The Future of Footnote Four

46 Pages Posted: 19 Dec 2011

See all articles by Dan T. Coenen

Dan T. Coenen

University of Georgia Law School

Date Written: 2007

Abstract

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.

Keywords: Constitutional law, United States v. Carolene Products Co., unempoweredness principle

JEL Classification: K19

Suggested Citation

Coenen, Dan T., The Future of Footnote Four (2007). Georgia Law Review, Vol. 41, pp. 797-842, 2007. Available at SSRN: https://ssrn.com/abstract=1974609

Dan T. Coenen (Contact Author)

University of Georgia Law School ( email )

225 Herty Drive
Athens, GA 30602
United States

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