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."
When in the spring of 1973 Ervin was enlisted as chairman of the Senate select committee on presidential campaign practices, soon universally known as the Watergate committee, Nixon's White House henchmen breathed a sigh of relief. They thought they were up against a blowhard partisan fuddy-duddy. They were wrong in all respects. Ervin was not a partisan figure, but we know now that he didn't buy the White House line that Nixon himself was uninvolved in the criminal follies. "It has been my experience," Ervin observed privately, "that the madam of a whorehouse is very seldom a virgin."
John Ehrlichman, the powerful and cocky White House counselor, felt the edge of Ervin's wit when he challenged the senator one day over "inherent" presidential powers. "How do you know that, Mr. Chairman?" Ehrlichman demanded, aggressively jutting his chin. "Because," came the response, "I can understand the English language. It is my mother tongue." There was a moment of stunned silence in the Senate caucus room, then an uproar of laughter and applause. It was high political theater, and a transformative moment.
Professor Campbell argues, correctly I believe, that Ervin's labors as chairman of two important Senate subcommittees--on constitutional rights and on the separation of powers--were a rehearsal for the Watergate moment. Issues of executive overreach had festered and Ervin's hearings on personal privacy (notably the Army's irregular surveillance of private citizens) and the dodgy use of impoundment as an ideological weapon became the groundwork for a significant counterattack.
That counterforce has faltered, of late, for want of any legislator of comparable stature and learning to sustain it. In any case, the executive excesses of the 1960s and '70s set the stage for a whiggish reaction, and Sam Ervin was nothing if not a small-w whig, a determined apostle of legislative supremacy. Someone called him "solicitor general for the legislative branch." He was that, exactly.
What was too little appreciated in his hour of fame was that Ervin's libertarianism had a long, colorful history. As a young state legislator in 1925 he had played a key role in sparing North Carolina the embarrassment of an anti-evolution "monkey law." His comment on the Poole Bill (as the Tar Heel variant was called) was that it "absolved the monkeys" of responsibility for human mischief.
As an observer of the Sam Ervin saga from the perspective of North Carolina newspaper offices over almost two decades, I learned that when one differed with him (for instance, over civil rights bills), his views, however retrograde in appearance, were never mean, capricious, or irrational. If you objected to them you could count on a friendly, measured letter to the editor in response.
Sam Ervin, Last of the Founding Fathers is a scholarly and readable book, and a plausible reading of this protean, colorful, and monumental figure. But a significant flaw must be noted. The author has adopted the theory that, as an exemplar of North Carolina civility, Sam Ervin was erecting a façade, prompted less by conviction than by the urge to preserve the state's reputation for moderacy.
There is something in this, as in all academic theories. But at bottom the theory is patronizing and misleading. It trivializes the give-and-take of political conflict as, in essence, an exercise in the higher public relations. The theory becomes a leitmotif in this book, constantly reiterated; and the footnotes confirm that the author has contracted this condescending illusion from a celebrated book by Prof. William Chafe about the Greensboro response to the challenges of the civil rights era: Civility and Civil Rights. Chafe is an able and diligent historian, but this now-canonical interpretation of the Greensboro example (and inferences from it regarding North Carolina as a whole) misconceives a civic ethos, and consequently that of Sam Ervin Jr. himself.
Whatever one thought of his causes, he played the great game of politics earnestly, and for keeps.
Edwin M. Yoder Jr., an editor and columnist in North Carolina and Washington for almost half-a-century, is the author, most recently, of a novel, Lions at Lamb House, about Sigmund Freud and Henry James.