University of North Carolina at Asheville

 

 

 

 

 

 

 

 

Attempting to Take Out the Garbage:

 

Senator Sam J. Ervin and the “Law and Order” Syndrome

 

 

 

 

 

 

 

 

A Senior Thesis Submitted to the Faculty of the

Department of History

in Candidacy for the

Degree of Bachelor of Arts in History

 

 

 

 

 

 

 

 

By 

Matthew R. Stone

 

 

 

 

 

 

 

 

Asheville, North Carolina

22 November 2005

 

            Years before a break-in at the Watergate Hotel that would later make him a household name, Senator Sam J. Ervin Jr., was confronting the Nixon Administration over a controversial piece of legislation that stemmed from the political rhetoric of the campaign of 1968.  Nixon had promised a return to order throughout the campaign, and his theme of “law and order” helped carry him to the White House.  With this in mind, the President and his Administration sent three bills, S. 2600, S. 2601, and S. 2637, to the Senate in 1969 with the aim of bringing law and order to the nation’s streets.  There was however a miscalculation, and that was the expected support of Senator Ervin. 

Sam Ervin would have been easy to peg as a “law and order” supporter. He was, after all, a former Justice of the North Carolina Supreme Court, an accomplished lawyer, and a conservative, but Ervin was also something else--an adamant civil libertarian.  After reading the many provisions of the legislation, which included preventive detention of suspected repeat offenders, the adult trial of juveniles, the expanded use of wiretapping, and authority for no-knock searches and seizures, Ervin became the most vocal critic of the Administration’s crime measures. The Justice Department, fearing that Ervin would bottle up the legislation in his Constitutional Rights Subcommittee, decided to bundle all three bills into one large crime bill which became known as the Omnibus District of Columbia Crime Bill.   By this time Ervin had already made up his mind that the provisions hidden in this legislation were too drastic to ever be allowed under the Constitution. He would go so far as too say on the Senate floor: “This is no longer a simple court reorganization bill. It is literally a garbage pail of some of the most repressive, near-sighted, intolerant, unfair and vindictive legislation that the Senate has ever presented.”[1] This seemed an odd position to take for a man who was at the time most famous for his role as a drafter of the infamous Southern Manifesto and his filibustering of civil rights legislation.  Here was the former filibustering Ervin, standing up for the citizens of the District of Columbia, the majority of whom were black, against an extremely politically profitable position.  While Ervin was unable to curb the tide of the “law and order” syndrome that had tempted America’s elected officials, his brave stand on the need to protect civil liberties, even in the face of popular crime control measures, proved that he was in fact committed to the very principle that he had always claimed was the foundation of his ideology--preserving the Constitution.

 

A Historiography of Senator Ervin Up to this Point and Time

While there have been varying interpretations as to why Senator Ervin was motivated to take the stands that he did, a consistent theme through all of them seems to be his strict interpretation of the Constitution with an emphasis on protecting civil liberties. Many of the biographers of Senator Ervin have tried to explain what his ideology was, and for the most part they have succeeded in bringing interesting portraits of this person to life.  Dick Dabney’s book, A Good Man: The Life of Sam J. Ervin, published in 1976, presented an image of Ervin as a product of the segregated South.  Dabney presented Ervin as a typical Southern conservative, especially on the issue of race relations.  Albert U. Romasco of New York University may have best described Dabney’s portrait of Ervin when in his review he wrote, “Ervin was the product--in simplified terms-- of the Protestant ethic, Anglo-Saxon superiority, the Court House clique, and that frame of thought which regards the United States Constitution as a fundamentalist political Bible.”[2]   Dabney, like all of Ervin’s biographers, portrayed him as a Constitutional scholar, but the emphasis of his work was focused principally on the issue of civil rights and Ervin’s opposition to them.  For Dabney the root of Ervin’s opposition lied not in the fact that he found civil rights legislation to be redundant, but rather a direct result of an ideology that was prevalent in the South and its institutions, a belief that government should be run by “good Christian gentlemen.”[3] Ervin considered the adoption of the Fourteenth and Fifteenth   Amendments to have been more then enough legislating on this issue.[4] For Dabney the phrase “Christian gentlemen” was synonymous with the idea of only Anglo-Saxon men. Dabney spent a good deal of his book describing how Ervin’s family and the institutions that he attended helped to shape this belief.  It would seem that such an attitude would have prevented him from opposing the D.C. Crime Bill. After all, it was a bill that was aimed at incarcerating criminals who for the most part did not fit into the category of Anglo-Saxon gentlemen.  Ervin was in fact quite disturbed by the image that Dabney had portrayed of him, so much so that he would directly refute the inconsistencies within the book in his own autobiography, and within the files of his public and private papers.[5]

