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

I am writing about this case because within a single footnote of the opinion, the Court declared a major change in the way it dealt with cases regarding Interstate Commerce. This is an issue that lies at the heart of the "Obamacare" decision, and this author's opinion on the matter relates to Carolene Products quite articulately.

The case itself dealt with a federal law that prohibited so called "filled milk" from being shipped in interstate commerce. The defendant had argued that the law violated both the Commerce Clause and its Due Process rights. The Court  found that the law was "presumptively constitutional," and the issue was therefore essentially a legislative judgment, and hence was not for the courts to decide. Applying the rational-basis standard of review, the Court held that the law was constitutional as it was supported by substantial public-health evidence, and it was not otherwise arbitrary or capricious.

The case is significant, because in the course of its opinion, the court lays out the manner in which it will deal with Commerce Clause cases from this case forward. This road map of sorts appears in Footnote Four.

Footnote four, in its entirety appears below:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth. 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. 536Nixon v. Condon,286 U.S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson,283 U.S. 697, 713-714, 718-720, 722; Grosjean v. American Press Co.,297 U.S. 233Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 369; Fiske v. Kansas,274 U.S. 380Whitney v. California,274 U.S. 357, 373-378; Herndon v. Lowry,301 U.S. 242and 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 religiousPierce v. Society of Sisters,268 U.S. 510, or nationalMeyer v. Nebraska,262 U.S. 390Bartels v. Iowa,262 U.S. 404Farrington v. Tokushige,273 U.S. 284, or racial minoritiesNixon 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 ordinarily 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. [bold and italics emphasis added]

Thus, in summary, the court will apply more exacting scrutiny in cases that:

  • Legislation appears on its face to violate the Constitution, particularly within the first Ten Amendments, aka The Bill of Rights.
  • The court will particularly pay attention to laws that affect the right to vote, or the right to free speech, in sum laws that affect the political processes used to repeal undesirable legislation
  • Legislation that impacts religious, national, or racial minorities or other discrete and insular minorities, essentially those who lack the force in numbers to be adequately represented in the legislative bodies that pass these laws.

If a particular law does not fall within one of those three general categories, not even addressing the multitude of cases that came in the years following the case, creating the particular categories with corresponding levels of scrutiny, then it is presumably constitutional. Put another way, if the law is not obviously unconstitutional, and it does not invoke stricter scrutiny, it is subject to a "rational basis" test. The law is very simple, is there a rational explanation for the law? If so, it is presumably constitutional. Of course there are exceptions to this rule, and evidence may uncover some ulterior motives, but as a legal baseline, if it's otherwise rational, the law stands.