The Footnote– Part I

The Footnote– Part I

Copyright 1998 Jack M. Balkin. All rights reserved.

The Footnote

J. M. Balkin

He raises the poor from the dust,

and lifts the needy from the ash heap,

To seat them with princes,

the princes of his people.

– Psalms 113:7-8

I. The Problem of the Footnote

4I would have liked to have written an essay about the relationship of law to literature – to deconstruct the opposition between them and, in the process, to say a few words about deconstructive techniques in general. I would have explained that legal writing and literary writing share a common textuality, a semiotic similarity that one could exploit in legal as well as literary contexts. I would have pointed out that the seemingly meaningless and accidental features of a text possess an economy or logic that both troubles and elucidates other features of the text. I would have shown how the processes of signification that we call the “surface features” of the text and those processes of signification that we call the “meaning” or “argument” or “point” of the text are not separable in the way we ordinarily imagine them to be, but that they feed upon and nourish each other in a most uncanny way. In particular, I would have argued that legal writings’ reliance on figural language – metaphor, metonymy, and so on – was not adventitious or accidental, something that one could do without. I would have contended that this reliance was as essential to legal as to literary expression, and that it could be exploited by the legal critic – exploited in a way that would show the contingency and limitations of our ways of thinking about legal issues. I had planned to write about all these things, and many more, but as I began to write, I was irresistibly drawn to another problem – different and yet not so different: the problem of the footnote.

Perhaps this article should be considered as a footnote to a sentence I have not yet written. Should this make what I have to say less significant? The manner in which this question forced itself upon my attention was almost embarrassing, because the issue was so trivial, so undeserving of serious consideration. It is no doubt true that among some law students, lawyers, and legal academics, “footnotes are the real measure of worth in legal writing.” (1) Yet although we use footnotes to impress each other with our erudition, I strongly suspect that most legal scholars really do not think much of footnotes. They are a necessary evil, and perhaps not even a necessary one. Nowadays, we see increasing calls for essays with a minimum of footnotes, and a law review article too heavily footnoted may be dismissed as “overwritten” merely to cater to the requirements of a student edited journal.

Symbolically, of course, the footnote is of minor importance. It is relegated to the bottom of the page (or, in the case of endnotes, to the back of the volume). It is excluded from the main body of the text, either because it disturbs the flow of the text, because it is unessential to the argument, or because it is a digression or afterthought. The footnote lives a life of exclusion and marginalization. It is named after the foot, that lowly organ which spends its life near the ground, in the dirt. We remark upon the triviality of the footnote in the very metaphors we use to describe the act of footnoting: one “drops” a footnote, as one might drop a piece of garbage, or anything unpleasant or of little value.

Consider how we treat footnotes when we read a piece of legal writing. We skim over them, or even disregard them, on the assumption that the “essence” of the article is contained in the body of the text. For that reason, when an author prepares an article for publication, it is usually good practice to avoid placing too much in the footnotes. Reading footnotes distracts the eye, which must move up and down from the top of the page to the bottom. There is nothing more tedious than bobbing one’s head like a pogo stick only to discover that the footnote contains nothing of substantive worth, except perhaps for a citation, an irrelevant bibliographic excursion, or the ubiquitous “Id.” Moreover, when there is something substantive in the footnote, it is more often than not a digression from the argument of the text, and tends to break the train of thought of the reader. If the footnotes are endnotes, the problem is even worse, for no one has the patience to flip back and forth constantly between the place one is reading and the end of the book. As a result, footnotes placed at the end of a volume (or even at the end of a chapter) rarely get read.

Of course, one can deal with this problem by placing the substantive footnotes at the bottom of the page and the bibliographic footnotes at the end of the book. But one still has to bob and weave to read the substantive footnotes, and this is quite disconcerting. Indeed, one suspects that an article that places too much of its substantive argument in the footnotes was probably not well organized or well written in the first place. The author has not been careful enough to place her thoughts in a logical order and avoid digressions. Similarly, an abundance of substantive footnotes may indicate the work of colleagues or law review editors who have made the author modify or refine her statements. Such footnotes are a sign of incompletely justified arguments, or an insufficiently integrated text. On the other hand, footnotes sometimes appear because an editor attempted to excise extraneous material, and the author’s recalcitrance resulted in a compromise in which the surplus verbiage has been relegated to a footnote. Such footnotes are the flotsam and jetsam of half-baked ideas and misplaced authorial pride. In any case, whatever the reasons for the presence of footnotes, one always suspects that a law review article whose footnotes continually creep up over half of the page has been poorly written – it could have been rewritten to get rid of at least some of those footnotes if the author cared enough or had enough time.

