Karl E. Campbell. Senator Sam Ervin, Last of the Founding Fathers. Chapel Hill: University of North Carolina Press, 2007. xvii + 425 pp. $34.95 (cloth), ISBN 978-0-80783156-4.
Reviewed by Paul Milazzo
Published on H-NC (November, 2008)
Commissioned by Judkin J. Browning
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.
avellian 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.
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 Machi-
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
1
H-Net Reviews
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.
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 antiunionism. 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.
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.
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 raceconscious 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
Campbell makes clear that Ervin’s constitutional
philosophy derived from his faith in federalism, trust
in the separation of powers, and suspicion of distant
2
H-Net Reviews
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.
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 dustup 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
Again, Ervin’s views on limited government, federal- the Republican Party, emphasis on cultural issues, career
ism, and the separation of powers informed his actions. into the 80s and 90s, and participation in the more ranHe blanched at federal wire-tapping, for example, but had corous politics of that era. It would also have been useful
no problem expanding the states’ powers to do so. Like- to compare how other Southern Democrats with an interwise, Ervin’s frequent complaints about the usurpation est in crime, like Arkansas’s John McClellan, reconciled
of legislative authority during the civil rights debates of their state-building activities and defense of local autonthe 50s and 60s gained an institutional foothold with his omy. The book’s only real head-scratcher comes when
chairmanship of the Judiciary Committee’s Subcommit- the author has Ervin interpret Oliver Wendell Holmes’s
tee on the Separation of Powers. He cast his later oppo- dictum that “The life of the law has not been logic; it has
sition to the Warren Court, the ERA, executive enforce- been experience,” as a credo of legal formalism (p. 47).
ment of school desegregation, and the Philadelphia Plan It was nothing of the kind. Did Ervin really not know
through this constitutional lens.
this? Did the author? Campbell’s well-executed book
makes the case for his subject’s relevance and compeWhile Campbell has little new to add to the Watergate
tence too effectively to believe either alternative.
If there is additional discussion of this review, you may access it through the network, at:
https://networks.h-net.org/h-nc
Citation: Paul Milazzo. Review of Campbell, Karl E., Senator Sam Ervin, Last of the Founding Fathers. H-NC, H-Net
Reviews. November, 2008.
URL: http://www.h-net.org/reviews/showrev.php?id=22891
This work is licensed under a Creative Commons Attribution-NoncommercialNo Derivative Works 3.0 United States License.
3