Tar Heel Statesman
The Constitution did well by Sam Ervin, and vice versa.
Mar 3, 2008, Vol. 13, No. 24 • By EDWIN M. YODER JR.
Senator Sam Ervin, Last of the Founding Fathers
My native state of North Carolina has too seldom given a good account of itself in national politics. But with the 1954 appointment of a little-known jurist to the unexpired Senate term of Clyde R. Hoey, it hit the jackpot. Like Shakespeare's Cleopatra, Sam J. Ervin Jr. was a figure of infinite variety, seldom stale, as amusing as serious, as scholarly as witty.
As a former state Supreme Court
This was the first act in a quarter-century political show that made me a Sam Ervin addict. The McCarthy censure work bracketed at one end a Senate career that ended with nice symmetry two decades later in his chairmanship of the Watergate committee. Few Americans who were alive and alert in 1973 can have forgotten the stranger-than-fiction phantasmagoria that was the beginning of the end of Richard Nixon's presidency. Throughout his two Senate decades, Ervin was an enigma to many who heard the words but not the music. Wasn't this constitutional purist, who fretted over personal privacy and esoteric separation-of-powers issues, also among the obstructive foes of all civil rights bills and most measures of social reform? What sense could the usual stereotypes make of that?
To a significant degree, the imagined puzzle lay not in the man or his views but in the shopworn media mindsets with which we struggle to confront political nonconformity. In truth, Sam Ervin was a revenant from vanished ages of American statecraft, when the Constitution mattered more and stereotypes less. Arthur M. Schlesinger Jr. once suggested that Ervin was a "tertium quid" redux, resembling those mavericks of the Federal period who consented to no party collar. Karl Campbell ventures a homelier analogy, "the last of the Founding Fathers," a label he traces to the columnist James J. Kilpatrick.
One imagines that the senator, who retired soon after the Watergate hearings that made him an icon and who died (at age 88) in 1985, would chuckle at the conceit and deflect the honor with a mountain story. But he probably also would be pleased. He approached constitutional issues with a literalism and zeal whose closest analogue is the more literate varieties of Biblical fundamentalism. He was an "originalist" before originalism was cool, and that explained his often fierce reaction to judge-made law: for instance, Supreme Court decisions such as Miranda and Mallory that expanded the procedural rights of accused criminals.
On the other hand, he supported as militantly those personal liberties explicitly guaranteed by the Bill of Rights: strict separation of church and state, due process, speedy trial, reasonable bailment, and the like. That creed made him a dogged foe of the Nixon administration's experiments with personal liberty in the District of Columbia, such as the "preventive detention" of accused criminals. One day in a subcommittee hearing on the District crime bill, he admonished Attorney General John Mitchell, Nixon's advance man, that it was hard enough to establish what happened in the past, let alone to predict the future.
If one grasped this essential distinction between the provisions of the Bill of Rights, and their occasionally fanciful expansion by judges, it was rarely difficult to guess where Ervin would come down. His closest look-alike in these matters was Justice Hugo Black, who in his latter years on the Supreme Court carried a tattered copy of the Constitution in his pocket and issued such delphic pronouncements as "no law [in the First Amendment's prefatory clause] means no law."