The Footnote– Part II

Copyright 1998 Jack M. Balkin. All rights reserved.


In developing the problematics of this uninteresting opinion – an opinion which professes no interest in the interests of special interests – we seem to have garnered for ourselves a tidy sum (of interest). How could our interpretations of so marginal a product have borne so much fruit? Perhaps Carolene Products is not so unimportant an opinion after all. Perhaps Stone was right to place his famous footnote in the margin of the opinion, for the problems that give rise to this footnote are already implicated in the text.

Carolene Products is the post-1937 Court’s first extended discussion and elaboration of a theory of judicial review proclaimed in a very famous opinion: West Coast Hotel Co. v. Parrish. (47) West Coast Hotel, and its companion in the Commerce Clause area, NLRB v. Jones & Laughlin Steel Corporation, (48) announce the end of the Lochner period in Supreme Court jurisprudence; together they constitute the boundary that separates modern from premodern constitutional law. Yet if West Coast Hotel forms the boundary, Carolene Products is the first way station in this hitherto uncharted territory.

West Coast Hotel is never mentioned in Carolene Products; the former dealt with a line of cases involving labor regulations while the latter concerned itself mainly with cases involving regulation of adulterated foodstuffs. Yet the revolution of West Coast Hotel was very much on the minds of the justices as they decided Carolene Products. The former decision had left many important and unanswered questions. What was the promise of West Coast Hotel v. Parrish? What contours would the new revolution in constitutional jurisprudence take? For Justice Stone, the answer was easy enough. As Stone’s former clerk, Professor Lusky, reports, even before 1937, Stone “had trumpeted a call for ungrudging acceptance of the legislative judgment, for a vigorous presumption of constitutionality, and for leaving governmental decisions to legislators, who had ready access to knowledge of the needs and demands of the sovereign people.” (49) For Stone, the doctrinal strategies of “Third” were the obvious continuation of the glorious revolution of 1937.

Yet however obvious this interpretation of West Coast Hotel was to the justices in 1938, we can see in hindsight that it was not a necessary development. To be sure, there is plenty of language in Chief Justice Hughes’ opinion celebrating deference to the legislature. But West Coast Hotel announces many other revolutionary themes besides that one in the course of upholding Washington’s minimum wage law for women:

The legislature was entitled to adopt measures to reduce the evils of the “sweating system,” the exploiting of workers at wages so low as to be insufficient to meet the bare cost of living, thus making their very helplessness the occasion of a most injurious competition… . There is additional and compelling consideration which recent economic experience has brought into a strong light. The exploitation of a class of workers who are in an unequal position with respect to bargaining power and are thus relatively defenseless against the denial of a living wage is not only detrimental to their health and well being but casts a direct burden for their support upon the community. What these workers lose in wages the taxpayers are called upon to pay… . The community is not bound to provide what is in effect a subsidy for unconscionable employers. (50)

As Professor Tribe has argued, these words could have been understood as a substantive decision about the liberty protected by the due process clause – a decision that “in twentieth century America, minimum wage laws, as a substantive matter, are not intrusions upon human freedom in any constitutionally meaningful sense, but are instead entirely reasonable and just ways of attempting to combat economic subjugation and human domination.” (51) West Coast Hotel could have been seen as the clarion call for a new doctrine of substantive economic justice, where economic rights were based not upon parameters derived from the common law but from evolving notions of economic fairness in a nascent post-industrial America. To be sure, this would have substituted one form of economic substantive due process for another. Yet one could have replied that the difference between them lay in the fact that the latter was the right understanding of economic substantive due process in modern times.

Similarly, West Coast Hotel could have been understood as questioning the political neutrality of the status quo through its deconstructive claim that “[t]he community is not bound to provide what is in effect a subsidy for unconscionable employers.” (52) This delightfully perverse statement responds to an unstated premise in Lochner era jurisprudence. Alterations of common law rules of contract – for example, those designed to ameliorate the inequality of bargaining power between the parties – were viewed by the Lochner Court as subsidizing one of the parties (or the public at large) at the expense of the other. Such alterations were impermissible redistributions of wealth unless they fell within the Court’s limited conception of the police power or were otherwise in aid of common law rights.

