Selective Judicial Activism: Defending Carolene Products

18 Pages Posted: 4 Mar 2016

See all articles by Suzanna Sherry

Suzanna Sherry

Vanderbilt University - Law School

Date Written: March 2, 2016


This Essay, written for a symposium asking “Is the Rational Basis Test Unconstitutional?,” defends the bifurcated-scrutiny approach of Carolene Products and its famous footnote four. A growing cadre of conservative and libertarian scholars has called for increased scrutiny of legislation affecting economic rights. The Essay marshals four types of arguments to suggest that regulation of market activities should not be subject to the same, heightened, level of scrutiny as legislation affecting personal rights: moral arguments, constitutive arguments, consequentialist arguments, and arguments resting on the likelihood of illicit legislative motives.

Keywords: libertarian, heightened scrutiny, rational basis, judicial activism, economic regulation, Carolene Products, footnote four

Suggested Citation

Sherry, Suzanna, Selective Judicial Activism: Defending Carolene Products (March 2, 2016). Georgetown Journal of Law & Public Policy, Forthcoming, Vanderbilt Public Law Research Paper No. 16-9, Available at SSRN:

Suzanna Sherry (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States
615-322-0993 (Phone)

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