Fool: “I love the Beatles.”
Ziemer: “Look, man, the Beatles are not good music. They are not even bad music. They are anti-music. The abhorrent noise that the Beatles made is not simply not music, but it is the opposite of music.”
Fool: “You are a fascist.”
A substantively identical conversation occurs whenever an argument breaks out over U.S. v. Carolene Products, 304 U.S. 144 (1938), which deals with unconscionably upholding the criminalization of shipping filled milk across a state line.
“Filled milk,” in case you forgot from law school, is merely condensed milk that contains fats from products other than milk, such as vegetable oil or coconut oil.
A modern day corollary of the law at issue in Carolene Products would be if the dairy industry bribed enough Congressmen to outlaw the interstate shipment of Cool Whip.
The statute was, of course, naked special interest legislation, served no legitimate health interest and was enacted merely to secure the support of dairy farmers for incumbent Congressmen.
At the time the court issued its opinion, 35 state legislatures, acting as pawns of the dairy industry, had already outlawed filled milk altogether. So, the federal law’s only purpose was to effectively outlaw it in the few states not controlled by the powerful milk lobbyists.
But the court shamelessly refused to even consider the argument that the statute served no legitimate health concern, and thus violated due process.
Enemies of human liberty praise Carolene Products; I argue the opinion is not entitled to be considered law at all … and they call me a fascist.
Carolene Products is not good law. It is not bad law either. It is anti-law.
Just as the Beatles deliberately produced abhorrent noise antithetical to what any reasonable person would consider music, so too did the U.S. Supreme Court in Carolene Products deliberately produce an opinion antithetical to law. The court abdicated its responsibility to enforce the Due Process Clause of the U.S. Constitution.
Looking back on human history in general, and human liberty in particular, there are several important documents that stand apart and above from the rest as essential documents: the Magna Carta (1215), the Declaration of Independence (1776), the U.S. Constitution (1787), the adoption of the 13th, 14th, and 15th Amendments to the U.S. Constitution (1865-1870), and of course, the opinion of the U.S. Supreme Court in Lochner v. New York, 198 U.S. 45 (1905).
These assorted documents stood as bedrock bulwarks against government tyranny until that infamous day in 1938 when the U.S. Supreme Court declared, in the infamous footnote 4 to Carolene Products, that human liberty was no longer any relevant concern. Since then, Congress has been free to impose any infringement on liberty it chooses, and courts are obligated to pretend that no such infringement has occurred. Lochner has not been cited as precedent to overturn special interest legislation to this day.
One of these days, Lochner will be restored as law. And one of these days, people will stop listening to the Beatles, and I’ll never have to hear that noise again.
But until then, I’ll quote those same Beatles. “You say you want a revolution?” Yes, I do.