# Butcher v. Bloom > Supreme Court of Pennsylvania · September 29, 1964 · 415 Pa. 438 URL: https://www.frixlaw.com/law-library/cases/9718446 ## Case - **Full name:** Butcher v. Bloom - **Court:** Supreme Court of Pennsylvania - **Decided:** September 29, 1964 - **Citations:** 415 Pa. 438; 203 A.2d 556; 1964 Pa. LEXIS 469 - **Precedential status:** Published - **Opinion:** Concurrence by Bell - **Judges:** Bell, Jones, Cohen, Eagen, O'Brien, Roberts - **Cited by:** 55 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9718446 ## Opinion text Concurring Opinion by Mr. Chief Justice Bell: I join in the very able Opinion which Justice Roberts has written for the Court. However, I am im *469 pelled to express additional views in the faint hope that one or more Justices of the Supreme Court of the United States may thereby be induced to change or modify their viewpoint on the subject of Reapportionment. I shall first discuss the question of Constitutionality and then the point which I believe the Supreme Court of the United States has overlooked — namely, the deprivation and dilution of the voice, the vote and the representation of minority groups as a result of that Court’s recent reapportionment decisions. The new concept of reapportionment and the justiciability by Courts of questions of congressional and legislative redistricting, commenced with Baker v. Carr, 369 U.S. 186 , which held that State apportionment and reapportionment presented a justiciable question. The limited effect of Baker v. Carr was pointed out by Chief Justice Warren in Reynolds v. Sims, 377 U.S. 533 , 556: “In Baker ... We intimated no view as to the proper constitutional standards for evaluating the validity of a state legislative apportionment scheme.” The appealing slogan which is now so often relied upon, namely, “One person, one vote”, was first enunciated in Gray v. Sanders, 372 U.S. 368, 381 , and reiterated in Reynolds v. Sims, supra, page 558. This slogan is susceptible of so many different meanings that it is in reality meaningless. Every person who is qualified to vote is entitled, of course, to one vote and one vote only; but in scores of different matters, in business, in public affairs, in Government, in Senatorial and in Presidential elections and in practical life, the result is often not based or decided solely on arithmetic, and the vote of one person is sometimes more important and weightier than the votes of many or of all those opposed. No contention of “dilution” can alter these practicalities of life. In Reynolds v. Sims and in the five accompanying decisions of the Supreme Court of the United States *470 construing the Equal Protection Clause of the 14th Amendment * to the Constitution of the United States, the Court clarified and expanded what it meant by “one person, one vote”. It held, inter alia, that in a bicameral Legislature each House must be apportioned or districted (1) substantially in accordance with population; and (2) (a) without invidious apportionment, or (b) dilution of the vote of citizens living in one part of the State or in one district or political unit of the State, as compared with others. Furthermore, Reynolds v. Sims, supra; and Maryland Committee v. Tawes, 377 U.S. 656 , 84 S. Ct. 1442 ; and Gray v. Sanders, 372 U.S. 368, 381 ; and WMCA, Inc. v. Lomenzo, 377 U.S. 633 , 84 S. Ct. 1418 ; decided, in effect, that it was Unconstitutional for the people of a State or for a State Legislature to allot one Representative or one Senator to each of the Counties or political divisions in that State, even though additional Representatives or Senators were allotted to the more populous Counties or political divisions. The Court also rejected any analogy to the Electoral College or to the Congress of the United States — in the latter, the Constitution allots (as everyone knows) two Senators to each State and at least one Representative to each State regardless of population. It is with a heavy heart, therefore, that I am compelled, by the recent decisions of the Supreme Court of the United States, to hold that certain parts of Section 16 and Section 17 of Article II of the (nearly) century old Constitution of Pennsylvania are Unconstitutional. Under the form and kind of Government established by our Constitution, Pennsylvania has grown prosperous and great, and our people, with rare exceptions, have been satisfied, happy and proud to have such a Republican form of Government. *471 It can be accurately said that no decision of the Supreme Court of the United States in the last hundred years has ever disturbed, dismayed and confused Congressmen, Legislators, Governors, Judges, lawyers and ordinary citizens as has the novel and revolutionary decision in the Reynolds group of cases. The form and scheme of Government of the United States which at various times has been the admiration of the civilized world, was created and based upon the