federal “Filled Milk Act,” a statute that prohibited the shipment in interstate commerce of skimmed milk laced with vegetable oil. The case appeared to be a routine challenge to an unimportant economic regulation, with the outcome foreordained by recent opinions sustaining other forms of economic regulation. Commentators have denigrated its significance, finding it “unremarkable,” “straightforward,” even “easy.” The lack of attention to the case itself is unfortunate, because it is interesting in its own right, and because its facts shed light on the meaning of the footnote. The statutes upheld in the case was an utterly unprincipled example of special interest legislation. The purported “public interest” justifications so credulously reported by Justice Stone were patently bogus. If the preference embodied by this statures was not “naked,” it was clothed only in gossamer rationalizations. The consequence of the decision was to expropriate the property of a lawful and beneficial industry; to deprive working and poor people of a healthful, nutritious, and low-cost food; and to impair the health of the nation’s children by encouraging the use as baby food of a sweetened condensed milk product that was 42 percent sugar. It is difficult to believe that members of the Court were unaware of the true motivation behind this legislation. That they should nonetheless vote to uphold the statute strongly suggested that all bets were off as far as economic regulation was concerned. Footnote four, in this light, can be seen as indicating that the Court intended to keep its hands off economic regulation, no matter how egregious the discrimination or patent the special interest motivation. Rational basis scrutiny of the sort suggested in West Coast Hotel could not be taken seriously if it precluded judicial protections of individual liberties. By separating economic and personal liberties, Justice Stone suggested that the Court might really mean what it said about deference to the legislative will in economic cases. Two-tiered scrutiny did much more than facilitate the creation of preferred constitutional categories entitled to exacting judicial review. It also freed the forces of interest group politics from the stumbling block of the federal courts. Carolene’s legacy is not only Brown v. Board of Education; it is also the unrivaled primacy of interest groups in American politics of the last half-century. Fortunately for the nations’ consumers, the Carolene Products case itself is no longer the law. Go to any supermarket and you will find filled milk for sale under trade names such as “Milnot” or “Meloream.” Some firms, including the aptly-named Defiance Milk Products Company of Defiance, Ohio, are boldly marketing the product under its original colors. The Supreme Court’s decision in Carolene Products has been overruled, and the statute declared to violate substantive due process. Yet while the injustice of the case itself has been remedied, the footnote remains.
Source Publication
Property Rights in American History
Source Editors/Authors
James W. Ely, Jr.
Publication Date
1997
Volume Number
3: Reform and Regulation of Property Rights
Recommended Citation
Miller, Geoffrey P., "The True Story of Carolene Products" (1997). Faculty Chapters. 2039.
https://gretchen.law.nyu.edu/fac-chapt/2039
