7. The Footnote That Changed Everything

On Carolene Products and constitutional hierarchy

It’s 1938. The Great Depression still grips the nation. FDR’s New Deal is reshaping American government. And somewhere in the marble halls of the Supreme Court, Justice Harlan Fiske Stone is about to pen what might be the most consequential footnote in constitutional history.

The case? United States v. Carolene Products Co. The issue? Whether Congress could ban “filled milk”—that delightful Depression-era concoction of skim milk mixed with non-milk fats that apparently posed such a threat to public health that it required federal intervention.

On its face, this seems like constitutional small-ball. The Court, having just abandoned its Lochner-era devotion to economic laissez-faire in cases like Nebbia, dutifully upheld the law. Congress wanted to regulate commerce in fake milk? Fine. The justices had learned their lesson about second-guessing economic policy.

But Stone wasn’t content to simply rubber-stamp another New Deal regulation. In what appeared to be a throwaway footnote—literally footnote four—he quietly revolutionized constitutional law.

The Great Constitutional Reordering

What Stone did in that famous footnote was audacious in its simplicity: he created a hierarchy of constitutional rights.

For nearly 150 years, the Constitution had been treated like a flat document—every provision theoretically equal in weight and significance. Property rights, free speech, due process, interstate commerce were all just different clauses in the same foundational text.

Stone blew up this egalitarian vision. Some rights, he suggested, were more constitutional than others.

At the bottom of his new hierarchy sat economic regulations—laws governing business, trade, and property. These would receive what we now call “rational basis review”: as long as Congress had any conceivable reason for the regulation, courts would defer. The filled milk ban? Rational. Minimum wage laws? Rational. Price controls? Probably rational.

But higher up Stone’s constitutional ladder sat rights that deserved “more exacting judicial scrutiny.” What kinds of rights? Stone identified three categories that would make courts sit up and pay attention:

First, laws that violated specific constitutional prohibitions. If the First Amendment said, “Congress shall make no law,” then by God, courts would take that seriously.

Second, laws that restricted the political process itself: voting rights, access to information, the machinery of democracy. After all, if the democratic process was corrupted, how could we trust it to self-correct?

Third, laws directed at “discrete and insular minorities,” i.e., groups that couldn’t protect themselves through normal political channels.

The Footnote’s Quiet Revolution

One can almost picture Stone at his desk, perhaps pausing mid-sentence as he crafted this seemingly innocuous footnote. Did he realize he was fundamentally reordering American constitutional law? Or did it feel like simple common sense, a natural response to the Court’s recent economic humbling?

The genius of Stone’s framework wasn’t just intellectual; it was deeply practical. The Court had spent decades embarrassing itself by striking down popular economic reforms in the name of “liberty of contract.” They’d learned the hard way that nine lawyers in robes weren’t equipped to run the American economy.

But did that mean courts should abandon their constitutional role entirely? Stone’s answer was elegantly nuanced: retreat from economic oversight, but double down on protecting democracy and fundamental rights.

Think about the constitutional logic here. Economic regulations could be challenged and changed through normal politics. Voters dissatisfied with milk regulation could elect different representatives. The democratic process provided its own corrective mechanism.

But what about laws that rigged the democratic game itself? Restrictions on speech, barriers to voting, discrimination against unpopular groups—these demanded judicial intervention precisely because they threatened the democratic process that was supposed to provide relief.

The Beautiful Irony of Judicial Restraint

There’s something wonderfully paradoxical about Stone’s vision. In the name of judicial restraint (stepping back from economic policymaking) he expanded judicial power in other areas.

The Lochner Court had been activist in the wrong direction, treating every economic regulation as a constitutional crisis. Stone’s Court would be activist in defense of democracy itself. They’d defer on questions of economic policy while scrutinizing threats to the political process.

It was like a Supreme Court version of “pick your battles.” Instead of fighting every war, choose the ones that matter.

Consider the intellectual elegance of this approach. The same Constitution that protected property rights also protected free speech. But Stone recognized what the Lochner Court had missed: these rights operated in fundamentally different spheres, with different relationships to democratic governance.

Property rights were important, but they could be balanced against competing social interests through the political process. Speech rights were different; they were the precondition for that political process to function at all.

Constitutional Tiers in Practice

The implications were staggering. Economic regulations that would have triggered constitutional warfare in 1905 now sailed through with minimal judicial review. Meanwhile, laws restricting speech, press, religion, or targeting minority groups would face the full force of judicial scrutiny.

Imagine being a lawyer in 1939, trying to explain this shift to clients: “Well, your minimum wage challenge is probably doomed—courts don’t care about economic rights anymore. But if you’re challenging a law that restricts political speech? Now we’re talking.”

The Court had essentially divided the Constitution into constitutional first-class and coach sections. Some rights got champagne and extra legroom; others got peanuts and middle seats.

This wasn’t arbitrary hierarchy; it reflected a sophisticated understanding of democracy’s requirements. For democratic government to work, citizens needed access to information, the ability to participate in politics, and protection from majoritarian oppression. Economic regulations, by contrast, were the product of democratic governance, not its precondition.

The Long Shadow of Footnote Four

Stone’s framework became the architecture of modern constitutional law. Today’s lawyers learn about “levels of scrutiny” as if they’d always existed, but they’re really learning Stone’s 1938 innovation.

Strict scrutiny for fundamental rights and suspect classifications. Intermediate scrutiny for quasi-suspect categories. Rational basis review for everything else. This entire analytical structure traces back to Stone’s insight that not all constitutional provisions are created equal.

The footnote also revealed something profound about constitutional interpretation itself. The text of the Constitution hadn’t changed between 1905 and 1938, but the Court’s understanding of its role had evolved dramatically. Constitutional meaning, Stone seemed to suggest, isn’t just about parsing eighteenth-century prose; it’s about understanding how different constitutional provisions interact with democratic governance.

The filled milk case itself was forgettable, just another Depression-era regulation rubber-stamped by a chastened Court. But the footnote that accompanied it changed everything, creating the intellectual architecture that still governs constitutional law today. Sometimes the most profound revolutions happen quietly, in the margins, one footnote at a time.

Doctrinal note:

The modern framework of tiered scrutiny (strict, intermediate, rational basis) traces its origins to Footnote 4, but Footnote 4 itself did not create the tiers as we know them today. Instead, it laid the conceptual groundwork for heightened judicial scrutiny in certain cases.

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