Carolene Products and Constitutional Structure

58 Pages Posted: 29 Mar 2012 Last revised: 20 Jun 2016

Date Written: February 6, 2013


Justice Harlan Fiske Stone's majority opinion in United States v. Carolene Products Co. is well-known for its statement of two principles. The first is that regulatory legislation affecting ordinary commercial transactions is to be afforded a strong presumption of constitutionality. The second principle, articulated in the famous Footnote Four, qualifies the first: such a strong presumption of constitutionality is not warranted when legislation appears on its face to violate a provision of the Bill of Rights, or restricts ordinary political processes, or is directed at discrete and insular minorities. At the time the decision was announced, however, the decision in Carolene Products was recognized as marking an important step in the development of Commerce Clause jurisprudence. This article seeks to recover that understanding, which rested on a conception of the relationship between individual rights and constitutional federalism that has faded from memory. The key to this effort at recovery is a reinterpretation of the puzzling and seemingly inconsistent line of Supreme Court decisions involving the constitutionality of federal statutes prohibiting the interstate shipment of such disfavored items as lottery tickets, adulterated or mislabeled food and drugs, alcoholic beverages, stolen automobiles, and child-made goods. The article reconciles this line of cases by arguing that they are best understood as incorporating and resting upon principles of vested rights and substantive due process rather than upon principles internal to the Commerce Clause. This lays the groundwork for the development of an enhanced appreciation of the important role that the Fifth Amendment's Due Process Clause played in the allocation of state and federal regulatory authority in the Progressive Era, and of the signal role that Carolene Products played in the passing of that regime of constitutional law.

Keywords: Constitutional Structure, Substantive Due Process, Federalism, Carolene Products, Hammer v. Dagenhart, Fair Labor Standards Act, United States v. Darby, Child Labor

Suggested Citation

Cushman, Barry, Carolene Products and Constitutional Structure (February 6, 2013). 2012 Sup. Ct. Rev. 321 (2013), Notre Dame Legal Studies Paper No. 1303, Virginia Public Law and Legal Theory Research Paper No. 2012-25, Available at SSRN:

Barry Cushman (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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