United States v. Carolene Products

304 U.S. 144

Case Year: 1938

Case Ruling: 6-1, Reversed

Opinion Justice: Stone

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Black, Butler, Brandeis, Hughes, Roberts


1st Concurring Opinion



1st Dissenting Opinion

Author: McReynolds


2nd Concurring Opinion



2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


In the six years immediately prior to Earl Warren's appointment as chief justice, slightly more than 6 percent of the Court's rulings dealt with religion, expression, and privacy issues. During the Warren era, the number increased to 8.8 percent. The figure reached 10.3 percent and 9.3 percent during the Burger and Rehnquist years, respectively. Although the figure for the Rehnquist era is lower than that of the Burger years, in 2001, twelve of the seventy-seven cases the justices decided (15.6 percent) touched on subjects related to the First Amendment concerns.

Why the proportion of the Court's docket devoted to such cases has grown with time is an interesting question. One answer is that the justices themselves contributed to the growth with two decisions in the late 1930s, Palko v. Connecticut (1937) and United States v. Carolene Products (1938). In Palko, a majority of the justices adopted the doctrine of selective incorporation, which eventually led the Court to apply most of the Bill of Rights to the states. This step, in turn, provided the Court with jurisdiction over a range of personal liberty disputes that it had previously denied itself.

Carolene Products, on its face, seems a less dramatic step than Palko. In fact, at issue in this dispute was an economic, not a civil liberties, regulation. A 1923 law prohibited the interstate shipment of milk blended with oil or fat. After Justice Harlan Fiske Stone, who wrote for the Court in the case, asserted that the justices would generally uphold such laws, he inserted Footnote 4 (reprinted below).

With this note, Justice Stone advanced what has become known as the "preferred freedoms" doctrine. Under it, the Court presumes that most laws are constitutional; it is up to the challenger, not the government, to undermine that presumption. The presumption, however, shifts if the law in question abridges individual rights or liberties. It then is the government's responsibility to show that the law in question is narrowly tailored to achieve a compelling governmental interest. By articulating the preferred freedoms doctrine, which eventually made its way into the text of a majority opinion, the Court signaled its willingness to give closer scrutiny to civil liberties (and rights) disputes and to remove itself from those involving economic issues.



.... [T]he existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.[4]....


[Footnote 4]: 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. On restrictions upon the right to vote, see Nixon v. Herndon; Nixon v. Condon; on restraints upon the dissemination of information, see Near v. Minnesota; ... on interferences with political organizations, see Stromberg v. California; ... as to prohibition of peaceable assembly, see De Jonge v. Oregon.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, Pierce v. Society of Sisters ... or racial minorities. Nixon v. Herndon; Nixon v. Condon; 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....