 Dabney’s image, though, was not just the creation of an over active imagination; on the contrary, it was based on what more recently has become known as the traditionalist ideology of North Carolina politics.  As Albert Romasco wrote, “As a southern conservative, Ervin carefully tended his state’s interests, and he took a leadership position in the fight against the series of civil rights bills proposed in the 1950s and 1960s, apparently unaware of the incongruity of his advocacy of civil liberties in general while opposing civil rights in particular.”[6]  Karl Campbell built upon this image by describing how Ervin looked the part of a southern traditionalist, while acting as one. 

From the day he first walked onto the floor of the United States Senate in 1954, Sam Ervin seemed to fit the stereotype of the conservative old fashioned, filibustering southern senator.  He certainly looked the part with his thick mane of white hair, full jowls, and twitching eyebrows that danced up and down his face whenever he became agitated.  Ervin sounded just right as well with his thick southern drawl that echoed the distinctive mountain tones of western North Carolina. Ervin’s high profile defense of racial segregation added to his southern senatorial credentials, as did his penchant for quoting the Bible, reciting romantic poetry, and telling folk stories from “down home” in Morganton, North Carolina.[7]

Senator Sam J. Ervin, Jr.

 Sam J. Ervin, Jr.  Preserving the Constitution: The Autobiography of Senator Sam Ervin (Charlottesville, VA: Michie Company, 1984.) [This photo was found next to the title page, no page number was given.]

 

 Both descriptions seem to confirm Paul Luebke’s claim in Tar Heel Politics 2000 that there are in fact two dominant ideologies that have historically existed in North Carolina which do not necessarily correlate to party affiliation.[8] Ervin would fit most neatly into Luebke’s traditionalist ideology rather then the modernizer ideology which was exemplified in the book by Ervin’s political rival Governor Terry Sanford.  One phrase that Luebke used that may very well have captured both the points of view that Romasco and Campbell expressed in describing Ervin’s ideology, was “North Carolina traditionalist have promoted an anti-change ideology in both economic and social policy.” Senator Ervin’s voting record and statements would support the claim that he adamantly supported an anti-change ideology.  What made his opposition to the D.C. Crime Bill so strange was that he would have appeared, from his voting records and speeches, to have been one of crime control’s most vocal advocates. Yet his opposition was grounded in his anti-change ideology and strict interpretation of the meaning of the Constitution.

Sam Ervin’s consistency, regardless of the context one put it in, helped to educate the American people during the time in which he lived.  As Arthur Schlesinger wrote, “The republic owed a great deal to Sam Ervin.  No one man for a long time had done so much to educate the American people in the meaning and majesty of the Constitution (though his Constitution seemed to stop with the ten amendments adopted in 1791; at least he never showed the same zeal for the 14th and 15th Amendments).”[9]  While ideology has become clouded and identified with party affiliation, Ervin remained loyal to an inner calling: the need to preserve the very essence of the Constitution.  The time period in which he lived would make this difficult, since the distinction between one and the other became increasingly murky, and uncertainty seemed the only certainty.

 

Sam Ervin and the Constitution: The bottom reads: “Take care of it and it will take care of you!”

 Sam J. Ervin, Jr.  Preserving the Constitution: The Autobiography of Senator Sam Ervin (Charlottesville, VA: Michie Company, 19840, vii.

 

 “Law and Order” & the Nixon Administration Viewpoint

The presidential campaign of 1968 centered on the issue of safety, both domestically and abroad, and the Nixon campaign promised a return to law and order in response to the social unrest that had frightened so many Americans. Former Vice President Nixon had referred to Washington D.C. as the “crime capital of the world,” a phrase that implied criticism of the Johnson Administration’s failure to curb civil unrest.  The Republican Party platform of 1968, constructed with the help of the Nixon staff, specifically labeled this “permissiveness” and promised a return to order:

Lawlessness is crumbling the foundations of American society…We recognize that respect for law and order flows naturally from a just society; while demanding protection of the public peace and safety, we pledge a relentless attack on economic and social injustice in every form.  The present administration has: Ignored the danger signals of our rising crime rates until very recently and even now has proposed only narrow measures hopelessly inadequate to the need; Failed to implement most of the President’s own Crime Commission; Opposed legislative measures that would assist law enforcement officials in bringing law-breakers to justice; Refused to sanction the use of either court-supervised wiretapping authority to combat organized crime or revised the rules of evidence, both made available by Congress; Failed to deal effectively with threats to the nation’s internal security by not prosecuting identified subversives.[10]

  With such strong oratory exposing the need for strong new crime measures, the newly-elected Nixon Administration felt that a strong model crime program in the nation’s capital would help to ease the fears of the average American, and be politically profitable to the president. 

