Cushman on Carolene Products

Barry Cushman, University of Virginia School of Law, has posted Carolene Products and Constitutional Structure.  Here is the abstract:

Harlan Fiske Stone

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, Carolene Products was understood to stand for an important principle of constitutional federalism. This essay, originally delivered as a public lecture for Notre Dame Law School’s Program on Constitutional Structure, seeks to recover that understanding. This effort at recovery offers a reinterpretation of Justice William Day's majority opinion in Hammer v. Dagenhart (1918), arguing that it is best understood as incorporating and resting upon a principle of substantive due process rather than simply upon principles of constitutional federalism. 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.