In response to:
Mr. Justice Pangloss from the October 22, 1964 issue
To the Editors:
…In the substance of his review Yosal Rogat makes the serious charge that Douglas has invented a case which was never decided by the Supreme Court but which purportedly struck down a state law reducing the vote of Negroes, Jews, and Catholics to one tenth.
If Rogat’s criticism here is merely that there is no decision which dealt with state law that explicitly by its terms discriminated against the above mentioned minorities, he is right. But this would be an extremely constricted and indeed incorrect view of U.S. constitutional law.
It is an uncontroverted constitutional principle that a law which “on its face” seems valid, but which is applied in an unconstitutionally discriminatory way, ie., in a way which has an unconstitutional effect, may be held unconstitutional. In the recent apportionment decisions the Supreme Court struck down state laws, whether or not valid on their face, which discriminated against voters in certain ways. These decisions generally hold that voters cannot constitutionally be classified on a basis of where they live when there is a weighting of votes in varying degrees, including a ratio of ten to one; and that to be constitutional, districting schemes must be substantially equal.
These decisions find unconstitutional state laws which in their effect discriminate against Negroes, Jews, and Catholics. This is so because of a social fact which, with minor exceptions, is usually true: as opposed to rural areas, it is the cities which have the largest population concentration of the three mentioned minority groups. Districting which weights votes heavily in favor of rural population therefore effectively disenfranchises city voters, largely composed of minority groups. This should now go without saying and it is simply naive for Rogat not to recognize Douglas’s argument.
Finally, Rogat criticises Douglas for trying to “simplify” and not realize the complexities of the modern world. Properly developed this criticism may have merit. But to be properly developed it must deal with the proposition that in a world torn by strong and irrational passions and tensions it is probably on the balance a good thing to stress similarities among men instead of their differences. And contrary to Rogat, insofar as Douglas succeeds in simplification in this area, which is often, he is to be complimented, not pilloried.
Justice Douglas is of course open to criticism. But it must be criticism of a more responsible nature than is found in Yosal Rogat’s review.