EVERYONE remembers Sam Ervin from the Watergate days, with warmth or with a burn, depending on one's view of that episode. Much was written about Ervin in the aftermath of Watergate. This book is the Sam Ervin story as he obviously wants it written. While it includes what must be some set pieces, and one senses he has said some of these things before, the inside story is all here for one who wants the flavor of this man and his views about the engaging issues which have marked his life.
Sam Ervin lived through and participated in an extraordinary number of the high moments of the 20th century, not only the Watergate days. He was a decorated war veteran, a state supreme court justice in North Carolina, a congressman, a senator for three terms, a vocal member of the Senate committee which called for the censure of Joseph McCarthy, the Senate leader of the fight to filibuster to death the civil rights legislation of the 1960s, and a champion of many civil liberties issues. An especially interesting man with a keen sense of his place and purpose, Ervin is a public figure who has a coherent, though often unpredictable, view of the Constitution as the seminal document of our government.
In Preserving the Constitution, Ervin describes the events, people, and issues that defined his life. In this book, as in his demeanor, Ervin is courtly, corny, and quotey. He refers to his wife as Miss Margaret, reveres his father, quotes the Bible and poetry to make his points, and talks passionately about the Constitution, which he still studies.
Ervin is a literalist. He feels that in most instances the words of the Constitution are clear and that judges should simply apply the document as it reads. Only where it is ambiguous should they go beyond the words of the document itself, and then it is to the intention of the Founding Fathers who wrote it that they should look. If the Constitution is to be amended, he argues, there is a procedure spelled out in the document itself for doing so: it should be done through the amending provision of Article V and not via judicial activism predicated upon the social views of judges.
For this reason, Ervin favors the exclusionary rule, the judge-created doctrine that precludes using evidence which was obtained by an illegal search or seizure, even if the evidence is credible and the crime despicable. Otherwise, Ervin argues, the words of the Fourth Amendment (that the right of the people to be secure against unreasonable searches and seizures "shall not be violated") would be merely a "pious hope" and the amendment's guarantee a "solemn mockery." When asked his view of critics who argue that this interpretation protects criminals and endangers society, he replies that "the Constitution protects all people equally like rain falling from the sky."
But, for the same reason, Ervin calls the Miranda ruling (requiring police to advise suspects that they need not talk, may have an attorney, and that their statements may be used as evidence against them) an abomination of judicial activism. Ervin notes that the Fifth Amendment says only that a person may not be "compelled in any criminal case to be a witness against himself." Thus, he argues, that clause protects defendants only against testimonial incrimination; it has nothing to do with custodial interrogation. H
OW DOES he rationalize these diverse civil liberties interpretations? Is he for the cops or the robbers? The Constitution must be upheld, he says,
when it pinches as well as when it comforts.
In Eighth Amendment questions, Ervin also does not follow an ideological party line. He favors bail reform, opposes preventive detention, and favors capital punishment. Because the Constitution itself mentions capital punishment (the Fifth Amendment speaks of procedures governing "capital" crimes) and because the practice was condoned generally at the time of the adoption of the Constitution, Ervin argues, how can we now say it is unconstitutional? Judges must put aside their predilections and follow the words of the Constitution.
In the case of bail, the Eighth Amendment requires that "excessive bail shall not be required." Thus, if a defendant is detained between arrest and trial because he is too poor to afford even modest bail, the Eighth Amendment is violated. However, preventive detention is not provided for specifically in the Constitution. In fact, it is inferentially forbidden by the due process of law and trial by jury provisions of the Fifth and Sixth Amendments; hence, prevene detention is unconstitutional.
Where many people who admire the Watergate Ervin and who applaud the civil liberties Ervin find the most fault is with his role as the constitutional brains for segregationists in the civil rights battles of the post-Brown era. Ervin's position is that since Brown (he agreed with the constitutionality of the separate but equal doctrine before that decision, but now accepts Brown as correct) forbids government choice based on race, all forms of affirmative action which discriminate against whites in favor of blacks are doctrinally unconstitutional. This is so even if the goals are desirable -- to reach parity or to correct historic discriminations. For this reason, Ervin is adamantly against quotas, busing, minority setoffs, and union preferences. He calls them civil wrongs, not civil rights -- unconstitutional social engineering.
But however one may disagree with Ervin on this sensitive issue, it is not out of mean-spiritedness that he reaches his positions, and certainly not for political reasons. In fact, Ervin never had a campaign manager or raised funds for campaigns in three Senate races; he even relayed unsolicited donations to other candidates. And this in the state where a record breaking $20 million was spent in its last Senate race. Furthermore, Ervin has been for gun control, against the politicking of the National Rifle Association, against prayer in schools, for teaching evolution in public schools (though he is a Bible-quoting and deeply religious man). These are not positions craven politicians from states like North Carolina follow for "political reasons." Nor was his outspoken criticism of Senator Joe McCarthy, his opposition to the House Un-American Activities Committee and the Senate Subversive Activities Control Board, or his early opposition to prohibition.
The man defies labels. He supported expanded constitutional rights for Native American but favored right to work laws. He is a square with a sense of humor, a historian with a vision of social policy, and a politician with a strong streak of independence. Let the issues fall where they may. Ervin makes up his mind after consulting the Constitution which he, at 88, still quotes with impressive accuracy and awe.
He has a perversity which makes him unpredictable. He writes that he went into World War I with a commission which he resigned because he felt he had acted dishonorably in one combat situation. Then he reenlisted as a private, went into battle and was wounded and decorated for bravery in combat. He took and passed the North Carolina bar after one semester at Chapel Hill; then he went to Harvard Law School, doing the third year's courses, the second year's next, then the first year's. While in school he was nominated to the state legislature without his knowledge; he replaced his brother in Congress when he died in office; he was appointed to the Senate to replace a deceased senator, just as he had been appointed to replace a retired state supreme court justice in North Carolina. Yet for a quarter century, he was virtually untouchable in Senate elections, and he retired after Watergate at the height of his national prominence and with no touch of scandal.
Preserving the Constitution is an interesting book about an interesting man's extraordinary life. It demonstrates that Sam Ervin is an authentic American item.