The footnote is inconsequential, inessential, an intellectual bauble that one could, in theory, do without. That is why it is excluded, marginalized,banished to the bottom of the page or the end of the book. Moreover, it is a dangerous inconsequentiality, infecting the purity and coherence of legal argument. One legal scholar, Judge Abner Mikva, has gone so far as to declare war on footnotes in legal writing. Following in the footsteps of Professor Rodell, who gained fame for decrying the declining state of all legal writing, (2) Mikva focuses on the footnote as symptomatic of the problems of legal writing in general. (3) For Mikva, footnotes are a “fungus” that has increasingly infected legal writing. (4) Like a biologist depicting the invasion of a parasite into its hapless host, he glumly reconstructs the inexorable introduction of this monstrosity into the body of legal writing:

How did footnotes come about? The most likely first use was as a citation to authority… . Unfortunately, it was all too easy to move from the pure citation to a description of what the cited authority was about. From there it was only a small step to explaining how the cited authority was distinguishable from the case under consideration, or describing what some other authority had to say about the cited authority, which is distinguishable from what some other authority had said about the cited authority, which is … ad very nauseam. This evolutionary process of footnoting did more than add to the length and complexity of footnotes; it led to footnotes becoming substantive.Distinguishing a case can be a subtle way of undercutting it or overruling it. The footnote thus acquired its full capacity for mischief. Meat began to fall from the text and into the footnotes.(5)

A logic of exclusion is at work in this fanciful explanation, a logic more important than the creation myth that Mikva offers us. The footnote, itself marginalized and excluded, is at first used to avoid (defer, put off, exclude) dispute by appeal to authority. Later, it is used to distinguish (defer, put off, avoid) the force of other cases. Yet the very process of exclusion is a process of inclusion – a marshalling of substantive reasons justifying the avoidance, deferral, and distinction. The footnote, once excluded from the opinion itself, is now the means for excluding other opinions. It is a nasty turn of affairs, indeed.

Another recurrent image is at work here as well. When Mikva discusses footnotes, he speaks not only of inclusion and exclusion but of purity and impurity: not only does he repeat Rodell’s accusation that footnotes are merely “phony excrescences,” (6) but he labels the footnote “an abomination” (7) that often “perverts judicial opinions.” (8) The footnote, which is parasitic on the text, is an impurity that must be eliminated (excluded) from the body as much as possible. Mikva announces his decision to purify his legal discourse: “I quit using footnotes in my opinions several years ago. I quit cold-turkey and it was – and sometimes still is – very painful.” (9)

Ridding one’s self of impurity brings on a shock like being thrown into cold water – it is an immersion in a ritual bath of purification (which Jews call a mikva). But can we cleanse ourselves of this impurity in the same way that a convert to Judaism might wash away her uncleanliness by going to the mikva? Can we go “the way of Mikva” and purify ourselves of our need for footnotes? Could we avoid the vices of legal writing by ridding ourselves of what Mikva sees as their primary symptom – this “phony excrescence?” Or is our sin original, our fall from grace elemental, our impurity already present in and inextricably bound up with the nature of legal writing itself?

Note that Mikva, who follows in the footsteps of Rodell, might be considered as having produced only a footnote to Rodell’s attack on legal writing in general: Mikva himself notes that his “aim is much lower and narrower” than Rodell’s. (10) Nor was Rodell content to eschew annotation. His afterthoughts were collected into a new article that might serve as a footnote to the first. Should we simply be amused at this exercise in unwitting self-reference, and make some witty remark, such as “purifier, purify thyself?” Or should we remark upon the inevitability of footnoting, and wonder if this phony excrescence, this parasite, is more than it appears to be? Is this coincidence, mere wordplay, or is there a greater logic at work here? Is the problem of the footnote a problem of writing in general, and of legal writing in particular?

We must defer these questions, and consider once again the question of the footnote: If this article is only a footnote to a sentence I have not yet written, what is the ground of its existence? Could it (the foot-note) stand by itself? If the footnote were something marginal,unessential, this would be impossible. Indeed, as a mere supplement to the text, the footnote could be dispensed with altogether. But suppose the footnote turned out to be essential in some way to the text that it stands beneath? What if its position in the text were taken as symbolic of its role as a foundation of the text – as a source of support without which the text would lose its power in the community of readers? In such a case the footnote might be necessary to supplement the text, given the conventions of legal scholarship. It would now be the text that could not stand by itself, for without footnotes its author might be accused of plagiarism or unjustified assertion.

Here I must make a personal confession. I bet a colleague that I could write this article without footnotes. Then I came to my discussion of Mikva’s article, and I felt compelled not only by convention, but by a sense of academic honesty, to cite his previous thoughts on the problem of the footnote, even as he felt compelled to cite Rodell. The footnote is not something that either I, or Mikva, or Rodell, could do without. Mikva, recognizing this, attempted to solve the problem by placing his citations in the body of the text.

See, e.g., Mikva, supra note 1, at 647, 649, 653. [Note to the editors of the Law Review: Please retain this citation in the bluebook form appropriate to footnotes in the body of the text, as well as this material in brackets. It will serve to signify my intervention in the field of legal convention – my insertion of the excluded into the body of the included – my struggle against marginalization, my fight against a convention that I bow to even as I reject it momentarily. Note that I cannot abandon this convention indefinitely. If I do, I will simply replace it with another one.]

Mikva struggles artfully to eliminate the need for footnotes, yet even he cannot do without them: “because I am still full of footnote toxin, I put my authority citations right in the text. The result is hardly conducive to a flowing style of writing.” (11) In later articles, he succumbs to the practice of placing citations on the margin of the page. (12) He makes a bow to the practice of exclusion even as he excludes exclusion itself. (Note the delicious irony of an attempt to marginalize, as much as possible, the process of marginalization itself). Yet his purification has a cost. Mikva eliminates the lack of clarity created by an abundance of footnotes only at the risk of muddying up his text.

