Three Harvard professors gave strong support yesterday to the Kennedy Administration's decision to base the "equal accommodations" provision in its civil rights bill on the federal government's constitutional power to regulate inter-state commerce.
Arthur Sutherland, Bussey Professor of Law, said "every conceivable constitutional power" of the federal government should be utilized in formulating an effective piece of legislation. But he was in general agreement with Mark A. DeWolf Howe '23, professor of Law, and Robert G. MeCloskey, professor of Government, who clearly favored employing the commerce clause over the 14th Amendment.
Sen. John Sherman Cooper (R-Ky.) and others have opposed the Administration's bill and suggested using the 14th Amendment, which guarantees "equal protection" of the law from state action.
As presented to Congress June 20, the Administration's bill contains a number of important provisions. Most of the controversy since then has centered around the proposal that all privately owned public accomodations (restaurants, hotels, theaters, etc.) which are "substantially" involved in interstate commerce would not be allowed to discriminate on racial grounds.
Prof. Howe said that because the 14th Amendment refers specifically to state action, a bill based on its "equal protection" clause would not encompass many instances of discrimination which have nothing to do with state involvement. More importantly, he said, Southern states would be given a chance under such a bill for extended obstructionism. "It is foolish to give them (the Southern states) the opportunity for further delay," Howe declared.
Prof. McCloskey echoed Howe's position, and said he "questioned the sincerity" of those who seek a civil rights bill based on the 14th Amendment. McCloskey was particularly adamant is upholding the constitutional validity of employing the commerce clause, and predicted that any such bill reaching the Supreme Court would be upheld 9-0.
Prof. Sutherland noted that "the great discovery of the New Deal was the elasticity of the commerce clause," and said