Reviewed by Paul Milazzo
Published on H-NC (November, 2008)
Commissioned by Judkin J. Browning (Appalachian State University)
A Shrewd Country Lawyer's 'Soft Southern Strategy'
No self-confessed conservative has ever endeared himself to liberals quite like senator Sam Ervin of North Carolina. Ervin dedicated the better part of his political career to forestalling the civil rights revolution in the South. He also opposed the Democratic Party’s social welfare agenda, decried the Warren and Burger Court’s activism, battled organized labor, and served as the congressional point man in the fight against the equal rights amendment (ERA). Yet when Ervin quit the political stage in 1975, just a decade after having logged more hours filibustering civil rights legislation than any other senator from Dixie, the media feted him as a civil libertarian whose constitutional acumen had helped vanquish a corrupt and overreaching executive branch.
It falls to Karl E. Campbell to reconcile Ervin’s conflicting legacy. Campbell begins with the obvious fact that the Watergate scandal made a household name of Sam Ervin. Millions tuned in daily to watch his 1973 Select Committee on Presidential Campaign Activities dissect the sordid affairs of bumbling political burglars and their White House enablers. In contrast to the Machiavellian exploits of the president’s men, the media cast their congressional adversary as a simple, country lawyer spouting homespun wisdom and constitutional common sense--precisely the image the savvy Harvard-trained attorney sought to cultivate.
Campbell traces this winning combination of “corn pone and con law” back to Morganton, a court town on the Western Piedmont of North Carolina where Ervin was born and raised. The son of a prominent attorney, Ervin imbibed the unique legal culture of a mountain community undergoing the rapid economic transformation common to much of the New South. By the time he graduated from UNC-Chapel Hill in 1917, a career in law was all but a foregone conclusion.
Ervin’s harrowing combat experience in the First World War unnerved him, however, and at his mother’s suggestion he delayed joining his father’s practice, embracing the change of venue that Harvard Law School offered. Harvard’s professors reinforced a conservative constitutional philosophy and libertarian gloss on civil liberties that meshed well with the lessons of Southern history articulated by his father, grandfather, and teachers at Chapel Hill. In the three decades following his graduation, Ervin developed a reputation as one of North Carolina’s most gifted attorneys, known for his wit, colorful oratory, and talent for argumentation. When the local Democratic Party nominated him for the state legislature, Ervin complied as a matter of duty, but had little stomach for politics. He preferred life on the bench: as a criminal court judge, superior court judge, and following a brief stint in the House of Representatives to fill the seat of his brother Joe, who had committed suicide, a justice of the state supreme court (1948-54). There he might happily have remained, had fate not intervened in the form of a fatal stroke suffered by senior North Carolina senator Clyde R. Hoey. At the governor’s urging, Ervin reluctantly filled a seat he would not relinquish for twenty-one years.
Ervin’s first year in the Senate coincided with the end of Joseph McCarthy’s reign and the beginning of the civil rights movement as heralded by the Brown decision. Campbell casts Ervin’s career as a corrective to historical accounts portraying massive resistance as the exclusive face of Southern defiance. “We underestimate the complexity of the South’s response to the Second Reconstruction,” he asserts, “and overlook the intricacies of southern racist thought, when we portray all opponents of civil rights as ignorant and irrational demagogues” (p. 110). Just as North Carolina’s judges and bureaucrats frustrated school integration through subtle administrative evasion, its junior senator eschewed the racial demagoguery of Strom Thurmond or James Eastland for sophisticated legal reasoning wrapped in folksy rhetoric. Ervin was not a powerbroker like Georgia’s Richard Russell, but in a postwar political climate receptive to black civil rights, his “soft Southern strategy” proved more effective than vulgar race-baiting at blocking legislation in the Senate and raising doubts about the legitimacy of judicially mandated school desegregation. It was Ervin who urged his colleagues to soften the language of the Southern Manifesto; who shielded recalcitrant southern election officials from sanction by inserting the jury trial mechanism into the 1957 civil rights bill, an appeal to constitutional rights so shrewd even Hubert Humphrey and the ACLU found it persuasive; and who raised Fifth Amendment due process objections to dilute the 1960 Civil Rights Act.
Campbell makes clear that Ervin’s constitutional philosophy derived from his faith in federalism, trust in the separation of powers, and suspicion of distant government, but that the imperative to defend Jim Crow propped up the entire edifice. Ervin, like other elite white North Carolinians, maintained what William Chafe called the “progressive mystique,” a combination of racism, civility, and paternalism that recognized the civic duty of Christian gentlemen to care for dependents but deflected any efforts to challenge the prevailing social order. Ervin condemned racial violence, defended black clients vigorously, and funded segregated schools, but when he spoke of protecting the Constitution, he really meant “preserving the Southern status quo” of white supremacy, social hierarchy, low wages, and anti-unionism. Indeed, Ervin’s track record in the 50s belies his reputation as an inveterate civil libertarian, as he “resisted ... justices’ attempts to guarantee the constitutional rights of African Americans, alleged communists, producers of controversial literature, and criminal suspects [and] also failed to initiate or support any legislative protections for these unpopular groups” (p. 169). Nor were his constitutional arguments necessarily consistent; Ervin based his objections to the 1968 Civil Rights Act on the interstate commerce clause, even though five years earlier he had denied its applicability to similar legislation in a Judiciary Committee confrontation with attorney general Robert Kennedy. By the time he and Kennedy matched wits in 1963, however, Ervin’s abstract legal arguments had lost the moral high ground to an indigenous grassroots movement and liberal lawmakers of both parties who would soon consummate a civil rights revolution.