Here we must pause and wonder. Is the footnote really so marginal, so unessential as we thought? If Mikva cannot purify his own texts completely, if the spectre of the footnote keeps reasserting itself in every text he writes, are we justified in dismissing the problem of the footnote as a trivial and superficial feature of language? Or does it represent a more powerful feature of writing at work here, disguised in a trivial example?

We cannot answer these questions as yet. Instead, we must return to our original inquiry. If the footnote might be a necessary supplement to the text, could it even be more important than the text that it stands beneath? Could it not state an essential point that the text forgot to mention, but which, the author having thought about it, realized that she needed to say in order to make sense of the text, or in order to meet some trenchant criticism or pungent objection? In such a case, not only might the footnote be more important than the text, but the text could even not stand by itself – its author might be accused of not having thought the matter through without the footnote.

Perhaps the footnote might state the real point of the argument in a highly economical way. It is as if one engaged in a debate with a friend, and as one debated, adding qualifications and clarifications to the position one originally started with, one finally saw the real point one was arguing for all along. Is this at all remarkable? Isn’t it one of the purposes of Socratic dialogue? Perhaps, then, the footnote is an afterthought, but the thoughts that come after the first might be more important, more clear, more to the point. Here as well the footnote has become more important than the text.

Perhaps the qualifications and the asides made in the footnote might be more important to future readers, who want to understand the import of the text. The text states the argument in a general way, sufficient for the case at hand, but the footnote touches upon the problems of the all important next case. There is a particular issue that we have in mind – a particular application or exception to the general rule that is unclear from the text and that the footnote clarifies. Is it any wonder then, that the most eagerly studied parts of Supreme Court opinions are the footnotes?

Perhaps the footnote does not solve a difficulty, but merely avoids it, defers it to another day. In Bowers v. Hardwick, (13) Justice White casually dropped such a footnote. This is not a case, he said, involving the constitutionality of sodomy laws involving heterosexual couples. (14) Yet the challenged Georgia statute made no distinction between homosexual and heterosexual sodomy. What was the point of this footnote? Could the majority have done without it? Or would the question of differential treatment of heterosexual and homosexual couples have reappeared insistently? Does the footnote defer, or prefigure, the real Hobson’s choice (or Hardwick’s choice) that the Court would rather not have addressed? Perhaps the Court did not want to admit that heterosexual sodomy was protected because it could not then justify the exclusion of homosexual sodomy on principled grounds; yet the Court did not want to hold that heterosexual sodomy was not protected because that would have subjected it to a flood of criticism from heterosexuals.

Here the footnote performs the crucial task of holding the logic of the opinion together, by putting off the evil day when these questions will have to be answered. The footnote is the red cape dangled in front of the charging bull, and then removed at the last second, preserving the life of the matador. Does it surprise us that this deferral, this avoidance, is the crucial move in the opinion (like the movement of the cape at the last split second)? Does it surprise us that it is this very movement that holds the opinion together (in the same way that the movement of the cape prevents the matador’s intestines from spilling out into the sand)? Does it surprise us, then, that this footnote may be as important as anything else that Justice White said in his opinion?

One could not think of a less important, less essential thing to write about than the placement of footnotes in legal texts. But if the problem of the footnote is like a boomerang, like the bad penny that keeps turning up, perhaps it is not so odd for us to ask if it is not symptomatic or symbolic of some other feature, of writing in general. And if this feature, this problem, is symptomatic of writing in general, might we not be entitled to ask if it is also symptomatic of legal writing? And thus emboldened, might we not ask a still more “serious” question – whether this mysterious feature, this disease, this flaw, this problem, is not also symptomatic of a system of law that is and can only be expressed in legal writing? Dare we hope that from such trivial

beginnings an issue of momentous importance might emerge? Could we not think that our dismissal of those beginnings would itself be a marginalization worth studying for its own sake?

Yet we must put these speculations aside. It is time to move from the subject of this article – the footnote – to the subject of this article – the Footnote. When constitutional scholars talk about the “problem of the footnote,” they are referring to a specific footnote, the Footnote, footnote four of United States v. Carolene Products, an opinion written by Justice Harlan Fiske Stone. (15) Here indeed is a footnote that has become more important than the text; that is often read separated from its text; that can stand alone. Nor is this footnote a trifle, or an insignificant bauble. It has inspired countless books and law review articles. (16) The fourth footnote of Carolene Products has not, like its siblings, lived a life of exclusion and marginalization. It has enjoyed fame and fortune. Indeed, the footnote has for so long escaped marginalization that the opposite has tended to happen – the footnote has become much more important than the body of the opinion it appears in, an opinion whose actual holding is often forgotten. This is clear in recent commentaries. Professor Ackerman states casually that footnote four appeared in an “otherwise unimportant” case. (17) Justice Powell notes that “Carolene Products was an otherwise unremarkable decision in the same line [as West Coast Hotel v. Parrish].” (18) Stone’s former clerk, Professor Louis Lusky, remarks that “the opinion occasioned [Justice Stone] no difficulty as far as the validity of the statute – the only issue on the merits – was concerned.” (19) Professor Brilmayer finds the footnote dropped in an “otherwise unremarkable discourse on the beauties of deference to legislative choice.” (20)

Is this a happy ending? Is the victory of the footnote over the text an unproblematic reassertion of equality, or does it betray its own logic of marginalization, its own deliberate disregard? If the marginalization of a footnote is always incomplete, if the problem of the footnote constantly

reemerges, try as we might to banish it, will the marginalization of the body of the opinion be any more successful? Will not the “insignificant” and “unremarkable” opinion in Carolene Products (now relegated by history to the status of a footnote) haunt our discussions of the footnote (now understood as the real “holding” of the case)?


