8. The Footnote That Refuses to Stay a Footnote

It still shapes our thinking about constitutional rights

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Footnote Four from Carolene Products will reappear throughout our study of individual rights—equal protection, religious liberty, due process. But before we examine how courts use it, we need to understand what it assumes, and what happens when those assumptions crumble.

And that takes us to Prof. Bruce Ackerman, who tried to bury the footnote—but couldn’t quite kill it.

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The Smartest Guy in the Room Throws Down

In 1985, Columbia law professor Bruce Ackerman published an article that didn’t just question Footnote Four—it tried to wipe it off the doctrinal map.

His Harvard Law Review piece, Beyond Carolene Products, challenged the idea that “discrete and insular minorities” are politically vulnerable and thus deserve special judicial protection. Ackerman argued that the Court had it backwards: these groups often have organizational advantages, not disadvantages. And he had political theory on his side.

The Organizational Advantage Flip

Carolene assumed that isolated minority groups were at a political disadvantage. But Ackerman flipped that logic: closeness creates cohesion, and cohesion is gold for political organizing.

Think of two groups:

• A tight-knit immigrant neighborhood where news spreads quickly, and social norms encourage participation.

• A national coalition of underpaid workers who’ve never met and have no shared institutions.

Guess which one can mobilize more effectively?

Ackerman’s argument was this: courts were giving extra protection to the group that brought a graphing calculator to class, while ignoring the kid still counting on their fingers.

The Prophetic Turn: Women and Gay Rights

Ackerman didn’t just critique. He proposed a shift.

If we care about political vulnerability, we should focus on:

• Women: easily identified (discrete), but dispersed and hard to organize.

• Gay Americans: concentrated in urban areas but often closeted and organizing under threat.

Neither group fit Carolene’s model, yet both faced deep political exclusion. And when their legal victories came—Lawrence v. Texas, Obergefell v. Hodges—they came by appealing to dignity and liberty, not Carolene’s promise of minority protection.

The Congressional Math Problem (or, Not So Fast)

Ackerman pointed to the growing number of Black members of Congress (around twenty by the mid-1980s) as evidence that African Americans had gained real political representation.

But his critics weren’t convinced.

Yes, those representatives existed. But they made up less than 5% of the House despite Black Americans being over 12% of the population. Worse, most came from majority-Black districts, limiting their coalition-building potential on the national stage.

The critique was sharp: Ackerman might be mistaking visibility for power, and access for influence.

The Pariah Problem That Refused to Die

Perhaps the most compelling critique of Ackerman was that he underestimated the staying power of systemic exclusion.

His optimism about minority political success ignored deeper structural barriers—mass incarceration, voter suppression, economic inequality—that continued to render formal political access meaningless for many.

Legal scholars called this the “pariah model”: when you’re technically in the system, but permanently on the margins.

Why Courts Still Love Carolene

In the end, though, the biggest reason Ackerman’s critique hasn’t dethroned Carolene is that courts need something. They need a working theory for when to intervene, and Footnote Four, for all its flaws, still serves that function. It’s simple. It’s memorable. And it avoids turning judges into political scientists.

Plus, new exclusions keep emerging. Even if Carolene misread political dynamics in 1938 or 1985, its spirit still resonates: some groups need judicial protection because political processes won’t protect them on their own.

What This Means for Our Journey Ahead

As we move through equal protection, substantive due process, and First Amendment doctrine, Footnote Four will haunt the margins. Not always cited, but always implied.

This post is a reminder to stay curious—and skeptical. Constitutional doctrine often rests on untested assumptions. Our job is to test them. To rumble with them. To refuse to let them calcify.

Ackerman tried to pull back the curtain. Whether you agree with him or not, he reminds us that constitutional rights aren’t just made in court: they’re imagined, constructed, and argued into being.