Through this post I found that Ackermans critique raises another question - What if the actual turning point for the Constitution wasn't Carolene's products but rather the Reconstructions collapse and inability to embed racial equality into the political structure when they had the chance? Through the post-Reconstructions ignorance to protect Black civil rights it allowed for the need of Footnote Four and its logic decades later. So I now wonder, how would the constitutional doctrine look in today's day and age if the 14th amendment was fully enforced in 1875 instead of 1975?
This is a thoughtful and important reframing. You're right; when Reconstruction collapsed and the federal government stopped protecting Black civil rights, it left a major gap in our constitutional system. Carolene Products Footnote Four can be seen as a late and imperfect attempt by the courts to make up for that failure.
If the Fourteenth Amendment had actually been enforced in 1875 (with real protections against racial discrimination and for voting and public access) the courts might not have needed to invent things like tiered scrutiny or Footnote Four. Equal protection could have been the default, not something carved out later for certain groups.
So yes, Footnote Four is a response to that long period of neglect. It reflects how courts tried to repair damage done by political failures. Your comment reminds us that constitutional law isn’t shaped only by what’s written but also by what wasn’t done when it mattered most.
Through this post I found that Ackermans critique raises another question - What if the actual turning point for the Constitution wasn't Carolene's products but rather the Reconstructions collapse and inability to embed racial equality into the political structure when they had the chance? Through the post-Reconstructions ignorance to protect Black civil rights it allowed for the need of Footnote Four and its logic decades later. So I now wonder, how would the constitutional doctrine look in today's day and age if the 14th amendment was fully enforced in 1875 instead of 1975?
This is a thoughtful and important reframing. You're right; when Reconstruction collapsed and the federal government stopped protecting Black civil rights, it left a major gap in our constitutional system. Carolene Products Footnote Four can be seen as a late and imperfect attempt by the courts to make up for that failure.
If the Fourteenth Amendment had actually been enforced in 1875 (with real protections against racial discrimination and for voting and public access) the courts might not have needed to invent things like tiered scrutiny or Footnote Four. Equal protection could have been the default, not something carved out later for certain groups.
So yes, Footnote Four is a response to that long period of neglect. It reflects how courts tried to repair damage done by political failures. Your comment reminds us that constitutional law isn’t shaped only by what’s written but also by what wasn’t done when it mattered most.