The Future of Footnote Four
Dan T. Coenen
University of Georgia Law School
Georgia Law Review, Vol. 41, pp. 797-842, 2007
The Supreme Court's decision in United States v. Carolene Products Co. generated the most famous footnote-and perhaps the most famous passage-in all of the American Judiciary's treatment of constitutional law. Among other things, Footnote Four suggested that "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." The importance of this principle cannot be overstated. It pervaded the work of the Warren Court and has played a prominent role in constitutional discourse ever since.
In this Article, I reflect on the "discrete and insular minorities" component of Footnote Four,denominating it in shorthand fashion as the "unempoweredness principle." In doing so, I draw on the seminal work of my colleague Milner Ball and also touch on the work of other scholars, most notably Professor Cass Sunstein. I examine three main subjects. First, I speak of the possibility that the rising rhetoric and reality of constitutional "minimalism" may dilute long-vibrant understandings of the unempoweredness principle. Second, I investigate one form that dilution of the unempoweredness principle might take-namely, by way of transforming it (in whole or in part) from a rule of hard-and-fast constitutional law into a rule of statutory interpretation. Third, I consider whether the unempoweredness principle now faces the prospect of wholesale abandonment.
Number of Pages in PDF File: 46
Keywords: Constitutional law, United States v. Carolene Products Co., unempoweredness principle
JEL Classification: K19Accepted Paper Series
Date posted: December 19, 2011
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