About Those Strange Citations at the End of Footnote 4

The second and third paragraphs of United States v. Carolene Products footnote 4 famously advance in dictum a “process” rationale for the then-evolving system of two-tiered judicial review. This section provides a justification for judges to apply heightened review for some statutes but not others. Odd, however, is the authority cited at the very end of the footnote.

Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious . . . or national . . . or racial minorities . . . 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. Compare McCulloch v. Maryland, 4 Wheat. 316, 428; South Carolina v. Barnwell Bros., 303 U.S. 177, 184, n. 2, and cases cited.

The curiosity is this: Neither the 1819 case of McCulloch v. Maryland nor the 1938 case of South Carolina v. Barnwell Brothers relates to judicial application of the Bill of Rights or of the Fourteenth Amendment. McCulloch is a well-known case regarding intergovernmental tax immunity. Barnwell Brothers is a lesser known case regarding the dormant commerce clause. Footnote 4’s much vaunted process rationale applies an earlier, and broader, understanding of democratic decision making in the U.S. constitutional system.

South Carolina State Highway Department v. Barnwell Brothers concerned a dormant Commerce Clause challenge to the state’s law setting width and weight limitations on trucks traveling on its highways. In upholding South Carolina’s law, the Court provided a brief explanation of its dormant Commerce Clause jurisprudence. It appended footnote 2 to its discussion:

State regulations affecting interstate commerce, whose purpose or effect is to gain for those within the state an advantage at the expense of those without, or to burden those out of the state without any corresponding advantage to those within, have been thought to impinge upon the constitutional prohibition even though Congress has not acted.

Underlying the stated rule has been the thought, often expressed in judicial opinion, that, when the regulation is of such a character that its burden falls principally upon those without the state, legislative action is not likely to be subjected to those political restraints which are normally exerted on legislation where it affects adversely some interests within the state.

The argument is about the working of state-level democratic processes. Considerations of externalities inform the discussion as well. But those considerations are nested in a broader understanding of how the work of state-level democracies ordinarily provides for the public good. This alongside the pathological incentive structures states face that can prevent state-level democratic decision-making from providing for the public good.

In McCulloch v. Maryland, the second non-rights case cited at the end of footnote 4, Maryland imposed a tax on non-state banks operating within the state. The Second Bank of the United States had a branch in Baltimore which was subject to the tax. In holding the Maryland tax unconstitutional, the Court noted that allowing states to tax national instrumentalities effectively imposed a state tax on out-of-state residents. The objection was not merely economic or formalistic; the Court hearkened implicitly to the great democratic principle of “no taxation without representation.” As in Barnwell, what prompted the case was a pathological state-level incentive structure preventing the ordinary working of democratic decision to provide nationally for the public good. The Court wrote:

It is admitted that the power of taxing the people and their property is essential to the very existence of Government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the Government may choose to carry it. The only security against the abuse of this power is found in the structure of the Government itself. In imposing a tax, the legislature acts upon its constituents. This is, in general, a sufficient security against erroneous and oppressive taxation.

The people of a State, therefore, give to their Government a right of taxing themselves and their property, and as the exigencies of Government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator and on the influence of the constituent over their representative to guard them against its abuse. But the means employed by the Government of the Union have no such security, nor is the right of a State to tax them sustained by the same theory. Those means are not given by the people of a particular State, not given by the constituents of the legislature which claim the right to tax them, but by the people of all the States They are given by all, for the benefit of all — and, upon theory, should be subjected to that Government only which belongs to all.

The curiosity of citing these two cases in in footnote 4 is this: The footnote concerns the means by which democratic majorities impose on minorities. McCulloch and Barnwell certainly relate to outcomes of democratic processes in which affected individuals are unrepresented in a state-level democratic process. But the democratic pathologies identified in McCulloch and Barnwell are even more striking than in footnote 4. The state-level impositions in McCulloch and Barnwell are upon a national-level majority, not on a minority. Or, more precisely, the topic in McCulloch and Barnwell are how a national-level minorities impose on national-level majorities. The “countermajoritarian difficulty” at the heart of footnote 4 actually inverts the solicitude for the majority in McCulloch and Barnwell.