Carolene Products concerned the constitutionality of the Filled Milk Act of 1923, “which prohibit[ed] the shipment in interstate commerce of skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream.” (21) Section 62 of the Act declared that “filled milk … is an

adulterated article of food, injurious to the public health, and its sale constitutes a fraud upon the public.” (22) The appellee, Carolene Products Co., was indicted for shipping in interstate commerce packages of “Milnut,” a product which combined skim milk with coconut oil to produce a substance resembling whole milk or cream. Such artificial substitutes were also marketed under the trade name “Carolene,” from which the company derived its name. (23) Carolene Products Co. argued that the statute was beyond the power of the federal government both under the commerce clause and the due process clause of the fifth amendment. (24) (It is often forgotten that Carolene Products is not only a due process case but also a commerce clause case, a fact which is usually excluded from edited versions appearing in contemporary Constitutional Law casebooks).

The themes that we found pervasive in our discussion of “the problem of the footnote” – inclusion and exclusion, marginalization and emphasis, purity and impurity – are here in force in this opinion. The federal government has acted to prevent Milnut from crossing state lines into various states. Milnut, an impure, adulterated substance which substitutes a false ingredient to create the illusion of pure, whole milk, must be excluded from state borders because of the danger to the public health.

These “surface features” of the text, these contingent facts about the opinion (contingent because Stone could have chosen any opinion in which to introduce his ideas) replicate the reasoning and the logic of the opinion itself. Carolene Products is also about another type of purity and impurity, another type of inclusion and exclusion – that which affects the democratic process. Carolene Products, especially in its famous footnote, is concerned with impurities in the democratic process caused by adulteration of the means of political deliberation (the subject of the footnote’s second paragraph) or by the exclusion of discrete and insular minorities from full political participation (the footnote’s third paragraph). According to the logic of the footnote, certain groups are shut out of the democratic process, relegated to the periphery. They are, to use Professor Brilmayer’s expression, “insider-outsiders” – persons subject to the power of the political community yet excluded from participation within it. (25) The goal of Carolene Products is to restore them to their rightful place within the polity through judicial supervision of the results of the democratic process. The role of the judiciary is to exclude legislation which is the result of impurities in the process, and by this exclusion, include those persons previously excluded, or prevent their future exclusion.

Stone’s very choice of words in the third paragraph – “discreteness and insularity” (26) – connote the sense of being closed off from the political process, and (from a less sympathetic standpoint) excluded as impurities that are falsely believed to threaten a homogeneous body politic. Because the majority seeks to keep itself pure, it excludes the pariah from the political bargaining table, banishes the scapegoat to the periphery. This vision of politics presented itself with particular urgency in 1938, on the eve of a World War fought against a regime that considered racial purity an article of faith. (27) Thus, the language of Carolene Products is crafted to break open the hermetic seal and allow the minority to spread into the inside, to make the outsider an insider, to put the excluded group in the place it would have enjoyed had it been counted an insider all along. In so doing, Carolene Products contests the claim that the minority group is impure. It labels the purity of the majority a false purity, adulterated in its own, more insidious way by unreasoning prejudice. Carolene Products holds that true purity can be achieved only through participation, only by ridding ourselves of the dangerous impurity of thought whose ugliest manifestation is racial and religious discrimination.

Yet there is irony in the capacity of this text to refer to itself. The famous assertions of Carolene Products, made on behalf of the outsiders, the excluded, are themselves made in the course of an opinion extolling the rule of the majority. They are made through the use of a literary device – the footnote – which, as we have already seen, lives a life of marginalization and exclusion, which itself is considered an impurity and a hindrance. Indeed, not only do the most famous claims of Carolene Products appear in a lowly footnote, but the footnote does not even assert them directly. It merely raises them tentatively, deferentially (in the manner that the body of the opinion tells us the judiciary ought to behave). This diffidence marks all three paragraphs of the footnote:

There may be narrower scope for the operation of the presumption of constitutionality… . [paragraph one]

It is unnecessary to consider now whether legislation which restricts those political processes … is to be subjected to more exacting judicial scrutiny… . [paragraph two]

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious … or national … or racial minorities. [paragraph three] (28)

Here the opinion mocks itself, reserving the discussion of the marginal to the margin, and the impurities of the democratic process to the impure (footnote). The footnote exhibits what it denies, for it is on the outside looking in. The self-reference continues as the question of judicial deference is itself deferred to another day. Yet if the opinion mocks itself, history mocks the opinion by reversing its prioritization, for succeeding events would soon make the footnote more important than the body of the opinion.

In tracing the metaphors of purity and impurity, exclusion and inclusion, we have noted an uncanny self-reference between what Carolene Products is about (introduction of adulterated milk into state borders) and what Carolene Products is about (judicial perfection of the democratic process through the protection of minority rights). In different senses, these are both the “subjects” of the opinion. They simply represent different aspects of its processes of signification, to which we might also add a third – the opinion’s choice of words, its placement of a particular discussion in the (impure, excluded) footnote, its sentence length and structure, and so forth. These syntactical features have also joined into the conversation, obliquely commenting on and contradicting other aspects of the text. Thus, when I say that Carolene Products is about the process of marginalization and the reversal of marginalization, about insideness and outsideness, about purity and impurity, I am speaking of more than the reasoning of the opinion, more than the facts of the opinion, and more than the metaphors and syntactic structures used in the opinion. I am speaking about all of these at once, just as all of these speak about each other.

