The fourth footnote in the Court opinion in this case proposes the use of strict judicial scrutiny when considering explicit constitutional guarantees and discrimination against minorities. Called “the most famous footnote in American constitutional history,” it later provided a theoretical foundation for judicial activism in defense of minorities and fundamental rights.

While upholding a relatively minor congressional regulation of commerce in this case, the Court employed a presumption of legislative constitutionality, just as it had done in earlier cases dealing with economic regulations of business. Because the Court had not utilized this presumption of constitutionality when examining a restriction on the freedom of the press in Near v. Minnesota[c]Near v. Minnesota (1931), Justice Harlan Fiske Stone, encouraged by Chief Justice Charles Evans Hughes, included a three-paragraph footnote written to justify the use of different presumptions for different legal issues. Although Stone spoke for a 5-2 majority in the major ruling of the case, he actually only spoke for himself and two other justices in the most crucial passage of the footnote.

Chief Harlan Fiske Stone, author of the historic “footnote four” in the Carolene decision.

(Collection of the Supreme Court of the United States)

In essence, the footnote explained why it was appropriate for the Court to apply different standards of judicial scrutiny for different kinds of legislation. The first paragraph asserts that the presumption of constitutionality might be of “narrower scope” when the challenged legislation appeared to contradict a specific prohibition explicitly written in the Constitution, as in the Bill of Rights. The second paragraph suggests that courts might need to use heightened scrutiny when reviewing legislation restricting those political processes that usually make it possible to bring about the repeal of undesirable legislation. The third paragraph suggests that a “more searching judicial inquiry” might be necessary in order to preserve the constitutional rights of racial or religious minorities, because such minorities commonly possess limited political influence.

After World War II, the majority of the Supreme Court justices would endorse a modified version of the Carolene Products footnote, requiring application of strict judicial scrutiny when dealing with two issues: racial classifications and restrictions on fundamental rights.

Bill of Rights

Due process, procedural

Due process, substantive

Equal protection clause


Incorporation doctrine

Judicial scrutiny

Judicial self-restraint

Stone, Harlan Fiske