United States v. Carolene Products Co., 304 U.S. 144; 58 S. Ct. 778; 82 L. Ed. 123 (1938)
Facts—In March 1923 Congress passed the “Filled Milk Act,” which prohibited the shipment in interstate commerce of skimmed milk compounded with any fat or oil other than milk fat, so as to resemble milk or cream. The appellee was indicted in southern Illinois for shipping in interstate commerce certain packages of a filled milk compound.
Question—Does this regulation exceed the power of Congress over interstate commerce, and thus deprive individuals of property without due process of law?
Decision—No.
Reasons—J. Stone (6–1). The statute describes filled milk as an adulterated article of food, injurious to health, and a fraud upon the public. “Even in the absence of such aids the existence of facts supporting the legislative judgment is to be presumed, for regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it is of such a character as to preclude the assumption that it rests upon some rational basis within the knowledge and experience of the legislators.” In this case, it is at least debatable whether commerce in filled milk should be left unregulated, partially restricted, or entirely prohibited. That was a decision for Congress, and as such, the prohibition of shipment in interstate commerce of this product was a constitutional exercise of the power to regulate inter- state commerce. Congressional power to regulate commerce is the power to prescribe the rules by which commerce is to be governed. This extends to the prohibition of shipments in such commerce. This power is complete and unlimited, except as limited by the Constitution. Congress is free to exclude from interstate commerce articles whose use in states may be injurious to public health, morals, or welfare, or that contravene the policy of the state of their destination.
Note—Carolene Products contains the now-famous footnote four of Justice Harlan Fiske Stone. This footnote set up a double standard of adjudication presuming that economic legislation would be presumed constitutional unless on its face it obviously was not, while subjecting other types of legislation to greater judicial scrutiny. Legislation requiring such exacting scrutiny included that violating a specific provision of the Bill of Rights and/or the Fourteenth Amendment, legislation related to political processes (especially where democratic channels were blocked), and legislation directed against religious, racial, or other “discrete and insular minorities” who might not be able to protect themselves through majoritarian political processes.