LESSON: CAROLENE PRODUCTS & ITS SIGNIFICANCE
Adv Con Law
1. As we have been exploring economic due process and Lochner over the past few weeks, we have studied the Court’s activist approach to protecting lazze faire economics at the expense of statutes protecting workers and their working conditions. Recall how Lochner prevailed from the early 1900s until the late 1920s and into the 1930s, and then the Court through a number of cases distanced itself from the Lochner era and then essentially repudiated it.
2. In U.S. v. Carolene Products, Co. the Court, somewhat surprisingly, decided that it would no longer be an activist Court when confronted with economic regulations imposed by legislated statutes. See David Dalition, Adv. Con Law Note, Substantive Due Process. Whereas strict scrutiny had been applied by the Court when analyzing regulations governing economic matters, the Court decided to use the rational basis analysis when deciding whether statutes imposing on the liberty to contract were being reviewed for constitutionality. See Dalition, Note, The Switch in Time. The most famous aspect of the Carolene Products case is footnote 4, wherein the Court indicated that the rational basis standard would govern other unenumerated liberty interests and that stricter scrutiny would be used hereto forth in cases if “legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments”; if a statute “restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation,” and if a law was directed at “discrete and insular minorities” who, because of discrimination are unable to protect themselves through the ordinary political process. See David Dalition, Adv. Con Law Note, Substantive Due Process. Thus, if an unenumerated liberty interest is at stake, such as the liberty to contract at issue in Carolene Products itself, a mere rational basis standard of review would be utilized. The only “liberties” that would get greater scrutiny were those identified in the bill of rights. See David Dalition, Adv. Con Law Note, Scrutiny and Fundamental Rights. For those purposes, if a Bill of Rights provision has been incorporated into the Fourteenth Amendment so that it applies against the states, it will be deemed to be “equally specific” as to the states even though the text of the Fourteenth Amendment does not mention it. Id. At 152 n.4.
3. Henceforth, the Due Process Clause split protected liberties into those explicitly stated in the Bill of Rights and those such as liberty to contract that are not explicitly mentioned, but that the Court nevertheless sought to protect. See David Dalition, Adv. Con Law Note, Substantive Due Process. Based on this, be prepared to discuss which rights would be entitled to heightened protection, and which would receive only minimal scrutiny using the rational basis test. This will be tested so take the time necessary to understand how Carolene Products impacted the Court’s jurisprudence.
4. How did Carolene Products impact substantive due process jurisprudence and the holdings of Meyer v. Nebraska and Pierce v. Society of Sisters? What type of scrutiny did the Court apply in Meyer and Pierce, and did the Court find the state laws violated the Constitution? See David Dalition, Adv. Con Law Note, Scrutiny and Fundamental Rights. Be prepared to discuss how the Court would rule on those cases following Carolene. What did the Court say about how those cases might be now analyzed using Equal Protection analysis? See Dalition, Note, The Switch in Time. So, be prepared to analyze both Pierce and Meyers after Carolene using Substantive due process and the Equal Protection Clause. What groups were discriminated against in Meyer? How about Pierce? David Dalition
