Filled Milk Act

United States v. Carolene Products Co.
Supreme Court of the United States
Argued April 6, 1938
Decided April 25, 1938
Full case name United States v. Carolene Products Company
Citations 304 more)
58 S. Ct. 778; 82 L. Ed. 1234; 1938 U.S. LEXIS 1022
Prior history Demurrer to indictment sustained, 7 F. Supp. 500 (S.D. Ill. 1934)
The Filled Milk Act did not exceed the power of Congress to regulate interstate commerce, or violate due process under the Fifth Amendment. Southern District of Illinois District Court reversed.
Court membership
Case opinions
Majority Stone, joined by Hughes, Brandeis, Roberts, Black (except the part designated "Third")
Concurrence Butler
Dissent McReynolds
Reed, Cardozo took no part in the consideration or decision of the case.
Laws applied
§ 61-63 (1938) (Filled Milk Act § 61-63)

United States v. Carolene Products Company, 304 U.S. 144 (1938),[1] was an April 25, 1938 decision by the United States Supreme Court. The case dealt with a federal law that prohibited filled milk (skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream) from being shipped in interstate commerce. The defendant argued that the law was unconstitutional on both Commerce Clause and due process grounds.

The previous term, the Court had dramatically changed its Commerce Clause jurisprudence to enlarge substantially those activities considered to be in or to affect interstate commerce. It had also altered its settled jurisprudence in the area of substantive due process, the doctrine dealing with rights not specifically enumerated in the Constitution. These changes meant that many New Deal programs that the Court would previously have invalidated would henceforth be found constitutional.

The defendant company was charged with breaking the law described above, and at trial it had filed a motion to dismiss the charges on the grounds that the law was unconstitutional. The United States District Court for the Southern District of Illinois had granted the defendant's motion, and the Seventh Circuit Court of Appeals had affirmed the District Court's ruling.

Justice Harlan Stone, writing for the Court, found that the law, being "presumptively constitutional" was essentially a legislative judgment, and hence was not for the courts to overrule. Applying rational-basis review, the Court held that the law was supported by substantial public-health evidence, and was not arbitrary or irrational.

Footnote Four

Carolene Products is best known for "Footnote Four," considered to be "the most famous footnote in constitutional law."[2] The Court applied minimal scrutiny (rational basis review) to the economic regulation in this case, but proposed a new level of review for certain other types of cases.

Justice Stone suggested there were reasons to apply a more exacting standard of judicial review in other types of cases. Legislation aimed at discrete and insular minorities, who lack the normal protections of the political process, should be an exception to the presumption of constitutionality, and a heightened standard of judicial review should be applied. This idea has greatly influenced equal protection jurisprudence, and judicial review.

The constitutional law scholar John Hart Ely based his major work, Democracy and Distrust, on Footnote Four's second and third paragraphs, which correspond to the "Democracy" and "Distrust" of his title.

Text of Footnote Four

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 inquire 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. . . . [Italics added]

Footnote Four introduced the idea of levels of judicial scrutiny. In keeping with the New Deal Revolution, Footnote Four established the rational basis test for economic legislation, an extremely low standard of judicial review. The "rational basis test" mandates that legislation (whether enacted by Congress or state legislatures) which deals with economic regulation must be rationally related to a legitimate state interest.

Therefore, Footnote Four outlines a higher level of judicial scrutiny for legislation that met certain conditions:

  1. On its face violates a provision of the Constitution (facial challenge).
  2. Attempts to distort or rig the political process.
  3. Discriminates against minorities, particularly those who lack sufficient numbers or power to seek redress through the political process.

This higher level of scrutiny, now called "strict scrutiny", was first applied in Justice Black's opinion in Korematsu v. U.S. (1944).

Some argue that this "most famous footnote" was in fact written not by Justice Stone, but by his law clerk, Louis Lusky.[3] In fact, the cited work above (while quite useful on the origin and growth of the footnote) does not claim that the law clerk was the author, and implies the opposite through letters between the justices. In his later work, Our Nine Tribunes: The Supreme Court in Modern America, however, Lusky includes facsimiles of the original drafts of the footnote, the first of which is in his own hand. Stone edited the second, typed draft and, at the behest of the Chief Justice, added certain passages. While Justice Stone was doubtless intimately involved in the writing of the footnote, it seems clear that original authorship belongs to Lusky.

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