Footnote 4

AuthorJeffrey Lehman, Shirelle Phelps

Page 444

Footnote 4 is a footnote to United States v. Carolene Products Co., 304 U.S. 144, 58 S. Ct. 778, 82L. Ed. 1234 (1938), in which the U.S. Supreme Court upheld the constitutionality of the Filled Milk Act, 42 Stat. 1486, which Congress passed in 1923 to regulate certain dairy products. Written by Justice HARLAN F. STONE, footnote 4 symbolizes the end of one era of constitutional JURISPRUDENCE and the dawning of another.

In upholding the constitutionality of the Filled Milk Act, the Supreme Court drew a distinction between legislation that regulates ordinary economic activities and legislation that curtails important personal liberties. The constitutional authority of state and federal legislatures over economic matters is plenary, the Court said, and laws passed to regulate such matters are entitled to a presumption of constitutionality when reviewed by the judicial branch of government.

Courts must pay great deference to legislation that is principally aimed at economic affairs, the Court continued, and judges should refrain from questioning the wisdom or policy judgments underlying such legislation. Although some commercial laws may seem undesirable or unnecessary to a particular judge, the Court cautioned, the judicial branch may not overturn them unless they fail to serve a rational or legitimate purpose.

This deferential posture toward the legislative branch represents the crux of judicial self-restraint, a judicial philosophy that advocates a narrow role for courts in U.S. constitutional democracy. Because state and federal legislatures are constitutionally authorized to make the law, proponents of judicial self-restraint argue, courts must limit their role to interpreting and applying the law, except in the rare instance where a piece of legislation clearly and unequivocally violates a constitutional provision, in which case they may strike it down.

In footnote 4 the Supreme Court indicated that this presumption of constitutionality might not apply to certain categories of noneconomic legislation. Legislation that restricts political processes, discriminates against minorities, or contravenes a specifically enumerated constitutional liberty, the Court said, may be subject to "more searching judicial scrutiny."

Legislation that limits the right to assemble peaceably, the freedom to associate, or the liberty to express dissenting viewpoints, the Court suggested, tends to obstruct...

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