Yet, as Professor Sunstein points out, “[t]he notion of subsidy is … incoherent without a baseline from which to make a measurement.” (53) If the employer suffered from the public’s decision to enact a minimum wage law, the employee suffered from the public’s decision not to enact a minimum wage law. One might object that in the latter case the state did nothing by failing to enact such a law, but the logic of West Coast Hotel implies that having a common law of contracts that protects some expectations but not others is a type of action for which the state is ultimately responsible. (54) Hence, West Coast Hotel might have led to a rejection of the common law or the status quo as the benchmark for determining whether economic, political, or civil rights had been violated. (55) This too, would have substituted a new kind of substantive protection for the older, common law inspired jurisprudence of the Lochner Court.

Thus, West Coast Hotel represented a revolution, but a revolution of imprecise contours. It could have been a revolution, as Tribe suggests, in which economic liberty was still protected, but through a different system of values. Or, as Sunstein suggests, it could have been a decision to reject the belief in a neutral market ordering created by a common law for which the state was not responsible. In either case the Court would not have foresworn the legitimacy of substantive review of legislative enactments, or the requirement that legislation demonstrate a “fair and substantial relation” to its stated objectives. (56) In either case, the Court could have claimed that it was a true servant of the revolution. Yet Carolene Products took a third approach. It saw the vice of Lochner, and the virtue of West Coast Hotel, in purely institutional terms. Under this interpretation, the revolution of 1937 was fought not over the content of values but over who was to choose those values – after the revolution, such choices were excluded from the purview of courts and placed solely in the hands of legislatures. Thus, the portion of Carolene Products marked “Third” is by no means insignificant or unimportant. It represents the reinterpretation of the revolution in terms of a seemingly value neutral deference to legislative will.

And here the significance of Carolene Products’ seeming insignificance is revealed. Carolene Products is the humble servant of the messianic West Coast Hotel, playing St. Paul to the latter’s Jesus. If Jesus came to offer a message of salvation for the world, St. Paul told us what that message was. And in interpreting that message for the Gentiles, St. Paul did more than act as a messenger. He invented an entirely new religion – Christianity.

One must pardon the temptation to see the religious analogy here, in this New Testament of our Civil Religion (the Constitution), in this most ecclesiastical of cases, which even bears the name Parrish. Here is the long hoped for Messiah, come to sweep away the old law and replace it with the new (yet at the same time insisting that He came not to abolish the law but to fulfill it). (57) Here is the faithful servant, St. Paul, who in an effort to attract the heathen, downplays the role of good works (read here substantive review) in his Master’s sayings, and informs us that faith alone (in the democratic process) is both necessary and sufficient for salvation. The anti-establishment and revolutionary elements of the Master’s message, the identification with the disadvantaged and the poor, are all marginalized, deemphasized. Good works will not save us, for no one is without sin, and hence no one can gain salvation merely by pursuing the right values; all will ultimately fall short of the mark. The way to heaven is not by good works, the enforcement of the proper choice of values, but through faith in the new civil religion – democracy.

And who writes the epistles that champion this interpretation? Who creates this new civil religion of salvation through faith alone? It is Justice Stone, the apostle whose faith in democracy disguises his agnosticism towards legislative purpose. Stone’s opinion is both St. Paul and St. Peter – Stone’s opinion is the petros (or rock) upon which this new church is founded.

What was the advantage of the interpretation Stone created in Carolene Products, the promise of this new civil religion? Quite simply, Carolene Products seemed to offer an alternative to, and a retreat from, value-laden decisionmaking by the judiciary. To Stone and his brethren, the erratically high level of judicial scrutiny adopted by the old Court had only resulted in a superimposition of its economic and political views onto those of legislatures. In the new constitutional regime, a strong presumption of constitutionality of majoritarian acts and a low level of judicial scrutiny would prevent the judiciary’s intervention into controversial value choices that were properly the concern of the democratic process. Stone’s interpretation of the 1937 revolution counseled that preemptive impositions of value by the judiciary should be eliminated, or at the very least, seriously curtailed.