This uncanny conversation of the text with itself is not something that we shall shy away from in this Article, although as good lawyers we are taught to disregard such coincidences, leaving them to the students of poetry and literary texts. Instead, we shall luxuriate in the self-reference and internal disputation of the text of Carolene Products, riding the play of signifiers as far as it will take us. For our goal is to understand Carolene Products not as a legal text, not as a literary text, but as a text, neither pure nor simple. Only in so doing will we reverse the marginalization of the “irrelevant” features of Carolene Products, which mark the boundary of exclusion that separates law from literature.

Let us look more closely at this easiest of easy cases, this unremarkable holding of constitutionality that is Carolene Products. How does Justice Stone go about his exercise in constitutional redundancy, his beating of a doctrinal dead horse? In the section of the opinion marked “First,” he begins by dismissing the claim that the Filled Milk Act is beyond the Congress’ powers under the commerce clause:

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. (29)

Here Stone nonchalantly intimates that the federal government has the power to safeguard the traditional objects (health, morals, and welfare) of the police power of the states. This would no doubt have come as a shock to the old (Lochner era) Court, for as Justice Sutherland had stated proudly only two years previously, “the … notion that Congress, entirely apart from those powers delegated by the Constitution, may enact laws to promote the general welfare, ha[s] never been accepted but always definitely rejected by this court.” (30) This is not to say that the old Court might not have upheld the statute under another line of reasoning, for the Court had permitted Congress to banish from interstate commerce products (like liquor, lottery tickets, and prostitution) that were harmful in and of themselves. (31) Indeed, the old Court had

specifically upheld the Pure Food and Drug Act which prohibited the introduction of adulterated foods into interstate commerce. (32) Stone might have relied on these decisions without arguing for a general right of the federal government to promote the health, morals, and welfare of the public through the regulation of interstate commerce. Yet he is not content to rest on so narrow a ground:

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. And it is no objection to the exertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attend the exercise of the police power of the states. (33)

It is important here to note Stone’s agnosticism on the issue of legislative purpose, an agnosticism that will become even more important only a few pages later in the opinion. Even if Congress’ goal was to usurp for itself the police power of the states through the regulation of interstate commerce, Stone will not look for an unconstitutional motivation or investigate the possibility of pretext. (34)

Stone concludes, then, that “[t]he prohibition of the shipment of filled milk in interstate commerce is a permissible regulation of commerce, subject only to the restrictions of the Fifth Amendment.” (35) This brings us to the portion of the opinion marked “Second.” Having obliterated the distinction between federal and state regulation in this area, Stone notes that, even during the infamous Lochner era, the evil heyday of substantive due process, the Court had upheld similar state statutes:

Twenty years ago this Court, in Hebe Co. v. Shaw, 248 U.S. 297, held that a state law which forbids the manufacture and sale of a product assumed to be wholesome and nutritive, made of condensed skim milk, compounded with coconut oil, is not forbidden by the Fourteenth Amendment. The power of the legislature to secure a minimum of particular nutritive elements in a widely used article of food and to protect the public from fraudulent substitutions, was not doubted; and the Court thought that there was ample scope for the legislative judgment that prohibition of the offending article was an appropriate means of preventing injury to the public. (36)

The Lochner era Court would have viewed this law (assuming it were passed by a state legislature) as an attempt to preserve the health, safety, and welfare of the citizenry, akin to the eradication of a public nuisance – it would have seen this law as advancing the public interest in unadulterated foodstuffs. Given its common-law-inspired understandings of the police power, the Court would easily have upheld the statute as a reasonable and nonarbitrary exercise of legislative judgment, in accordance with the rule of Hebe Co. v. Shaw. (37)

Yet Stone finds no satisfaction in upholding this act on the limited basis acknowledged by the old Court. He must devise a new methodology of judicial scrutiny. “[W]e might rest decision wholly on the presumption of constitutionality,” says Stone, “[b]ut affirmative evidence also sustains the statute.” (38) He tells us that Congress held detailed hearings on the subject of filled milk, gathering evidence from twenty years of scientific inquiry, and compiling them in reports of the House and Senate Committees on Agriculture. (39) These committees concluded that the use of filled milk as a substitute for pure milk was injurious to health and constituted a fraud on the public; retail merchants often represented filled milk to uneducated consumers as equally good or better than pure condensed milk sold at a higher price. (40) Stone summarizes Congress’ findings in footnote two, a footnote whose comparative significance to footnote four has been considerably less than their numerical ratio. Referring to the evidence contained in this second footnote, he states “[t]here is nothing in the Constitution which compels a legislature, either national or state [note again the casual equation], to ignore such evidence, nor need it disregard … other evidence which amply supports the conclusions of the Congressional committees.” (41) Here Stone artfully constructs and then demolishes a straw man – as if someone had actually argued to the Court that legislatures must legislate without reference to facts. He wraps around himself the mantle of social science, praising the careful considerations of a majoritarian body, and impliedly criticizing the majority of the old Court who thought they knew better than legislatures how to run the nation’s economy. Here, for a brief moment (a second perhaps), it appears as if Stone has provided us with a new approach to judicial scrutiny, of which footnote two is the centerpiece. Here, in “Second,” he suggests that the test of legislative reasonableness is whether Congress has held hearings, gathered evidence, made detailed findings of fact – in short, whether there are indicia of a sound and considered judgment by the elected representatives of the people based upon reliable scientific information. If the Congress has made an effort to learn the facts, if it has sought dispassionately and conscientiously to ascertain the public interest through a process of deliberation and self-education, it is not for the courts to second-guess its judgment. The theory of “Second,” had it been allowed to flourish, might have developed into something reminiscent of what later writers would call “Due Process of Lawmaking” – a concern for the procedural purity of the process by which Congress makes decisions in the public interest, posed as an alternative to the Lochnerian concern with the end results of the political process. (42) Or, the theory of “Second” might have developed into a republican conception of politics, with a judicial role that sought to promote sincere deliberation over cynical logrolling, and public interest over private advantage. (43)