On the 31st of January 1969, just eleven days after having taken the oath of office, President Nixon delivered his first official statements about crime in the District of Columbia.  His remarks began with a clear reference for the need for reform in the nation’s capital.  “Responsibility begins at home,” was his message.[11]   He would go on to say that, “Violent crimes in the District of Columbia have increased by almost three times in the last eight years; only two days ago, the local newspapers carried a report that armed robberies had more than doubled in the past year alone.”[12]  The point that he was trying to get across was that crime disproportionately affected two important segments of society, the poor and those that work hard; thus the only way to help these people would be to enact the twelve points that he would go on later to outline.[13]   While these were mainly technical and bureaucratic reforms, some of the more controversial items of crime control were first mentioned, ever so briefly. The president remained vague on the specifics of what his crime control measures would be, but in the Bail Reform section, the first mention of a system of preventive detention appeared: 

Increasing numbers of crimes are being committed by persons already indicted for earlier crimes, but free on pretrial release.  Many are now being arrested two, three, even seven times for new offenses while awaiting trials.  This requires that a new provision be made in the law, whereby dangerous hard-core recidivists could be held in temporary pretrial detention when they have been charged with crimes and when their continued pretrial release presents a clear danger to the community.[14]

It would be this proposal that would first draw the attention of Senator Sam Ervin. With such a vivid description of the situation, it would have been hard to imagine why anyone would oppose the President’s crime control plan, but for traditionalists like Ervin the issue at heart was not the need to stop crime, for that could have been accomplished through other means; the real issue was to protect the balance of power between the rights of the individual and the powers of the federal government.

            In November of 1969 the Attorney General, John N. Mitchell, would outline the case for preventive detention.  In an article in the Virginia Law Review, he would attempt to show that pretrial detention was in fact constitutional, a major point of emphasis for the Administration and one that Ervin and others would try to label as a draconian measure.  The issues at hand were the right to bail, the constitutionality of denial of bail, and what the standards for the implementation of this measure would be.  Using the Supreme Court decision in Carlson v. Landon,[15] the Attorney General stated,

The bail clause was lifted with slight changes from the English Bill of Rights Act.  In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail.  When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept.  The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country.  Thus in criminal cases bail is not compulsory where the punishment may be death.  Indeed, the very language of the Amendment fails to say all arrests must be made bailable.[16]

Using this interpretation it would have been permissible to detain an individual without bail if it were suspected that the accused had the intention to commit another crime.  The Attorney General would go on to say that throughout the early history of this nation, states had previously limited or denied the protection of bail.  In this section he directly cited Senator Ervin’s home state of North Carolina not once but twice:  “It is noteworthy that North Carolina, which had allowed bail for all offenses in 1792, made capital offenses nonbailable in 1801.  Authority to deny bail in capital cases remains the general pattern throughout the United States today.”[17]  What the Attorney General left out of his history lesson, though, was that federal and state laws were ambiguous, at best, in determining the legality of preventive detention.  Yet even before the Attorney General proposed preventive detention as a means to stopping crime there had been an independent analysis that questioned the effectiveness of such a solution.

 In an article in the Harvard Law Review in 1966, four years before any federal bill existed, there were serious questions raised as to the constitutionality and the effectiveness of such a measure.  An independent study by the Vera Foundation found that “a 1962 sampling conducted by the Metropolitan Police Department of Washington, D.C., showed that only sixteen of 2,192 bailed defendants committed offenses while at liberty awaiting trial.”[18]  The number indicated that less than one tenth of criminals released on bail committed another offense.  To Ervin it appeared that this measure not only was unconstitutional but that it was merely a hollow legislative accomplishment that made for good press clippings but not an effective tool for criminal justice.