Ideally, the judiciary would have avoided imposing substantive value choices entirely. Yet this ideal was impossible to achieve in practice, for taken seriously, one would have to overrule Marbury v. Madison and the doctrine of judicial review itself. Moreover, it presented a potential embarrassment. Stone and his allies on the Court were quite concerned that majorities might seek to abridge civil liberties of speech, press, and peaceable assembly, and had joined in several opinions dispensing with the presumption of constitutionality and applying a relatively high level of judicial scrutiny where freedom of speech as opposed to contract was involved. (58) Under the judicial nonscrutiny envisioned in “Third,” an unscrupulous majority could soon make short work of political opponents, and America might easily degenerate into the very sort of fascism that Stone and his brethren saw percolating on the other side of the Atlantic. The problem for Stone and his like-minded colleagues was how to reconcile their instinct for the preservation of civil liberties with their commitment to legislative deference and judicial self-restraint. The revolution they had fought for was in serious danger of unravelling intellectually at the very moment of its success.

According to the institutional interpretation of the 1937 revolution, preemptive value choices had to be excluded from the judicial role. They represented the evil of the old religion, an impurity and a danger to the democratic faith. Yet the need for such preemptive choices reasserted itself as soon as they were excluded. A high level of judicial scrutiny – a serious commitment to judicial review – was both necessary and dangerous to the new civil religion; necessary because of the desire to preserve civil liberties, dangerous because it threatened the intellectual coherence of the new Court’s teachings.

If a serious commitment to judicial scrutiny could not be eliminated in all cases, perhaps it could be confined to its appropriate sphere. The dirty and disgusting job of judicial review might be banished to areas demarcated in advance, much as one places lepers, criminals, or the insane in a colony, prison, or asylum. The messy and questionable task of judicial scrutiny might be confined to particular types of legislation, to a particular group of factual situations, without infecting the purity of the general commitment to democracy. This confinement, this quarantine, might allow the disease or abnormality to be treated on its own terms without risking an infection of the general populace. Here is the solution of Carolene Products – a partial exclusion, which divides the constitutional world into a rule (deference, the kingdom of “Third”) and an exception (scrutiny, the hospital of the footnote, where diseases are treated, or otherwise prevented from injuring the outside world).

And with this exclusion comes a new myth to justify the exile, the marginalization, the neat division of the world into rule and exception, normal case and abnormal, healthy and sick. It is well stated by Justice Powell:

The fundamental character of our government is democratic. Our constitution assumes that majorities should rule and that the government should be able to govern. Therefore, for the most part, Congress and the state legislatures should be allowed to do as they choose. But there are certain groups that cannot participate effectively in the political process. And the political process therefore cannot be trusted to protect these groups in the way it protects most of us. (59)

The key words in this passage – the words that establish and justify the logic of exclusion and marginalization – are “for the most part.” Note their implications: The political process works effectively most of the time; representative democracy can generally be trusted to act in the public interest. Nevertheless, in a small, selected group of cases, which can be readily identified, the process malfunctions. In that marginal set of cases the judiciary properly may subject legislation to a higher level of scrutiny, not because it is authorized to impose its value choices upon the majority, but because the process itself is defective, undemocratic, impure. And in the very act of excluding these marginal situations from the norm, the judiciary demonstrates a double fidelity to democracy: First, because it avoids interfering in the normal processes of democratic institutions, and second, because it intervenes in those and only those abnormal cases in which the democratic ideals that justify judicial deference have been disserved.

Here the Court takes for itself a new role – the physician who tends to the diseased, or the pastor who brings succor and comfort to the criminal or to the leper. And it is well that the Court should confine its work to this very small class of cases – the derelicts of the democratic process. For as Jesus tells us, “[t]hose who are well have no need of a physician, [only] those who are sick.” (60) The Court’s proper role is as master of the marginal, like the doctor who preserves health by treating the sick, the prison warden who preserves safety by sequestering the dangerous, the minister who preserves morality by preaching to the sinful.