foundation rock of three separate, independent, yet intertwined, coordinate co-equal branches of Government, with its inherent fundamental concept of checks and balances. Under the Constitution of the United States (1) The Executive branch administers our Government and “takes care that the laws be faithfully executed”. (2) The Legislative branch, including the Congress (and the Legislature of each State) are solely vested with the legislative power, namely, the power to enact laws and legislation. (3) The third branch, namely, the Courts, are vested with the power and duty to interpret the Constitution and the laws — not to execute or enact or revise the laws or the Constitution, beneficial as that would sometimes be. This, our revered system of Government, * with its basic fundamentals of checks and balances, has been radically changed by the recent decisions of the Supreme Court which, under the guise of interpretation (and in the belief that their actions and decisions are in the best interest of our Country), have amended and rewritten the Constitution of the United States and invalidated the Constitutions of most of the States of the Union. The Supreme Court has, in effect, declared Unconstitutional and invalidated and outlawed the present allocation of Congressmen, Representatives, and State Senators in nearly every State in the Union — espe *472 cially those States which have a bicameral government, or base their allocations of Congressmen, Representatives and State Senators on a County or similar political unit basis. Under no provision of the Constitution of the United States nor of the Constitution of Pennsylvania is the Supreme Court of the United States a super Congress or a super Legislature, nor is it given the right or power to amend or rewrite the Constitution of the United States or the Constitution of Pennsylvania. That right and power is, without the slightest doubt, reserved to the people of the United States, or to Congress, or to the States. Notwithstanding a little lip service as to the right of a State Legislature to divide a State into different districts for the Senate and the House and also for different terms — provided there is no invidious or unfair districting and no dilution of votes — the Court completely disregards and discards history, tradition, geography, local interests and local problems, differences in dialects and language, in customs, in ideas and ideals in each State and also in many parts of each State. In lieu and in derogation thereof, the Court requires Congressmen and Representatives and State Senators to be districted and selected solely on an arithmetical population basis, i.e., substantially equal in each political district or political division. One of the tragic results which we believe has been overlooked by that Court’s majority is that this newly devised form of representative Government will almost inevitably deprive minority groups of a fair and effective representation in legislative halls of their principles, customs, traditions, their particular problems and desired solutions, and the preservation of their cherished way of life. Their interests will not only be diluted, they will be in practical effect, frequently completely ignored. This is so far removed and so different from what the people in each State of the United States have be *473 lieved in and cherished and on which they have for a century or more based their Government and their, way of life, that in the words of Justice Harlan this brand new interpretation of the Equal Protection Clause finds no support and no home in the Constitution of the United States * and is “incredible”. Surely, the unjust and unjustifiable legislative apportionments, as well as the political gerrymandering in certain States or in certain political divisions of a State, can be declared Unconstitutional and prohibited without this wholesale destruction of the age-old just and cherished form of Government which has prevailed in nearly every State in the Union. With due respect, isn’t the Court’s cure worse than the disease? My views and my fears are not imaginary. They are supported by public expressions in Congress, in State Legislatures, in the press and news media throughout our Country, and most importantly, by Justices of the Supreme Court of the United States. For example: In Baker v. Carr, 369 U.S. 186, 267 , Justice Frankfurter in his dissenting Opinion characterized the Court’s decision (on the subject of reapportionment) as “. . . a massive repudiation of the experience of our whole past in asserting destructively novel judicial power . . .” In Reynolds v. Sims, 377 U.S., supra, Justice Harlan, in his dissenting Opinion, said (pages 607, 614-615, 625) : “It is incredible ** that Congress would have exacted ratification of the Fourteenth Amendment as *474 the price of readmission, would have studied the State Constitutions for compliance with