Footnote Four And American Judicial Review

Footnote four of United States v. Carolene Products Co. has become the most famous footnote in American constitutional law. It has come to stand for one of the most intriguing theory to judicial review, an approach that has attracted brilliant exegesis and equally powerful criticism. When courts deal with some question about the role of the courts in democratic society, or the rights of minorities, they immediately turn back to Carolene Products. This Article attempts to set footnote four of Carolene Products in its historical context.The Carolene Products Company was indicted in 1935 under the federal Filled Milk Act for shipping interstate some packages of "Milnut". The district court sustained a demurrer to the indictment on the ground that the statute was unconstitutional. The government's appeal from district court was argued on April 6, and decided on April 25, 1938. Footnote four of Justice Stone's opinion set out a new theory on which the court could withhold that deference from some kinds of legislation; legislation affecting rights specifically mentioned in the constitution; legislation which interferes with the democratic process; and legislation which affects those "discrete and insular minorities" for whom the democratic process does not work fairly.But the footnote has not attracted as much attention from the academic community. The Supreme Court made little use of footnote four in its early years, and it did not greatly engage the interest of litigants or the lower courts. The concepts of paragraph two and three were only briefly employed, and after that, when footnote four was cited, it was for the preferred position of some freedoms.New interest in the political process and minority representation aspects of the footnote gathered in the 1960s. The Warren Court changed the academy's understanding of and attitude to judicial activism. For the first time since the New Deal, a majority of legal thinkers regarded it as appropriate and natural for the Court to play an activist role. But the footnote was in fact largely ignored by academics and judges until the 1970s or even 1980s.In the 1970s, academic interest in these meanings of the footnote continued to develop. Academic writers saw the opportunity to use it both to argue for the inclusion of new minorities and to justify the steps already taken to protect racial minorities. Ely's 1980 Democracy And Distrust may apply the footnote to a concrete problem in constitutional law.The footnote's fame has been increased. The first case to use the "discrete and insular" minority rationale of Carolene Products to create a suspect class was Graham v. Richardson - by which time the outline of two-tier analysis was already well developed. In Graham, Blackmun used the footnote four rationale to add alienage to race as a suspect classification. The footnote set the groundwork for what became the two-tiered model of judicial review.Footnote four has been the basis for the Supreme Court's subsequent judgments in cases protecting the integrity of the political process or involving so-called "suspect" classifications. Far from it, the Footnote was a pivotal moment in American legal history, ant it set out the path the Supreme Court was to follow in the twentieth century.