Sam Ervin never developed an enthusiasm for black civil rights, but his legal philosophy did evolve. After 1965 he quietly accepted the legitimacy of the Brown decision. And he embraced the idea of a color-blind constitution around the same time that liberals did him the favor of abandoning it in favor of unpopular race-conscious remedies like affirmative action and busing. Suddenly, his call to check the growth of government to protect individual freedom resonated with a large new constituency of Americans apart from atavistic southern bigots. Here Campbell would have been well served to connect his story with the literature on color-blind ideology, suburban politics, and the southern conservative realignment developed by Matthew Lassiter, Kevin Kruse, and Joseph Crespino.
Campbell does not talk explicitly about the institutional structure and incentives of the post-World War II Senate, but even before Ervin took charge of the Government Operations Committee in 1972, his career had benefited from the proliferation of subcommittees. When he assumed the chair of the Judiciary Committee’s Subcommittee on Constitutional Rights, he inherited an explicit civil liberties agenda and aggressive staff (about whom, unfortunately, we learn little) that led him to pursue new protections for the mentally ill, members of the armed forces, and Native Americans, not to mention landmark legislation like the 1966 Bail Reform Act and the 1964 Criminal Justice Act, which guaranteed poor criminal defendants access to legal counsel. Campbell also details Ervin’s interest in the right to privacy, embodied in legislation like his Government Employees Bill of Rights. Ervin was motivated by a Brandeisian belief that the federal government ought to leave citizens alone, particularly if it sought to collect racial information for the purposes of social engineering. Of course, Brandeis’s classic 1890 article on the right to privacy was far removed from Griswold, Eisenstadt, and Roe. Campbell leaves unmentioned Ervin’s thoughts on this line of privacy jurisprudence, but given his animus toward the Supreme Court’s judicial activism, they would not be difficult to fathom. The Court’s landmark decisions expanding the rights of the accused angered him and led him to support tough anti-crime legislation, despite his putative concerns for civil liberties.
Again, Ervin’s views on limited government, federalism, and the separation of powers informed his actions. He blanched at federal wire-tapping, for example, but had no problem expanding the states’ powers to do so. Likewise, Ervin’s frequent complaints about the usurpation of legislative authority during the civil rights debates of the 50s and 60s gained an institutional foothold with his chairmanship of the Judiciary Committee’s Subcommittee on the Separation of Powers. He cast his later opposition to the Warren Court, the ERA, executive enforcement of school desegregation, and the Philadelphia Plan through this constitutional lens.
While Campbell has little new to add to the Watergate saga itself, he places Nixon’s run-in with Ervin in precisely this broader context. Although Ervin voted with the president’s policy positions over 60 percent of the time during his first term, they soon butted heads on numerous issues--the Washington, DC crime bill’s no-knock warrants and preventative detention, the pocket veto, impoundment, executive privilege, army surveillance of civilian political activities, government data banks--that ran afoul of the senator’s position on limited government, constitutional rights, privacy, and the separation of powers. Indeed, Watergate stands as the granddaddy separation of powers conflict of them all. Ervin timed his dust-up with the imperial presidency well; Nixon served as the nemesis that brought his career’s work into focus, winning him an array of admirers on the left, including the media.
Karl Campbell has written a useful, well-researched biography of interest to historians of politics, Congress, and the South. It would have been worthwhile if he had addressed where Ervin falls within the recent historiography of American conservatism. In some ways, Ervin’s Senate colleague, Jesse Helms, the subject of William Link’s recent biography, Righteous Warrior (2008), seems more representative of secular trends: his membership in the Republican Party, emphasis on cultural issues, career into the 80s and 90s, and participation in the more rancorous politics of that era. It would also have been useful to compare how other Southern Democrats with an interest in crime, like Arkansas’s John McClellan, reconciled their state-building activities and defense of local autonomy. The book’s only real head-scratcher comes when the author has Ervin interpret Oliver Wendell Holmes’s dictum that “The life of the law has not been logic; it has been experience,” as a credo of legal formalism (p. 47). It was nothing of the kind. Did Ervin really not know this? Did the author? Campbell’s well-executed book makes the case for his subject’s relevance and competence too effectively to believe either alternative.
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Paul Milazzo. Review of Campbell, Karl E., Senator Sam Ervin, Last of the Founding Fathers.
H-NC, H-Net Reviews.
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