the Amendment, and would then have disregarded violations of it. “. . . today’s decisions are refuted by the language of the Amendment which they construe and by the inference fairly to be drawn from subsequently enacted Amendments. They are unequivocally refuted by history and by consistent theory and practice from the time of the adoption of the Fourteenth Amendment until today. “. . . The consequence of today’s decision is that in all but the handful of States which may already satisfy the new requirements the local District Court or, it may be, the state courts, are given blanket authority and the constitutional duty to supervise apportionment of the State Legislatures. It is difficult to imagine a more intolerable and inappropriate interference by the judiciary with the independent legislatures of the States. “. . . For when, in the name of constitutional interpretation, the Court adds something to the Constitution [ * ] that was deliberately excluded from it, the Court in reality substitutes its view of what should be so for the amending process.” In Lucas v. Colorado General Assembly, 377 U.S. 713 , 84 S. Ct. 1472 and WMCA, Inc. v. Lomenzo, supra, Justice Stewart, joined by Justice Clark, termed the majority reapportionment decision “woefully wrong” and further said (pages 1429-1431) : “To put the matter plainly, there is nothing in all the history of this Court’s decisions which supports this constitutional rule. The Court’s draconian pronouncement, which makes unconstitutional the legislatures of most of the 50 States, finds no support in the words of the Constitution, in any prior decision of this Court, or in *475 the 115-year political history of our Federal Union. With all respect, I am convinced these decisions mark a long step backward into that unhappy era when a majority of the members of this Court were thought by many to have convinced themselves and each other that the demands of the Constitution were to be measured not by what it says, but by their own notions of wise political theory. The rule announced today is at odds with long-established principles of constitutional adjudication under the Equal Protection Clause, and it stifles values of local individuality and initiative vital to the character of the Federal Union which it was the genius of our Constitution to create. “. . . Instead, the Court says that the requirements of the Equal Protection Clause can be met in any State only by the uncritical, simplistic, and heavy-handed application of sixth-grade arithmetic.” In Wesberry v. Sanders, 376 U.S. 1 , Justice Harlan, dissenting, said (pages 20-22, 42, 48) : “I had not expected to witness the day when the Supreme Court of the United States would render a decision which casts grave doubt on the constitutionality of the composition of the House of Representatives. It is not an exaggeration to say that such is the effect of today’s decision. The Court’s holding that the Constitution requires States to select Representatives either by elections at large or by elections in districts composed ‘as nearly as is practicable’ of equal population places in jeopardy the seats of almost all the members of the present House of Representatives. “. . . Thus, today’s decision impugns the validity of the election of 398 Representatives from 37 States, leaving a ‘constitutional’ House of 37 members now sitting. “Only a demonstration which could not be avoided would justify this Court in rendering a decision the effect of which, inescapably as I see it, is to declare constitutionally defective the very composition of a co *476 ordinate branch of the Federal Government. The Court’s opinion not only fails to make such a demonstration. It is unsound logically on its face and demonstrably unsound historically. “. . . The constitutional right which the Court creates is manufactured out of whole cloth. “. . . The claim for judicial relief in this case strikes at one of the fundamental doctrines of our system of government, the separation of powers. In upholding that claim, the Court attempts to effect reforms in a field which the Constitution, as plainly as can be, has committed exclusively to the political process. “This Court, no less than all other branches of the Government, is bound by the Constitution .... The stability of this institution ultimately depends not only upon its being alert to keep the other branches of government within constitutional bounds but equally upon recognition of the limitations on the Court’s own functions in the constitutional system.” Cf. also, Justice Black’s dissenting Opinion in Jackson v. Denno, 378 U.S. 368 , 12 L. Ed. 2d 908 , where he said (page 934) : “I think that the New York law here held invalid is in full accord with all the guarantees of the federal Constitution and that it should not be held invalid by this Court because of a belief that the Court can improve on the Constitu tion.” See also, Justice