Carolene Products Footnote Four

     One of the most quoted works on constitutional law is John Hart Ely's Democracy and Distrust:  A Theory of Judicial Review, Harvard University Press, (1980).  The core of Ely's theory of judicial review was footnote four in United States v. Carolene Products Co., 304 U.S. 144 (1938).  At pages 73-74 of his book, Ely sets forth what he believes to be the core of the work of the Warren Court:   
1) Cases regarding criminal procedure and other questions of what judicial or administrative process "is due before serious consequences may be visited upon individuals."  Process oriented decisions.
2) Decisions on political expression and association "as related to the proper functioning of the democratic process."
3) The voter qualification and malapportionment cases.
4) The decisions "insisting on equal treatment for society's  habitual unequals:  notably racial minorities, but also aliens, 'illegimates,' and poor people."

     Then, in his own footnote on page 75 of his book, Ely gives us the center of his constitutional theory:  "[M]y point [is] that the "values" the Court should pursue are "participational values" of the sort I have mentioned, since those are the "values" 1) with which our Constitution has preeminently and most successfully concerned itself, 2) whose "imposition" is not incompatible with, but on the contrary supports, the American system of representative democracy, and 3) that courts set apart from the political process are uniquely situated to "impose."

    Turning to footnote Four in Carolene Products, Ely points out that the first paragraph simply says that the Court should enforce the "specific" provisions of the Constitution.  The second paragraph "suggests that it is an appropriate function of the Court to keep the machinery of democratic government running as it should, to make sure the channels of political participation and communication are kept open."  The third paragraph "suggests that the Court should also concern itself with what majorities do to minorities, particularly mentioning laws 'directed at' religious, national, and racial minorities and those infected by prejudice against them."

    Regarding prejudice highlighted here and in the preceding sentence, Ely has this to say at page 153 of  Democracy and Distrust:  "For whatever else it may or may not be, prejudice is a lens that distorts reality.  We are a nation of minorities and our system thus depends on the ability and willingness of various groups to apprehend those overlappiing interests that can bind them into a majority on a given issue; prejudice blinds us to overlapping interests that in fact exist."

    Here is link to a two page reminder of Carolene Products and the words of its famous footnote four written by then Justice, later Chief Justice, Harlan Fiske Stone. .Download con_law_carolene_products_caseu.doc

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