The metaphors of purity and impurity, sickness and health, inclusion and exclusion, are busily at work in the language of the third paragraph of the footnote. Stone speaks of prejudice against discrete and insular minorities as a “special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.” (61) Thus, prejudice is a special condition, an impurity or illness that is limited in scope, unusual, a defect that one is not likely to find everywhere. It is precisely because of its limited nature that it can be excluded, cut off, placed outside the political process through judicial supervision. The task of the judiciary, then, is to exclude or set aside those legislative enactments that are the result of this special condition. The rhetoric of inclusion and exclusion closes in upon itself, for exclusion will be remedied by a form of exclusion. The judiciary outlaws those decisions and actions that result from an imperfect political process, leaving the purer, democratic products of the process untouched and uncontaminated.

Yet at the very moment in which Stone makes this division, impurities have already infiltrated into the political system. For we have no reason to believe that prejudice, lack of deliberation, stereotypical thinking, and invidious motivation appear magically only during consideration of legislation that tramples upon civil liberties. (62) If the political process is impure where noneconomic rights are at stake, it is equally impure when economic rights are concerned. Yet this is the governing myth of the new Civil Religion – the process will never fail us when the legislature considers particular subject matters (economic rights) while it often fails us when considering others (political rights).

Merely to state this myth is to reveal its fictional character. Yet the task Stone set for the judiciary in “Third” was to perpetuate that myth, and where economic rights were involved, to disguise every prejudice as a principle, every adulterated action as the servant of the public interest. Once again we see that the substitution of “Third” for “Second” was more than accidental, that it was essential to the logic of Stone’s work. Stone could not have taken what he said in “Second” seriously: to do so would have admitted the possibility that the impurity in the political process could not be cabined in, that it might infect even purely economic legislation. He would have had to admit that legislation that does not directly address civil liberties or the rights of suspect categories, even legislation neutral on its face, might be contaminated by the same disease and deformity that abides in the exile of the footnote. (63) Yet how could he concede that the epidemic had spread beyond the confines of the hospital, that the criminal population had escaped their prison, without destroying the essential myth, the faith of the new Civil Religion? Such an alternative was too horrible to be contemplated. And so, Carolene Products perpetuates a deception through the artful substitution of “Third” for “Second,” clinging all the while to its pluralist faith in a discernible public interest – a public interest that is more than just the vector sum of political forces and yet is achieved only through their summation.


The governing myth of Carolene Products – the division of legislative acts into normal and abnormal, democratic and depraved, is replicated in the syntactic structure of the written opinion. The body of the opinion discusses the (deferential) role of the Court in the usual case, while the discussion of the abnormal, exceptional case of a defective process is placed in a footnote.

Once again, however, the opinion’s self-imitation involves self-commentary and self-contradiction. From the placement of the footnote as a footnote – as a marginal addition to an otherwise complete judicial opinion – one might have gathered that the discussion in footnote four was unessential to the logic of the opinion it appeared in. And indeed, as Professor Lusky reports, Justice Stone did not intend for footnote four to be anything more than exploratory –it was designed merely to stimulate discussion on the issue of when higher levels of scrutiny would be appropriate.(64) However, whether the text of this footnote actually appeared in this or any other opinion, its logic was hardly adventitious. The theory of footnote four was necessary to give intellectual coherence to Stone’s particular interpretation of West Coast Hotel v. Parrish, an interpretation based upon a pluralist conception of politics in which the Court had only a limited role, just as we have already seen that the substitution of “Third” for “Second” was equally necessary to this conception. And if the logic of this footnote was only tentative and not fully developed, this simply made all the more problematic the opinion it supported.

Stone’s institutional interpretation of West Coast Hotel (the third section of Carolene Products) raised the embarrassing question why judicial deference was not appropriate in every case. The reasoning of “Third” seemed to offer no way of picking and choosing among subjects for more searching judicial review. Yet the Court did, in actual practice, strike down some statutes but not others. If so, the Court’s decision to defer in a particular case might be seen as just as much a value choice as the decision to scrutinize strictly in another case, and one was back to the vices of Lochner.

