Guest Post by Dodge Grootemaat
Hi, everybody! Today we have our first guest post by a very dear friend of mine, Dodge Grootemaat. (Seriously, that's his name. It's like he walked straight out of a detective novel!) Dodge graduated from Baylor University magna cum laude, honors with distinction, then went on to graduate from University of Texas School of Law. These days he's Litigation Counsel for Hewlett-Packard. Enjoy! - Damon
You’ve probably seen a footnote before. It's a tiny little number that usually comes at the end of a sentence, like this.1 After seeing the number, you can then look down at the bottom of the page (or at the end of the chapter) and find a more in-depth explanation of something. However, if you’re anything like most people, you pay no attention to footnotes. (It’s ok, I’m like most people too). After all, footnotes are in a small font and they’re down at the bottom and “ain’t nobody got time for that!” But did you know that a single footnote has helped to shape the course of America’s legal history?
Footnote 4 from the case U.S. v. Carolene Products was the most important part of that entire case, and it has had a major impact on history as we know it. It was 1938, and America was still staggering through the Great Depression. In hopes of trying to increase profits, the Carolene Products Company started mixing coconut oil into their milk and selling it as a product called “Milnut.” Unfortunately for Carolene Products, the US Congress had previously passed a law called “The Filled Milk Act” which made it illegal for companies to mix any other types of fats into the milk they sold. The Filled Milk Act was intended to protect everyday people from drinking harmful substances mixed in with their milk. Consider if you will, The Simpsons' take on 'malk'.2
So, how could a case about coconut oil and milk shape US history? Remember, I said the most important part of the case was actually a footnote! Justice Stone wrote the majority opinion, and generally agreed that, when there is a “rational basis” for a law, the Supreme Court will agree that the law is valid. The Carolene case presented an example of a 'rational basis' for a law because Congress wanted to protect consumers from drinking milk that had been mixed with God knows what. But Justice Stone also included a footnote to his comment, indicating that the Supreme Court might not always be so quick to agree with laws passed by Congress. He said there were actually three situations where the Supreme Court would probably disagree with a law:
By this point in history, the Supreme Court invalidating a law was nothing new—Judicial Review dates back to 1803. What made Footnote 4 so groundbreaking is the fact that it outlined the particular circumstances where Congress would need to go an extra mile in order to get the Supreme Court’s blessing. If Congress passed any law that appeared to do one of the above 3 things, the burden would also now be upon them to show why the law was necessary.
This minuscule footnote led to the modern legal idea of “Strict Scrutiny,” which is a test that courts use to be more critical of laws passed by Congress or state governments. The concept of Strict Scrutiny allows courts to examine a law and determine whether there is a truly necessary reason to have the law (beyond merely a rational reason). It also empowers a court to analyze whether the law will actually achieve the intended result, and whether there is some other way to achieve the same goal. Strict Scrutiny has been used as a measuring stick countless times either to invalidate a law or ultimately conclude that the law really is necessary.
How important is Footnote 4 and its offspring, Strict Scrutiny? In the 1960’s, Virginia had a law in place that made it illegal for whites and blacks to marry each other. One couple had actually been sentenced to jail for getting married!3. Their lawsuit alleging that the Virginia law was unconstitutional made it all the way to the US Supreme Court. The Supreme Court then determined that this law could not pass the Strict Scrutiny test because there was not a “compelling government interest” for preventing interracial marriage. Even if the state of Virginia theoretically had the power to pass this law, the law violated individual rights and there was not a truly necessary reason for the law.
So thirty years after Footnote 4 had been written in a case about milk and coconuts, it was still showing up back in court, and ultimately decided the outcome of a major civil rights case.
1. If this were a real footnote, here's where you'd find that more in-depth explanation. Since this footnote is for demonstration purposes, well, tough cookies... ↩
2. Thanks to Professor Chesney for showing this video in his Constitutional Law Class.↩
3. Don’t worry — Mr. and Mrs. Loving didn’t actually have to spend their honeymoon in jail. Instead, a Virginia court gave them the option to leave the state of Virginia and have their jail sentence delayed, to which they happily agreed. They moved back to Washington, D.C. and then brought their lawsuit in Virginia’s court system.↩