United States v. Carolene Products Co. was a case decided in the
United States Supreme Court in
1938. It is a well-known case in American
constitutional law thanks to one of its
footnotes, which established the basic standards of
judicial review when considering the constitutionality of legislation.
Facts of the case
Carolene Products made milk. It didn't make good milk. Rather, it made "filled milk"—skim milk mixed with coconut oil to form a product vaguely resembling condensed milk. They sold their product under the trade name "Milnut."
Not only was this kind of disgusting... it was illegal, too. Congress had passed a law in 1923 which banned the interstate shipment of filled milk. (Why only ban interstate shipment? Congress's legislative powers are limited to those set forth in Article I of the Constitution. The anti-greasy-milk law in question was passed under Congress's Commerce Clause powers as a regulation on interstate commerce.) The statute called filled milk "an adulterated article of food injurious to the public health," and stated that "its sale constitutes a fraud on the public."
How it got to the Supremes
Carolene Products was indicted in the United States District Court for the Southern District of Illinois after the feds caught them shipping filled milk from Litchfield, Illinois to Muncie, Indiana. At trial, Carolene demurred to the government's charges, arguing that the statute was a violation of several constitutional provisions:
The district court accepted part of the company's argument and dismissed the suit. "The grant of power to Congress over the subject of interstate commerce was to enable it to regulate such commerce," wrote Judge Fitzhenry, "and not to give it authority to control the states in their exercise of the police power over local trade and manufacture. The grant of authority over a purely federal matter was not intended to destroy the local power always existing and carefully reserved to the states in the Tenth Amendment to the Constitution."
The government appealed the dismissal under a provision now known as 18 U.S.C. § 3731. Although the Constitution's provision against double jeopardy precludes the government from putting a criminal defendant on trial more than once, the government is allowed to appeal some criminal matters, such as evidence disputes and (in this case) dismissals.
Usually, the appeal would go to the United States Court of Appeals for the Seventh Circuit, which hears appeals from district courts in Illinois, Wisconsin, and Indiana. However, the Seventh Circuit had already upheld the constitutionality of the Act in a separate case involving Carolene Products, so the case then went to the Supreme Court, which granted certiorari.
The Decision
Justice Harlan Stone wrote the majority opinion, which reversed the district court's decision and remanded the case for a trial.
To Carolene's arguments, Stone responded:
- The commerce clause and the Tenth Amendment did not stop the law. "Congress is free to exclude from interstate commerce articles whose use in the states for which they are destined it may reasonably conceive to be injurious to the public health, morals or welfare, or which contravene the policy of the state of their destination. Such regulation is not a forbidden invasion of state power either because its motive or its consequence is to restrict the use of articles of commerce within the states of destination, and is not prohibited unless by the due process clause of the Fifth Amendment."
- The Fifth Amendment did not stop the law. The Supreme Court had previously held that state government regulations of food products were not deprivations of property without due process, and it was a simple logical jump to assume that the same rule should apply to the federal government. Stone also cited evidence of the unhealthiness of filled milk, and stated that given the complexity of the issue, it was "a matter for the legislative judgment and not that of courts."
- To the equal protection claim, Stone noted that "the Fifth Amendment has no equal protection clause, and even that of the Fourteenth, applicable only to the states, does not compel their legislatures to prohibit all like evils, or none. A legislature may hit at an abuse which it has found, even though it has failed to strike at another."
The "Carolene Products Doctrine"
After knocking out Carolene's arguments, Stone continued: "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."
This was followed by a small superscript 4, which pointed to one of the most famous footnotes in American legal history:
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 Fourteenth.
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. ...
Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious or national or racial minorities: 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.
Stone thus set up a framework for determining how the Supreme Court would address statutes dealing with commerce. In most cases, the Court would presume a law to be constitutional unless it obviously violated a constitutional provision. However, there were three exceptions to this broad rule: statutes interfering with individual rights, statutes interfering with the political process, and statutes interfering with "discrete and insular minorities."
This framework was later developed into three basic levels of judicial scrutiny: the rational basis test for most laws; intermediate scrutiny for gender discrimination, regulation of public and commercial speech, and other potentially problematic areas; and strict scrutiny for racial discrimination and direct attacks on fundamental rights (e.g. the rights to vote, travel, speak in private, and maintain one's privacy).
This represented a major shift from the Court's previous policy, established by the case of Lochner v. New York. Lochner had established that the courts would defend business interests against any encroachment by federal government. It was a case that came from a laissez faire era, and it was hardly surprising that a court under the influence of the New Deal would find occasion to reverse the old policy of leaving businesses to themselves.
However, this section of the opinion did not lead to major legal changes overnight. Although some legal scholars took interest in the different levels of judicial review implied by the footnote and its container paragraph, the national security issues posed by World War II forced the Carolene Products Doctrine to take a back seat to more pressing concerns, such as the fact that the cute broad sitting next to you is probably A SPY! As a result, the footnote's impact remained relatively minor until the 1960's, when courts began using the standards implied by the footnote in dealing with issues of civil rights.
Sources
- U.S. v. Carolene Products Co., 304 U.S. 144 (1938)
- U.S. v. Carolene Products Co., 7 F. Supp. 500 (S.D. Ill. 1934)
- Chemerinsky, Constitutional Law: Principles and Policies (2d ed., Aspen 2002)
- Lusky, Footnote Redux: A Carolene Products Reminiscence, 82 Colum. L. Rev. 1093 (1982)