Thus, whenever the Court decided an economic regulation case, the logic of the footnote hovered at the periphery, supporting the Court’s decision by answering the unspoken objection: “Why did you defer here and not elsewhere?” Only by characterizing the Court’s role as properly concerned with marginal failures of process (the subject of the footnote) that called for more searching judicial scrutiny could the Court justify its new role (or nonrole) in the general area of social and economic regulation (the subject of the text). Only by explaining that higher levels of scrutiny were justified by the ideals of democracy themselves and not by a particular substantive conception of values could the new Roosevelt Court distinguish its work from the substantive due process review of the hated Lochner Court. And only by linking the Court’s abandonment of the presumption of constitutionality to the ideals that justified the presumption could the Court explain why it deferred to the legislature in some cases but not others.

Thus in every economic due process case the logic of the footnote is deferred yet present, silent yet secretly evoked. In the doctrinal picture painted by the Court, it is kept outside the canvas, yet through this very act of exclusion it becomes the frame that keeps the canvas taut. Here, then, is yet another sense in which the footnote dominates the text. For not only has footnote four become more famous than the opinion in Carolene Products, it also supports and justifies the pluralist conception of politics in post-1937 constitutional jurisprudence. It is aptly called a footnote – for just as the body cannot stand or move without feet, the edifice of modernist constitutional law cannot support itself without complementary theories of judicial review and nonreview.

Yet, at the same time, if the logic of the footnote supported the logic of the opinion (and hence by extension the logic of post-1937 economic regulation cases in general), the converse was also true: The logic of the famous footnote four was predicated upon the very interpretation of West Coast Hotel that necessitated the footnote’s existence. Footnote four owes as much to “Third” as “Third” owes to it. This footnote is the remedy to a disease, yet like a vaccine it bears the characteristics of the sickness it seeks to cure. The articulation of a justification of judicial review based upon failures of process is the natural result of the institutional interpretation of the 1937 revolution which saw the rough and tumble of legislative bargaining as the appropriate method for ascertaining and enforcing values. Because the text of Carolene Products defends judicial deference in pluralist terms, the footnote also defends judicial nondeference in pluralist terms – that (putting enforcement of the Bill of Rights to one side) judicial review is only justified to the extent that it can be tied to the correction of the limited flaws of democratic pluralism. (65)

The faith of Carolene Products was that one could exclude values from the judicial role, and by casting them out substitute the task of purifying the democratic process. Yet, as so many commentators have noted, the purported exclusion of value that justified Carolene Products is a false exclusion, for controversial value choices arise anew the moment that others are avoided. The Supreme Court still had to identify those minorities and those fundamental liberties that were to be protected by more searching judicial scrutiny. Thus, the problem of the footnote reappeared insistently, for the more value choices were marginalized and excluded, the more the Court depended upon them in its appointed task of purifying the democratic process. Justice Powell aptly notes that

[f]ar from initiating a jurisprudence of judicial deference to political judgments by the legislature, Footnote 4 – on this view – undertook to substitute one activist judicial mission for another… . Where the Court before had used the substantive due process clause to protect property rights, now it should use the equal protection clause – a generally forgotten provision that Holmes once dismissed as ‘the usual last resort of constitutional arguments’ – as a sword with which to promote the liberty interests of groups disadvantaged by political decisions. (66)

The problem of the footnote is especially powerful in this passage. Here the excluded, the marginalized, and the cast out – judicial activism, the equal protection clause, and disadvantaged minorities – combine to subvert the new constitutional regime. The previously discredited equal protection clause becomes the new champion of substantive values. Arguments about liberty are easily disguised as claims about equality and vice versa – an

interchangeability familiar to every student who has taken an introductory course in constitutional law.

Moreover, as soon as the Court tried to exclude substantive due process from consideration, it simply reappeared in a new guise. As many scholars have noted (and especially in the numerous discussions of Dean Ely’s excellent book), one needs a substantive vision – of what kinds of discrimination are invidious, of what kinds of groups are deserving of judicial protection, of the substantive content of fairness, of the rights of due process – in order to determine whether the democratic process has in fact misfired. (67) And here, says Justice Powell,

[one] must pause to wonder. If I am correct about the implicit link between a substantive judgment and a malfunction of process, then one may inquire whether we have not returned in some cases to a kind of substantive due process. And one may also wonder what Stone – who had fought so vigorously against substantive due process – would have had to say about that. (68)

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47. 300 U.S. 379 (1937) (upholding minimum wage law for women, and overruling Adkins v. Children’s Hosp., 261 U.S. 525 (1923)).

