Footnote four to Justice HARLAN F. STONE'S opinion in UNITED STATES V. CAROLENE PRODUCTS CO. (1938) undoubtedly is the best known, most controversial footnote in constitutional law. Stone used it to suggest categories in which a general presumption in favor of the constitutionality of legislation might be inappropriate. The issue of if and when particular constitutional claims warrant special judicial scrutiny has been a core concern in constitutional theory for nearly fifty years since Stone's three-paragraph footnote was appended to an otherwise obscure 1938 opinion.
The Carolene Products decision, handed down the same day as ERIE RAILROAD V. TOMPKINS (1938), itself reflected a new perception of the proper role for federal courts. It articulated a position of great judicial deference in reviewing most legislation. In his majority opinion, Stone sought to consolidate developing restraints on judicial intervention in economic matters, symbolized by WEST COAST HOTEL CO. V. PARRISH (1937). But in footnote four Stone also went on to suggest that legislation, if challenged with certain types of constitutional claims, might not merit the same deference most legislation should enjoy.
Stone's opinion upheld a 1923 federal ban on the interstate shipment of filled milk. The Court thus reversed a lower federal court and, indirectly, the Illinois Supreme Court, in holding that Congress had power to label as adulterated a form of skimmed milk in which butterfat was replaced by coconut milk. Today the decision seems unremarkable; at the time, however, not only was the result in Carolene Products controversial but the theory of variable judicial scrutiny suggested by its footnote four was new and perhaps daring.
Actually, only three other Justices joined that part of Stone's opinion which contained the famous footnote, though that illustrious trio consisted of Chief Justice CHARLES EVANS HUGHES, Justice LOUIS D. BRANDEIS, and Justice OWEN J. ROBERTS. Justice HUGO L. BLACK refused to agree to the part of Stone's opinion with the footnote because Black wished to go further than Stone in proclaiming deference to legislative judgments. Justice PIERCE BUTLER concurred only in the result; Justice JAMES C. MCREYNOLDS dissented; and Justices BENJAMIN N. CARDOZO and STANLEY F. REED did not take part.
In fact, the renowned footnote does no more than tentatively mention the possibility of active review in certain realms. The footnote...