Yet as soon as these alternatives are suggested, they are hurriedly whisked off the stage, and another, superficially similar, line of reasoning takes their place. This seemingly harmless and uninteresting rationale appears in the section labelled “Third,” which at first glance appears to be no more than the warm up act for the real celebrity, its neighbor, the famous footnote four. Yet before we accept this conventional wisdom, let us look at both of them more carefully. Let us lay out the body of the text and the footnote side by side, moving our eyes from one to the other, and listening to the conversation between them:

4There 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. 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 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. 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, 713-14, 718-20, 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. 484, or racial minorities, Nixon v. Herndon, 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 ordinairily 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.

Third. We may assume for present purposes that no pronouncement of a legislature can forestall attack upon the constitutionality of the prohibition which it enacts by applying opprobrious epithets to the prohibited act, and that a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show that a statute depriving the suitor of life, liberty or property had a rational basis.

But such we think is not the purpose or construction of the statutory characterization of filled milk as injurious to health and as a fraud on the public. There is no need to consider it here as more than a declaration of the legislative findings deemed to support and justify the action taken as a constitutional exertion of the legislative power, aiding informed judicial review, as do the reports of legislative committees, by revealing the rationale of the legislation. 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<4>. See Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 584 and cases cited. The present statutory findings affect appellee no more than the reports of the Congressional Committees; and since in the absence of the statutory findings they would be presumed, their incorporation in the statute is no more prejudicial than surplusage.

As we read these words, laid side by side, we suddenly realize that we are confronted not with a text and a footnote, not with a major thesis and a throwaway remark, but with an organic theory of democratic life, a comprehensive conception of politics. These words separate the world into two parts; and in each part, a different judicial role, a different judicial rule applies. Yet as we read each column, we experience the troubling feeling that the real issues implicated within it are always outside of it, lurking in the other column we have momentarily disregarded, and yet escaping us the moment that we shift our attention. We sense that the vision of politics, the image of life, created by the footnote and the text, which boast of their comprehensiveness, is already incomplete, partial, abstracted, and impure. We sense that in the neat division of the world into text and footnote cases, another conception of politics has been excluded, marginalized, silently avoided. Let us focus then, on what everyone believes to be the most uninteresting portion of this duet, the body of the opinion, the portion marked “Third,” and consider the importance of its unimportance.

In “Third,” as in “Second,” Stone preaches deference to legislative judgments of ends and means. In both of these sections Stone assumes that legislatures are better able than courts to serve the public interest. Yet in “Third” Stone now makes it clear that even if the Congress had held no hearings, had called no witnesses, had engaged in no factfinding or deliberations whatsoever, the constitutionality of the statute would remain unaffected. The Court will simply make up facts and reasons to justify the distinctions made by the legislation it is presented with, and it will not strike down the legislation unless the Court cannot invent a scenario in which a rational legislature might have produced the bill before it.

Here we are brought to the difficulty and the interest in this easy and uninteresting case. Stone reveals himself supremely unconcerned with the actual method by which Congress reached its conclusion, or with the actual purpose that motivated the legislators in banning filled milk. Indeed, in his fidelity to judicial deference, Stone commits the Court to an enterprise of disguise and misrepresentation. The goal of a Court faced with a due process or equal protection challenge henceforth is to paint the rosiest possible picture of the process of deliberation and of the legislature’s purpose. We now see why the results of the Congressional hearings were relegated to footnote two – they were mere window dressing, a surplusage ultimately unnecessary to the decision of the case. Indeed, the whole section of the opinion marked “Second” has itself been a sham, a diversionary tactic.