 48. 301 U.S. 1 (1937) (holding that National Labor Relations Act was not beyond Congress’ powers under the Commerce Clause).

 49. Lusky, supra note 16, at 1095.

 50. 300 U.S. at 398-99.

 51. L. TRIBE, supra note 42, at 585 (emphasis in original).

 52. 300 U.S. at 399.

53. Sunstein, Lochner’s Legacy, 87 COLUM. L. REV. 873, 876 (1987).

54. Id.

55. See id. at 882.

56. F. S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920).

57. Matthew 5:17.

58. See, e.g., Near v. Minnesota, 283 U.S. 697 (1931); Grosjean v. American Press Co., 297 U.S. 233 (1936); De Jonge v. Oregon, 299 U.S. 353 (1937). See also Lusky, supra note 16, at 1094-95.

59. Powell, supra note 16, at 1088-89.

60. Matthew 9:12.

61. 304 U.S. at 153 n.4.

62. Nor do we have reason to believe that such behavior is not manifested by those persons who actively support and defend civil liberties. See Ackerman, supra note 16, at 739-40.

63. See Brilmayer, supra note 16, at 1305-13.

64. See Lusky, supra note 16, at 1098-99.

65. But can we put the Bill of Rights to one side? Or doesn’t this relegation to the periphery simply recreate the same set of problems discussed throughout this article? If the first paragraph of footnote four – which sees enforcement of the Bill of Rights as an essential judicial function – can be so casually disregarded, if it is itself a footnote within a footnote, will this act of marginalization not result in its own set of difficulties that will trouble us later on?

The first paragraph was inserted into the body of footnote four at the request of Chief Justice Charles Evans Hughes (the author of West Coast Hotel), who wrote Stone that he was “somewhat disturbed” by the theory of the footnote. Lusky, supra note 16, at 1106. The different treatment of cases involving the Bill of Rights, argued Hughes, should “lie not in the nature of the test but in the nature of the right invoked.” Id. (emphasis in original). Hughes meant by this cryptic remark that it was unnecessary to create new levels of scrutiny for cases involving rights like speech. Rather, the judicial function should be the same in all cases under the Due Process Clause or the Bill of Rights. The contours of what would constitute a reasonable restriction of speech should be determined by the nature of the right of free speech, and not by reference to an artificial test of higher or lower scrutiny. See Friedman, Charles Evans Hughes as Chief Justice 1930-1941: The Complexities of Moderation (1978) (Unpublished D. Phil. Thesis). In this respect Hughes was prescient, for the creation of the two tier system of scrutiny did indeed result in future difficulties, as discussed infra text accompanying notes 71-85.

Justice Stone, however, did not directly address this criticism. Rather he simply included cases involving the Bill of Rights in his laundry list of situations in which a higher level of scrutiny might apply. Stone’s grafting of Hughes’ objection into the body of the footnote altered the nature of the objection, and at the same time introduced a dangerous supplement into the theory of the footnote itself. While the second and third paragraphs justify judicial review as a means of counteracting pathologies in the representative structure of democracy, the first paragraph appears to justify judicial power on the basis of textual commitments in the Constitution itself. It thus undercuts the non-textual or meta-textual justification of judicial review in the succeeding paragraphs. Moreover, while the second and third paragraphs envision judicial protection of relatively neutral pluralist and democratic values (as opposed to the particular values of particular majorities), the first paragraph suggests that the judiciary should enforce the Constitution’s openly substantive commitments listed in the Bill of Rights. See Tribe, supra note 16, at 1065-70. Moreover, as discussed in the next section of text, to defend these substantive choices on the ground that they, too, are somehow necessary to the protection of democratic values, threatens to call into question the original assumption of value neutrality.

66. Powell, supra note 16, at 1089-90 (quoting Buck v. Bell, 274 U.S. 200, 208 (1927)).

67. See, e.g., Brilmayer, supra, note 16; Ackerman, supra, note 16; Tribe, supra note 16; Brest, The Substance of Process, 42 OHIO ST. L.J. 131 (1981).

68. Powell, supra note 16, at 1091.