The Carolene Products footnote and the preferred position of individual rights: Louis Lusky and John Hart Ely vs. Harlan Fiske Stone.

• Author: Linzer, Peter

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.

1. CAROLENE PRODUCTS AND FOOTNOTE FOUR

   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. See Stromberg v. California, 283 U.S. 359, 369-370; Lovell v. Griffin, 303 U.S. 444, 452.

   It is unnecessary to consider now whether legislation which restricts those political processes, which can ordinarily be expected to bring about repeal of undesirable legislaiton, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the [14th] Amendment than are most other types of legislation. On restrictions upon the right to vote, see Nixon v. Herndon, 273 U.S. 536; Nixon v. Condon, 286 U.S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co., 297 U.S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 369; Fiske v. Kansas, 274 U.S. 380; Whitney v. California, 274 U.S. 357, 373-378; Herndon v. Lowry, 301 U.S. 242; and see Holmes, J., in Gitlow v. New York, 268 U.S. 652, 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U.S. 353, 365.

   Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U.S. 510, or national, Meyer v. Nebraska, 262 U.S. 390; Bartels v. Iowa, 262 U.S. 404; Farrington v. Tokushige, 273 U.S. 284, or racial minorities, Nixon v. Herdon, supra; Nixon v. Condon, supra: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina v. Barnwell Bros., 303 U.S. 177, 184, n.2, and cases cited.(7)

   Thus, in broad terms the first paragraph deals with express rights, the second with the political process and the third with unpopular minorities.

2. A THRICE-TOLD TALE: THE WRITING OF FOOTNOTE FOUR

   In his books, By What Right?(8) and Our Nine Tribunes(9) and in a 1982 Columbia Law Review article, Footnote Redux: A Carolene Products Reminiscence,(10) Professor Louis Lusky has described the process by which the footnote was created.(11) Harlan Fiske Stone had for many years been the Dean of Columbia Law School and during his twenty-one years on the Supreme Court his clerkship generally went to Columbia's star graduate.(12) During the 1937 Term Lusky was Stone's law clerk, and he wrote the first draft of the footnote.(13) The first sentence of Lusky's original draft set its tone:

   Perhaps the attacking party bears a lighter burden where the effect of the statute may be to hamper the corrective political processes which would ordinarily be expected to bring about repeal of unwise legislation.(14) Stone struck this out,(15) but did write a footnote that kept most of Lusky's ideas and most of the remainder of Lusky's draft.(16) Stone then circulated his printed draft of the Carolene opinion, with a footnote four that was substantially similar to what became the second and third paragraphs in the finished product. In place of Lusky's opening, Stone began:

   Different considerations may apply, and one attacking the constitutionality of a statute may be thought to bear a lighter burden, when the legislation aims at restricting the corrective political processes which can ordinarily be expected to bring about repeal of undesirable legislation.(17)

   Like Lusky's draft, Stone's draft suggested the appropriateness of closer judicial scrutiny when there was a failure of "corrective political processes," either through restrictions on political activity or because of prejudice against "discrete and insular minorities" who would thus not be able to use the political processes.

   When Stone circulated the draft, Chief Justice Hughes responded with a very basic objection:

   I am somewhat disturbed by your Note 4.... Is it true that "different considerations" apply in the instances you mention? Are the "considerations" different or does the difference lie not in the test but in the nature of the right involved? When we say that a statute is invalid on its face, do we not mean that, in relation to the right invoked against it, the legislative action raises no presumption in its favor and has no rational support? Thus, in dealing with freedom of speech and of the press, as in the recent Lovell case, the legislative action putting the press broadly under license and censorship is directly opposed to the constitutional guaranty and for that reason has no presumption to support it....(18)

   Stone replied to Hughes on the next day and said that he had revised the footnote "[i]n view of your letter."(19) The rest of Stone's letter gives us insight into his thinking:

   You are quite right in saying that the specific prohibitions of the first ten amendments and the same prohibitions when adopted by the Fourteenth Amendment leave no opportunity for presumption of constitutionality where statutes on their face violate the prohibition. There are, however, possible restraints on liberty and political rights which do not fall within those specific prohibitions and are forbidden only by the general words of the due process clause of the Fourteenth Amendment. I wish to avoid the possibility of having what I have written in the body of the opinion about the presumption of constitutionality in the ordinary run of due process cases applied as a matter of course to those other more exceptional cases. For that reason it seemed to me desirable to file a caveat in the note, without, however, committing the Court to any proposition contained in it. The notion that the Court should be more alert to protect constitutional rights in those cases where there is danger that the ordinary political processes for the correction of undesirable legislation may not operate has been announced for the Court...