            Ervin’s resistance did not prevent the Administration from sending the proposed crime measure to Congress in fall of 1969, under the label of the Controlled Dangerous Substances Act of 1969, later this provision was bundled into the D.C. Omnibus Crime Bill, or S. 2601.  In a Justice Department memorandum, from Associate Deputy Attorney General John W. Dean, III to Egil Krogh, an advisor at the White House, the bill was summarized as, “This proposal included reorganization of the District court system, revision and codification of criminal procedures code, and revision of juvenile procedure code, increase in funding and powers of Bail Agency, and conversion of Legal Aid Agency into full-fledged Public Defender service.”[19]  While that was the stated purpose of the bill, on the very next page John Dean came to his main point in trying to justify what was labeled a controversial item.  For the administration, the definition of preventive detention was, “Provision is made for pretrial detention for up to 60 days for defendants who are within certain crime categories and who are found to be ‘dangerous’ after a full hearing.”[20]  This was contingent upon one of four provisions being met:

1) If a defendant committed a dangerous crime. (‘Dangerous’ being defined as covering offenses with high risk of additional public danger if released, bank robbery, and distributing narcotics were the examples given in the memo.) 2) A repeat offender with at least two crimes of violence charges, 3) narcotics addicts, 4) those charged with obstruction of justice or threatening witnesses.[21]  Dean summed up his message by stating, “This measure is a reasonable and necessary approach to the crime problem.  Society has the inherent right to protect its members, for limited periods through due process procedures, from persons who pose a serious threat to life and safety.  It is unconscionable for the Congress to deny the exercise of this right in the District of Columbia.”[22]  To Senator Ervin what was unconscionable was the vagueness of the statute, the implications that it held for the right to bail, and the fact that it would turn a judge into a sort of prophet deciding who was dangerous and who was not.

            Another major legislative initiative the Administration touted was a provision that would have allowed for “no-knock” searches and seizures.  The New York Times summarized this provision as “a modified ‘no-knock’ statute under which Federal agents could break into a home without warning or identification if they feared narcotics were about to be destroyed inside.”[23]  In the context that the administration envisioned it, it was meant to be a tool to prevent the distribution of narcotics.  To strict constructionists like Sam Ervin, the rights of the individual, namely the security and privacy of one’s own home, were in the gravest of danger.  To the administration, this provision “is really only a codification of the common law rule.  Under common law, the officer could find, on the basis of probable cause that if notice were given, it would lead to the quick destruction of evidence sought or endanger his life.”[24]  Much like the issue of preventive detention, the Nixon White House sought clear and codified circumstances and procedures for how these searches and seizures were to be conducted. 

An announcement of identity and purpose shall not be required prior to such breaking and entry- (1) if the warrant expressly authorizes breaking and entering without such a prior announcement, or (2) if circumstances known to such officer, or person at the time of breaking and entry, but, in the case of the execution of a warrant, unknown to the applicant when applying for such warrant, give him probable cause to believe that- (A) such notice is likely to result in evidence subject to seizure being easily and quickly destroyed or disposed of, (B) such notice is likely to endanger the life or safety of the officer or another person, (C) such notice is likely to enable the party to be arrested, to escape, or (D) such notice would be a useless gesture. [25]

This was the basis for the no- knock warrant; the threat that crucial evidence could be destroyed or distributed in the time that it took the suspect to answer the door. From the Administration’s point of view, the safeguards that they had created by including such categories and subdivisions relieved the constitutional objections that others would raise.  While the Administration felt that this would be a most useful tool in winning the war on crime, Senator Ervin and others felt that the bill had serious implications on the rights prescribed by the Fourth amendment, and in fact infringed upon most of America’s legal traditions going all the way back to their roots in English common law.  To the traditionalists, the safeguards that the White House had provided were inadequate or too vague to be considered as solutions to a much broader problem, the constitutionality of any such provision.

            The last of the major initiatives proposed by the administration that would draw considerable criticism from Congress would revolve around S. 30, the Organized Crime Control Act of 1969.  The Administration sought to codify certain provisions within the bill that would make wiretapped and secondhand testimony permissible in court hearings, without turning the testimony over to the defendant.  The Administration felt that the evidence should be admissible, and should be turned over to the court rather then the defense.  “A provision in S. 30 would alter this procedure by providing that such transcripts are to be turned over to the court, not the defendant, in the first instance.  If the court should then determine that such transcripts are clearly irrelevant to the case, as will be apparent in almost all cases, the trial may proceed without the transcripts being turned over to the defendant.”[26]  Again the administration would justify this position by commenting that it would in fact protect the lives of officers and witnesses who might be threatened if the defendant had knowledge of who they were.  To Ervin and other traditionalist the fact that a defendant might be denied information that could help to prove his or her innocence was an unconscionable thought.  This procedure, to them, seemed to fly in the face of the presumption of innocence until proven guilty.  For the Administration, the crime measures represented a clear and concrete formula to protect the public at large and also law enforcement officials from harm.  To traditionalists like Sam Ervin, their effectiveness was limited, their tactics too controversial, and other measures could obtain better results.