Only in this light do we understand the full import of other remarks made almost casually, statements that now take on a more sinister aspect. For instance, in “Second,” Stone argues that

[T]he prohibition of the statute is inoperative unless the product is “in imitation or semblance of milk, cream, or skimmed milk, whether or not condensed.” Whether in such circumstances the public would be adequately protected by the prohibition of false labels and false branding imposed by the Pure Food and Drugs Act, or whether it was necessary to go farther and prohibit a substitute food product thought to be injurious to health if used as a substitute when the two are not distinguishable, was a matter for the legislative judgment and not that of the courts… . Appellee raises no valid objection to the present statute by arguing that its prohibition has not been extended to oleomargarine or other butter substitutes in which vegetable fats or oils are substituted for butter fat. 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. (44)

And again, in “Third,” he notes:

[T]he constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the Court that those facts have ceased to exist… . [And] a statute, valid on its face, may be assailed by proof of facts tending to show that the statute as applied to a particular article is without support in reason because the article, although within the prohibited class, is so different from others of the class as to be without the reason for the prohibition… . But by their very nature such inquiries, where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts either known or which could reasonably be assumed affords support for it. (45)

By refusing to inquire into less restrictive alternatives, and by rejecting attacks based upon over and underinclusiveness, Stone wholeheartedly embraces agnosticism as to purpose. The rationale of every governmental action almost always has a nice version and a naughty version; inquiry using such proxies as means-ends fit is important, for the real legislative purpose is not always easily determined otherwise. A poor fitting of means to ends is the surest sign that the legislature’s stated goals are not its real goals, and that the bill disguises some unseemly machination or invidious prejudice.

The “nice” version of the Filled Milk Act, for example, is that the bill was designed as a paternalistic measure to prevent uneducated and even illiterate consumers from purchasing a less expensive but less nutritious substitute for milk and cream. The legislature was concerned that consumers would purchase Milnut under the influence of unscrupulous merchants motivated more by private profit than by public concern. Conceivably, lack of consumer education might have undermined the efficacy of labelling Milnut as a milk substitute as required by the Food and Drug Act.

On the other hand, the rationale of the Filled Milk Act also has a naughty version, as Professor Komesar tells us:

It does not take much scrutiny to see the dairy lobby at work behind the passage and enforcement of the “filled milk” act. Indeed, the dairy industry’s efforts to employ legislation to keep “adulterated” products from grocery shelves and vending booths have a long history, extending from before Lochner v. New York to the present. It is not too uncharitable, perhaps, to suggest that concern for the dairies’ pocketbooks rather than for the consumer’s health best explains the dairy lobby’s efforts. In fact, though the filled milk legislation seemed to be aimed at helping consumers, it may have harmed them. They were “saved” from “adulterated” products, but only at the cost of higher prices, while the dairy industry benefited from reduced competition. (46)

Komesar’s explanation leaves us wondering who was really sacrificing public interest for personal profit. And the doctrine of “Third” gives us only this reply: Who Cares? This is a very uninteresting opinion, indeed. But, the deficiency of interest is not ours, but the opinion’s, in its lack of concern with the integrity of the legislative process.

Moreover, if we dig deeper, forgetting for the moment that we are lawyers attempting to divine the legal meaning of this text – a text which, as we have just seen, suffers from an acute case of ennui – we will again witness how the opinion comments upon and even mocks itself. The portion we have nicknamed “Third” is a remarkable exercise in judicial deference to the legislature.

Yet this judicial deference is a deferral both to and of the legislature. By fabricating a rational basis for this legislation, the Court not only marginalizes its own role (scrutiny of legislative action), but, ironically, also defers and puts off the legislature itself. The rational basis test requires the Court to disregard the actual legislative process, and substitute in place of the real legislature (with its adulterated motivations and flaws of reasoning) an ideal legislature, armed with precisely those facts and considerations that would make a statute reasonable and thus worthy of judicial deference. The Court adopts the stance of the infatuated lover in the first stages of a crush, who substitutes an ideal picture of the beloved for a less flattering reality.

This legislative deference is legislative deferral, substitution – a substitution uncannily mocked by the subject of the opinion. Even as the Court recites Congress’ concerns about adulterated products that substitute nondairy fat for milk fat, it engages in its own substitution. It delivers its own adulterated product (a theory of judicial scrutiny) by substituting the constitutional theory of “Third” for that of “Second” – a bait and switch game whose contours have already been noted. The Court replaces one conception of the judicial role – the inquiry into the actual deliberative process in democratic institutions – with another: the creation of excuses for pluralist hardball. In like fashion, the cream of actual legislative deliberation is skimmed away, and replaced with the artificial substitute of an imagined and ideal purpose. The Court then passes off its product to the ultimate consumer, claiming that this new judicial role is better (and less costly to society) than a more active judicial role (read here substantive due process). Finally, not only is the Court’s new product adulterated, but it is even mislabeled as judicial scrutiny.

Here too, the issue of purity reappears in a highly problematical fashion. It is hard to know what is pure and what is impure in the portions of the opinion marked “Second” and “Third.” Consider: the Court, suspecting that the legislative motivation behind the Filled Milk Act is not pure – that the Act is rather an attempt by the dairy lobby to subdue its economic competitors – hides this impurity by constructing a “purer” purpose for public consumption. Yet the purity of this purpose is artificial (and hence also impure). Consider: usurpation of the legislature’s role introduces an impurity into our democratic system; requiring actual purity of motive on the legislature would encroach upon the purity of democracy. Yet abdication of the judicial role leaves no protection of the process from self-adulteration; it may reduce the courts to apologists for a process that is really impure.

The issues of substitution, purity, and deferral do not escape us. They return with each investigation into this seemingly unremarkable opinion. The Carolene product of Carolene Products is already, also, and always adulterated, a substitution of an unhealthy and artificial filler (institutional considerations, appeal to a nonexistent legislative consideration) for a more searching inquiry. Might we not inquire, as Congress did, whether this substitution will not ultimately injure the public’s health? When, as here, the Court offers us a less costly product, will we not be tempted to choose it instead of a healthier, albeit more difficult inquiry into the processes of democratic deliberation? Will this purchase of shoddy goods not leave us worse off in the long run?

