Friday, April 1, 2011

Constitutional Footnotes: A Month of Footnotes Starting with the Most Famous Footnote

April is "National Poetry Month," and here at Constitutional Law Professors Blog we are celebrating not with a poem a day, but with a footnote a day. 

Although there certainly are some poems about and in constitutional law, arguably (or so I have long thought) footnotes are the next closest creature to "poetry" in Constitutional Law.

It seems fitting to start with what has been called the most famous footnote in law:

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.

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.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities, 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.

 

MILK At issue in United States v. Carolene Products Company, 304 U.S. 144 (1938)  was a federal statute regulating the shipment of "filled milk" (skimmed milk to which nonmilk fat is added so that it may seem to be like whole milk or even cream).  The challenges to the law were based on a lack of commerce clause power and a due process violation.  The case did not involve equal protection - - - which perhaps explains the relegation of the now-famous language to a footnote.

For purists, here's the famous footnote four, complete with citations, from Carolene Products.

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, 283 U. S. 369-370; Lovell v. Griffin, 303 U. S. 444, 303 U. S. 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. 536; Nixon v. Condon, 286 U. S. 73; on restraints upon the dissemination of information, see Near v. Minnesota ex rel. Olson, 283 U. S. 697, 283 U. S. 713-714, 283 U. S. 718-720, 283 U. S. 722; Grosjean v. American Press Co., 297 U. S. 233; Lovell v. Griffin, supra; on interferences with political organizations, see Stromberg v. California, supra, 283 U. S. 369; Fiske v. Kansas, 274 U. S. 380; Whitney v. California, 274 U. S. 357, 274 U. S. 373-378; Herndon v. Lowry, 301 U. S. 242, and see Holmes, J., in Gitlow v. New York, 268 U. S. 652, 268 U. S. 673; as to prohibition of peaceable assembly, see De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 365.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters, 268 U. S. 510, or national, Meyer v. Nebraska, 262 U. S. 390; Bartels v. Iowa, 262 U. S. 404; Farrington v. Tokushige, 273 U. S. 284, or racial minorities, Nixon 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 17 U. S. 428; South Carolina v. Barnwell Bros., 303 U. S. 177, 303 U. S. 184, n 2, and cases cited.

 United States v. Carolene Prod. Co., 304 U.S. 144, 152-53 n.4 (1938).

RR

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Comments

I'm glad you posted a link to your footnotes article. It's well worth reading. The text, that is. But, it's well worth reading for those of us who actually do read footnotes (and end notes for that matter). I had long believed that no one could top Dennis Arrow for his "Pomobabble" article (96 Michigan Law Review 461(Dec. 1997)). But I do think you have bested him. Even if the coincidental publishing date is only that. Surely it is coincidental?

Posted by: Jerry E. Stephens | Apr 1, 2011 6:08:54 AM

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