 

Senator Ervin’s Opposition

After holding hearings and researching the provisions on the various bills and proposals, (in fact there were some fourteen bills that had been sponsored in both Houses of Congress at this time), Senator Ervin felt that the Administration had overreached its boundaries and was infringing upon the rights guaranteed to American citizens under the Constitution.[27]  To him the measures were too drastic, and made for better political rhetoric then actual laws.  His years in the Senate had helped prepare him for such a task. By the early months of 1970, Sam Ervin already had a plan as to how he could either remove the proposed legislation, or weaken it to a level that it would never be effective.

The President and his staff feared that if each of the previous provisions of the various bills were sent to the Senate individually they would languish in the sub-committees of the Judiciary. Ervin would undoubtedly use his seniority and Chairmanship of the Constitutional Rights Subcommittee to prevent them from ever going to the floor, or weaken them just as he had done with various civil rights bills[28].  This fact forced the Administration to bundle all its measures into the Omnibus District of Columbia Crime Act of 1970.  They also made a promise that the provisions enabling no knock searches, and preventive detention would be removed from the bill, in order to placate Ervin.  As Senator Ervin would state on the floor of the Senate, “I was personally assured that it [the Omnibus District of Columbia Crime Act] made no changes in criminal procedure or substance, except of the most technical nature, and that there is nothing in the bill to which I would raise objection.”[29]  Yet after studying the bill Ervin discovered that the provisions he loathed the most were added, and hidden away in the final few pages of this massive legislation.  “This massive bill, over 322 pages long, was soon discovered to contain a number of extremely controversial changes in criminal law.  These changes were squirreled away in the recesses of the bill where only a careful examination would disclose them.”[30]  This attempt to sneak in the provisions that Ervin could never support only helped to steel the Senator’s resolve as he prepared to prevent the passage of the bill.

In the eyes of Ervin, the Administration’s insistence of a need for preventive detention was an unacceptable intrusion of a political gimmick into the very foundation of the Republic, the safety and security of the individual as prescribed by the Constitution.  This Constitutional basis, along with some personal reasons, helped to drive Ervin as he prepared himself to challenge a very popular President.  Ervin would state his reasons for opposition in the forward he wrote for an analysis of preventive detention in the Harvard Civil Rights-Civil Liberties Law Review

It violates the eighth amendment right of reasonable bail in non-capital cases.  It imprisons for unproved, anticipated crime, rather than actual criminal conduct.  The offense of “dangerousness” is unconstitutionally vague.  It violates the presumption of innocence.  It convicts on the basis of “Substantial probability” rather than “beyond reasonable doubt.” Preventive detention severely prejudices the defendant in the trial of the actual offense.  The bill does not afford procedural due process in the detention hearing.  Detention prejudices the right to access to counsel.  The detention hearing forces the defendant to waive his privilege against self incrimination. The hearing forces the defendant to disclose his defense to the prosecution prior to trial.   It imprisons on the basis of hearsay and other forms of “evidence” not admissible at trial under the rules of evidence.[31]

These reasons would be the basis for his opposition, which would combine both constitutional and legal analysis with personal reasons.

The first grounds on which Ervin challenged the administration on the need for preventive detention rested solely in his strict interpretation of the words of the Constitution and the Bill of Rights.  The Eighth Amendment reads as, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  Ervin openly admitted that he advocated a liberal interpretation of the amendment.  “The liberal interpretation is this: When it is read in the light of historical practices and policies allowing pretrial bail in non-capital cases, the Eighth Amendment impliedly guarantees a right to pretrial release on reasonable bail to person charged with non-capital federal offenses.”[32]  To Senator Ervin this right was supported by the majority opinion of the Supreme Court in the Stack v. Boyle case of 1951.  As the opinion written by Justice’s Jackson and Frankfurter stated, “The practice of admission to bail, as it has evolved in Anglo-American law, is not a device for keeping persons in jail upon mere accusation until it is found convenient to give them a trial.  On the contrary, the spirit of the procedure is to enable them to stay out of jail until a trial has found them guilty.”[33] Thus pretrial detention without bail turned this presumption on its head. This ruling in the eyes of Ervin seemed to prove beyond reasonable doubt that the denial of bail and the application of detention were in fact unconstitutional. Regardless of how positive the Attorney General and Senator Ervin felt, the fact remained that there was no set judicial opinion on the right to bail, because the opinions used, both in the Carlson and Stack cases, applied solely to the defendants involved, and the cases were returned to lower courts, so it was never the intention of the Court to prove an absolute right to bail. 

