Guest Essayist: Robert Lowry Clinton

United States v. Carolene Products Co. 304 U. S. 144 (1938)

This case belongs to a string of cases dating from the late nineteenth century involving substitute or imitation dairy products. Carolene Products arose from a controversy over “Milnut,” a beverage made from mixing skimmed milk with another product that is not milk fat (usually vegetable oil, in this case, coconut oil). In 1923, Congress passed the Filled Milk Act, which prohibited the transportation of filled milk in interstate commerce. Despite the fact that congressional investigators concluded that filled milk was not harmful in itself but was problematic only when falsely labelled and marketed as real milk, the statute nonetheless declared that filled milk was “an adulterated article of food, injurious to the public health,” and a “fraud upon the public.”

In 1934, a federal district court in Illinois declared the Filled Milk Act unconstitutional on the ground that the act exceeded the authority of the national government by encroaching on the reserved powers of the states. The court reasoned that Congress was really trying to exercise local police powers which were the appropriate domain of the states. The district court also concluded that the act violated the Fifth Amendment’s prohibition against taking private property without due process of law, since banning the product outright when it had been found inherently harmless deprived its owners of their property without providing adequate judicial recourse in individual cases.

The government appealed the district court’s ruling to the Supreme Court and the Court reversed the lower court’s decision, upholding the act. The Court’s decision was based largely on the earlier cases of The Hebe Co. v. Shaw, 248 U.S. 297 (1919), in which the Court upheld a state law prohibiting the manufacture or sale of a product deemed harmless (skimmed milk mixed with coconut oil), McCray v. United States, 195 U.S. 27 (1904), in which the Court upheld a punitive tax on yellow oleomargarine, and Powell v. Pennsylvania, 127 U.S. 678 (1888), in which the court upheld a state law prohibiting the sale of imitation or adulterated butter, cheese or other milk products.

In its Carolene Products opinion, the Court (per Justice Stone) reasoned that danger to the public may exist “where an inferior product, like appellee’s, is indistinguishable from a valuable food of almost universal use, thus making fraudulent distribution easy and protection of the consumer difficult.” In such circumstances, the decision as to whether consumers would be best protected by adequate labelling requirements or outright prohibition “was a matter for the legislative judgment and not that of courts.” In conclusion, the Court declared that “regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally presumed 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.”

The case itself has usually been treated as routine and insignificant by most scholars, except for the famous and gratuitous “Footnote Four” attached to the quoted passage above. After articulating the “rational basis” test for cases involving “ordinary commercial transactions,” Justice Stone went on to add (in the footnote) that 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 the first ten amendments,” or when legislation “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” or when legislation is “directed at particular religious . . . or national . . . or racial minorities.” Such cases, which may involve “prejudice against discrete and insular minorities,” call for “more searching judicial inquiry,” and the legislation under review in these cases thus may be “subjected to more exacting judicial scrutiny.”

The rationale underlying the Court’s dictum in Footnote Four was later developed into a wholesale overthrow of the Court’s turn-of-the-century jurisprudence of laissez-faire, in which the Court closely scrutinized legislation allegedly infringing property rights and contractual freedom. Henceforth, legislation affecting economic matters would be presumed constitutionally valid, while legislation affecting the rights of “discrete and insular minorities” would be subjected to “more exacting judicial scrutiny,” thus reversing the presumption. This move opened the door to the Court’s modern jurisprudence featuring protected or semi-protected classes, group rights and identity politics, multiple tiers of “scrutiny” for legislation affecting different groups and, more generally, enhanced judicial control of American society and culture in some of its most important dimensions.

Largely because of Footnote Four and its subsequent development by the Court, the Carolene Products case represents a major turning point not only in the Court’s constitutional jurisprudence, but also in the balance of power in the constitutional system. Both federalism (the distribution of power between the national government and the states) and the separation of powers (the distribution of power between the three branches of the national government) have been profoundly affected by the decision.

First, the Court’s cavalier dismissal of the district court’s argument that the Filled Milk Act intruded upon the traditional power of the states to protect public health and safety was probably not justified. In the original constitutional design of the Founders, the balance of power between state and nation is in a perpetual tension that is never to be fully resolved. Yet throughout the 1930s, the so-called “police powers” of the states, reserved to the states by the Tenth Amendment, had come under increasing attack because of the Great Depression and the popular demand for greater intervention in economic affairs by the national government. The Court itself had come under attack for its initial opposition to many of the Roosevelt administration’s New Deal measures. Consolidated national power was all the rage.

Second, perhaps little noticed at the time, the Court itself was moving to enhance its own authority vis-a-vis the other branches of the national government. The previous year, the Court had decided Palko v. Connecticut (1937), in which the Court had developed a rationale for overturning state laws found to contravene provisions in the federal Bill of Rights that were deemed so “fundamental” by the Court as to be “implicit in the concept of ordered liberty.” The result of the Palko opinion was to open the door to federal Bill of Rights challenges to state laws–thereby weakening the power of states to govern their own citizenries, and to increase the Court’s discretion in the determination of what constitutional issues qualify as “fundamental”–thereby enhancing its own power vis-a-vis the other branches of government.

The ultimate effect of Footnote Four is similar to that of Palko v. Connecticut. While Palko formulates a rationale for enhanced judicial discretion in Bill of Rights cases as applied to the states via the Fourteenth Amendment, whenever the Court deems such rights to be sufficiently “fundamental,” Footnote Four provides a rationale for enhanced judicial discretion in cases involving rights that the Court considers so “fundamental” as to warrant departure from traditional standards of deference to legislative judgment, widening the scope of its discretion to national laws in addition to those of the states. It is on the basis of this rationale that the Court has overturned traditional American practices ranging from school prayer and bible-reading to traditional marriage, all at the behest of the famous footnote’s “discrete and insular minorities.”

United States v. Carolene Products Co. (1938) Supreme Court decision:

Robert Lowry Clinton holds B.A. and M.A. degrees from Texas Tech University and a Ph.D. in Government from the University of Texas at Austin. He is the author of Marbury v. Madison and Judicial Review and God and Man in the Law: The Foundations of Anglo-American Constitutionalism (both published by the University Press of Kansas), as well as numerous journal articles and book chapters. He is a Fellow of the Center of Science and Culture at the Discovery Institute in Seattle, Washington, and was a Fellow of the James Madison Program in American Ideals and Institutions at Princeton University in 2007-08. Dr. Clinton’s main fields of study are in Supreme Court history, constitutional jurisprudence, social and political philosophy, and political theology.


Howard Gillman, Mark A. Graber, Keith E. Whittington, eds., American Constitutionalism, Volume I: Structures of Government. New York: Oxford University Press, 2013.

1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Another very interesting essay that provides even more insight into the fundamental changes we’ve undergone as a nation.

    It is notable that one or two cases: 1) emasculated States rights, 2) set the Admin State above the Legislature, 3) expanded Presidential powers, 4) expanded SCOTUS powers, while ironically 5) diminishing the powers of the Legislative and Judicial Branches to exercise the intended powers and tension of balance of powers.

    The question now is to what degree has the Constitutional Republic been replaced with an Administrative/Executive form of government. Slightly? Somewhat? Mostly? Nealy completely? I wonder how the Founder’s would answer?



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