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 1. Mikva, Goodbye to Footnotes, 56 COLO. L. REV. 647, 653 (1985). See also Austin, Footnotes as Product Differentiation, 40 VAND. L. REV. 1131 (1987).

2. Rodell, Goodbye to Law Reviews, 23 VA. L. REV. 38 (1937); Rodell, Goodbye to Law Reviews – Revisited, 48 VA. L. REV. 279 (1962).

3. Mikva, supra note 1, at 647.

4. Id.


6. Id. at 647 (quoting Rodell, Goodbye to Law Reviews – Revisited supra note 2, at 289).

 7. Id.

8. Id. at 648.

9. Id. at 651.

10. Id. at 647.

 11. Id. at 652.

12. E.g., Mikva, The Changing Role of the Wagner Act in the American Labor Movement, 38 STAN. L. REV. 1123 (1986).

 13. 478 U.S. 186 (1986) (upholding Georgia sodomy statute as applied to consensual homosexual sodomy).

14. Id. at 188 n.2.

 15. 304 U.S. 144, 152 n.4 (1938).

 16. E.g., J. ELY, DEMOCRACY AND DISTRUST (1980); L. LUSKY, BY WHAT RIGHT? (1975); Ackerman, Beyond Carolene Products, 98 HARV. L. REV. 713 (1985); Ball, Judicial Protection of Powerless Minorities, 59 IOWA L. REV. 1059 (1974); Brilmayer, Carolene, Conflicts and the Fate of the “Insider-Outsider”, 134 U. PA. L. REV. 1291 (1986); Cover, The Origins of Judicial Activism in the Protection of Minorities, 91 YALE, L.J. 1287 (1982); Lusky, Footnote Redux: A Carolene Products Reminiscence, 82 COLUM. L. REV. (1982); Powell, Carolene Products Revisited, 82 COLUM. L. REV. 1087 (1982). The responses to Ely’s masterful reinterpretation of footnote four constitute a significant body of literature by themselves: See, e.g., Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 YALE L.J. 1063 (1980); Symposium: Judicial Review v. Democracy, 42 OHIO ST. L.J. 1 (1981); Estreicher, Platonic Guardians of Democracy: John Hart Ely’s Role for the Supreme Court in the Constitution’s Open Texture (Book Review), 56 N.Y.U. L. REV. 547 (1981); Laycock, Taking Constitutions Seriously: A Theory of Judicial Review (Book Review), 59 TEX. L. REV. 343 (1981).

17. Ackerman, supra note 16, at 713.

18. Powell, supra note 16, at 1089.

19. Redux, supra note 16, at 1095.

20. Brilmayer, supra note 16, at 1294.

21. 304 U.S. at 145-46.

22. Id. at 146 n.1.

23. See United States v. Carolene Prods., 7 F. Supp. 500, 501 (S.D. Ill. 1934).

24. 304 U.S. at 146-47.

25. Brilmayer, supra note 16, at 1293.

26. 304 U.S. at 153 n.4.

27. And in the process of fighting this war against a racist regime, our country would make its own invidious distinctions based upon race, distinctions that would be upheld by the very same Court that decided Carolene Products. See Korematsu v. United States, 323 U.S. 214 (1944) (executive order restricting American citizens of Japanese descent held constitutional); Hirabayashi v. United States, 320 U.S. 81 (1943) (curfew imposed on Japanese-Americans held constitutional).

 28. 304 U.S. at 152 n.4 (citations omitted).

29. 304 U.S. at 147 (citations omitted).

30. Carter v. Carter Coal Co., 298 U.S. 238, 291 (1936).

31. See Hammer v. Dagenhart, 247 U.S. 251, 270-71 (1918).

32. Hipolite Egg Co. v. United States, 220 U.S. 45 (1911).

33. 304 U.S. at 147. This is not, however, as great a break with existing precedents as might first appear. See Carolene Prods. Co. v. Evaporated Milk Ass’n, 93 F.2d 202, 204 (7th Cir. 1937).

34. Cf. Bailey v. Drexel Furniture, 259 U.S. 20, 39 (1922); McCulloch v. Maryland, 17 U.S. 74 Wheat.) 316, 423 (1819) (congressional attempts to exercise power not granted to Congress under the pretext of enforcing constitutionally granted powers will be struck down as unconstitutional).

35. 304 U.S. at 148.

36. Id.

37. See 248 U.S. at 303 (legislature permitted to enact regulations to protect public health and prevent fraud).

38. 304 U.S. at 148.

39. Id. at 148-49.

40. Id. at 149 n.2.

41. Id. at 149.

42. See L. TRIBE, AMERICAN CONSTITUTIONAL LAW 1673-87 (2d ed. 1988).

43. See, Sunstein, Beyond the Republican Revival, 97 YALE L.J. 1539 (1988); Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29 (1985).

44. 304 U.S. at 151.

45. Id. at 153-54.

46. Komesar, Taking Institutions Seriously: Introduction to a Strategy for Constitutional Analysis, 51 U. CHI. L. REV. 366, 416 (1984)(footnotes omitted). For a more detailed treatment of the political effects of lobbying by the dairy industry, of which the Filled Milk Act was only one example, see Miller, The True Story of Carolene Products, 1988 S. CT. REV. 397.