One seemingly insignificant footnote has had a profound impact on American constitutional law. The case of United States v. Carolene Products Company, decided in 1938, was not remarkable for its ruling on the legality of the Filled Milk Act but instead for a footnote in its majority opinion. This case concerned Milnut, a type of filled milk that posed a threat to the traditional dairy industry during the Great Depression. The dairy sector lobbied Congress resulting in the prohibition of Milnut’s interstate shipping under the Filled Milk Act. You can explore the details of the case in-depth on SCOTUSblog.
Justice Harlan Fiske Stone, writing the majority opinion, affirmed the act without examining its genuine impact on health, deferring to the legislature’s judgment. However, in a footnote—Footnote Four—Stone subtly proposed a principle that steered the trajectory of constitutional law: laws should be presumed constitutional unless they encroach on “discrete and insular minorities”, thereby warranting enhanced scrutiny. This included rights directly enumerated in the Constitution or those affecting political minorities and processes.
Footnote Four effectively laid the groundwork for today’s hierarchical “tiers of scrutiny” that determine judicial review’s rigor in evaluating government actions. Economic laws, such as those dealing with economic freedom, find themselves subject to the lowest tier—rational basis review—where government actions are afforded significant leeway, almost to the point of “anything goes,” as noted in some judicial assessments.
Justice James Clark McReynolds, a notable dissenter and known defender of economic rights, declined to author a dissenting opinion, which left many pondering the potential impact of a reasoned argument from him. His reticence has become a focal point of speculation, as Footnote Four evolved beyond Stone’s intent to spark debate, becoming instead a pivotal constitutional doctrine.
The far-reaching implications of Stone’s footnote illustrate its longevity in shaping judicial interpretation, far beyond the immediate outcome of the Carolene Products case and the fate of Milnut. This case stands as a testament to how a small piece of text can influence the interpretation of rights and governmental powers for generations.