Clark’s dissenting Opinion in Fay v. Noia, 372 U.S. 391 , where he said (page 445) : “. . . But the Court today in releasing Noia makes an ‘abrupt break’ not only with the Constitution and the statute but also with its past decisions, disrupting the delicate balance of federalism so foremost in the minds of the Founding Fathers and so uniquely important in the field of law enforcement.” Justice Frankfurter, in his Concurring Opinion in Green v. United States, 356 U.S. 165, 193 (1958), said (page 193): *477 “The admonition of Mr. Justice Brandéis that we are not a third branch of the Legislature should never be disregarded.” Justice Jackson prophetically foresaw what has now actually happened in the Supreme Court when, in a Concurring Opinion in Brown v. Allen, 344 U.S. 443 (1953), he said (page 535): “Whatever has been intended, this Court also has generated an impression in much of the judiciary that regard for precedents and authorities is obsolete, that words no longer mean what they have always meant to the profession, that the law knows no fixed principles.” Compare also, Justice Stewart's dissenting Opinion in Escobedo v. Illinois, 378 U.S. 478 , 12 L. Ed. 2d 977 , where he said (page 988) that the majority decision was “Supported by no stronger authority than its own rhetoric”; and that “the Court perverts those precious constitutional guarantees.” To summarize: Section 16 and Section 17 of Article II of the Constitution of Pennsylvania and the Act of January 9, 1964, No. 1, P. L. (1S63) 1419, 25 PS §2221 (Supp. 1963), are Unconstitutional. The creation of Senatorial and Legislative Districts * is a matter for the Legislature and not for the Courts. The number, composition and experience of the Legislature in this field is far greater than that of the Courts, which are not only devoid of “apportionment powers” but have far fewer facilities and far less resources and are far less qualified than a Legislature. I would require the Legislature of Pennsylvania to enact a Constitutionally valid plan of reapportionment as soon as practical, but not later than September 1, 1965. The new Reapportionment Act should provide substantially as follows: “The State shall be divided *478 into fifty senatorial districts of compact and contiguous territory as nearly equal in population as is practicable and each district shall be entitled to elect one Senator, who shall serve for a period of four years. No County or political subdivision shall be divided in the formation of a district unless the practicalities compel such division. “The House of Representatives shall be elected for a period of two years. For purposes of representation in the House of Representatives, the State shall be divided into legislative districts of compact and contiguous territory and the number of representatives in each district shall be determined on as nearly as is practicable an equal ratio of population basis. Except when entitled to more than one representative, no County shall be divided in the formation of a district unless the practicalities compel such division.” The foregoing requirements are necessarily subject to any change or modification or clarification of the views or mandates of the Supreme Court of the United States. In the meantime, this Court should retain jurisdietion of the subject matter of apportionment and reapportionment. * and incidentally tlie race and color provisions of the 15th Amendment. Contrary to superficial thinkers and commentators and slogan-creators, our Country, under Article IV, Section 4, of the United States Constitution, has a “Republican [not democratic] Form of Government”, with a democratic way of life. If the Supreme Court (majority) were logical, would they not have to hold that nearly every law passed and nearly every appropriation made in the last hundred years by an uneonstitutionaUy created and unconstitutionally elected Congress and by an unconstitutionally created and elected State Legislature, are Unconstitutional and void? And how in logic can an Unconstitutional Congress or an Unconstitutional State Legislature statutorily provide for valid and Constitutional elections? Italics throughout, ours. We may add “or subtracts something from the Constitution.” and Congressional Districts, under Article I, Section 4, of the Constitution of the United States, and by virtue of authority from Congress, As Chief Justice Warren said in Maryland Committee v. Tawes, 377 U.S., supra, at page 674: “We applaud the willingness of state courts to assume jurisdiction and render decision in cases involving challenges to state legislative apportionment schemes. However, in determining the validity of a State’s apportionment plan, the same federal constitutional standards are applicable whether the matter is litigated in a federal or a state court.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9718446. Public record. Not legal advice.