Footnote four is a famous footnote from a U.S. Supreme Court case, United States v. Carolene Products Co. 304 U.S. 144 (1938). By imposing a general presumption of constitutionality, it essentially limited judicial review to violations of specific provisions of the Constitution. It has greatly influenced equal protection jurisprudence, and even spawned a theory of judicial review (John Hart Ely's book, Democracy and Distrust). The Supreme Court Building, Washington, D.C. The Supreme Court Building, Washington, D.C., (large image) The Supreme Court of the United States, located in Washington, D.C., is the highest court (see supreme court) in the United States; that is, it has ultimate judicial authority within the United States... United States v. ... 1938 was a common year starting on Saturday (link will take you to calendar). ... A presumption of constitutionality shifts the burden of proof from the government to the citizen, requiring them to prove that a law is unconstitutional. ... Judicial review is the power of a court to review a law or an official act of a government employee or agent; for example, although the basis is different in different countries, as unconstitutional or violating of basic principles of justice. ... The Equal Protection Clause is a part of the Fourteenth Amendment to the United States Constitution, providing that no state shall. ... John Hart Ely (December 3, 1938 - October 25, 2003) is one of the most widely-cited legal scholars in United States history, ranking just after Richard Posner, Ronald Dworkin, and Oliver Wendell Holmes, Jr. ...
Text of the footnote
There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the 14th. [...]
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the 14th Amendments than are most other types of legislation...
Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious...or national...or racial minorities; [or] whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry...
Footnote 1 The assault charge was based on the wounding of a person in the living room who was hit by a bullet that came through the wall.
Footnote 5 Moreover, this rationale would be inapplicable if a homicide occurred at the home of the victim or of a stranger, yet the Arizona cases indicate that a warrantless search in such a case would also be permissible under the "murder scene exception." Cf.
Footnote 13 In light of our holding that Mincey's hospital statements were not voluntarily given, it is unnecessary to reach his alternative contention that their use against him was impermissible because they were not sufficiently inconsistent with his trial testimony.
Much of the importance of Stone's opinion, however, is due to its fourth footnote, in which he describes a theory of judicial review to be taken up later by the Warren Court.
The footnote proposes an exception to the presumption of constitutionality for legislation that is aimed at "discrete and insular minorities," in which case the Court should demand that the law pass a more demanding standard of scrutiny.
Interestingly, the footnote was in the one section of the Court's opinion that did not have the support of five justices, as Justice Hugo Black did not join in the third section, though this was still a majority as only seven justices participated in the case.
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