.NzQ0Ng.NzQ0Ng

Jle ugty" Chicago, J uly 26, 1963. Striking at Bias 1til ,v i- Varied Powers of Congress to of . En force CivH Ri ghts Cited a's ~u- I T he writer of the f ollowin g i~ lild H a~iilton F i.sh Prof es_ s or of Inter mt nat i onal L aw and D i plomacy and lOt Pr of essor of L aw, Columbia Un iver - l l's sity. er ?Y T o THE EDITOR OF Tm: NEW YORK T IMES : So much of the discussion of the proposed civil r ights legislation ap[Y pears to ask which is the proper is . constitutio·nal provision to be int- canted in suppor t of legislation out·r lawing discrimination. Surely, the question is rather in what respects ra cial discrimination is properly the is concern of Congress under the Constitution. The concerns and powers r of Congress, moreover, are cumulative, not alternative. A deter mined Congress could strike at important segments of racial ·discrimination with ·the far reaches of its defeni,e powers (for _ example, discrimination which hame pers the defense ·effor t ) ; its for eign affairs power (for example, .discrimr ination which affects our foreign reO la.tions, at least discrimination s against diplomats) ; its spending d power (fo r example, discriminat ion a by bodies or agencies which receive Federal funds) . There are also the powers of Congress t hat have been discussed. Of course, Congress can outlaw discrimination in interstate commerce, or which affects interstate com· merce. Publlo- Authority's Complicity Congress can, in addition, pursuant to the 14th Amendment, strike a t discrimination for which the state is r esponsible, and at the widespread complicity of public authority in private discrim ination. It may be possible to · draft a provision outlawing discrimination for which the state is reiiponsible, perhaps even leavi~g It t o t he courts to determine later where the 8t ate may properly be 1 held responsible. Congress could also forbid state and local officials to r equire, proe mote, encourage or enforce racial discrimination. In r egard to places of public accommodation, I am confident that s the Supreme Court would uphold an act of Congress which forbids local B judges and local police t o enforce ' discrimination , for example, through s trespass prosecut ions. These prohibi- tions on the acts of local offi cials could be enf orced by criminal pens alty, by injunction, by suits for monf etary damages. It is not either one power of Congress or another, nor a matter of in- canting several. The various powers of Congress can support various prof visions adding up to an effective civil rights act. Lours HENKIN. New York, July 2ti, 1963. a- i ~ a .. h i �