Another justification for Ervin’s opposition to preventive detention might have been pettier, in the fact that it would have reversed many of the provisions of one of his greatest legislative accomplishments, the Bail Reform Act of 1966.  According to Wayne Thomas:

The first bail reform bills were introduced in 1964 by Senator Ervin on behalf of himself and others just two weeks before the National Conference on Bail and Criminal Justice convened in Washington, D.C.  At this stage the legislation consisted of three related bills.  The first bill provided that no person be denied bail solely because of indigency and contained the presumption in favor of own recognizance release.  The second bill provided for crediting days served in pretrial detention against any sentence imposed after conviction.  The third bill provided for a 10 percent deposit system in the federal courts.[34]

This basic description was what the bill eventually came to be, a tool which would prevent people from skipping trial dates, because they risked the forfeiture of their own assets.  This bill would also bring Sam Ervin national attention, as President Johnson praised him for all of his work in helping to create this historic legislation.  As President Johnson stated: “Because of the Bail Reform Act of 1966, which an understanding and just Congress has enacted and which I will shortly sign, we can begin to insure that defendants are considered as individuals-not as dollar signs.”[35]  That phrase perhaps summed up the very essence of Senator Ervin’s opposition, there could have been a personal factor, the fact that he did not want to see one of his accomplishments removed from the law of the land; but more importantly though, was the fact that President Johnson used the term “considered as individuals.” To Sam Ervin that was really what he was fighting for--the rights of individual against the encroaching powers of the federal of government.

            The last reason for which Ervin would oppose preventive detention arose out of the burden that it would place on both law enforcement and judges in determining who would be held under this provision.  “At the hearing, the judge must find some new and undefined standard, that the individual is ‘substantially’ guilty, and that he may be a danger if released.”[36]  To Ervin, who had spent his entire professional life, as either a lawyer or a judge, until 1954 when he was appointed to the Senate, this seemed that it would only increase the work load of an already stretched judiciary.  “These pseudo trials will further burden a court system presently facing an average delay of 8 to 10 months per case, and a crowded prison system with over 50% of those in D.C. jails awaiting trial more than two months already.”[37]  Ervin proposed a solution to this problem in amendment form that was rejected by his colleagues.  The Ervin plan to relieve the strain on law enforcement and the judiciary consisted of increasing the number of judges on the court to relieve case loads for the original members and guarantee the defendants an expedited trial.[38]  Ervin would be unable to keep the preventive detention provision from passage in 1970 but in subsequent months he would attach amendments to other bills to weaken and limit its effectiveness.

            Another main emphasis of the D.C. Crime Bill consisted of a provision to allow for no-knock searches and seizures of criminals.  With the provision so vaguely worded and the evidence needed to search so circumspect, Ervin could not find it at all permissible under the securities found in the Bill of Rights.  In his personal notes Ervin wrote of this provision that it was, “Inconsistent with present law. It regresses from present decisional law affecting Constitutional Rights.”[39]  These notes were in comparison to the provision and the stated positions of the ABA (American Bar Association.)  As was the case with preventive detention Ervin would again make an argument that the provision both ignored the meaning of the Constitution and the historical precedent of America’s legal tradition.  His argument would involve the use of his southern traditionalist style: the use of legal precedent, the Constitution, biblical references, and his old mountaineer humor. 

            His main constitutional argument would revolve around the implications that this stipulation had for the Fourth Amendment.  The Fourth Amendment states, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person to be seized.”  If taken literally, as Ervin believed, this article specifically would not have allowed the measure that the administration had offered.  To Ervin the implication that law enforcement could potentially burst into an innocent person’s home without any prior approval of an independent authority infringed upon humanity’s yearning for privacy going all the way back to biblical times:

The oldest and deepest hunger of the human heart is for a place where one may dwell in peace and security and keeping inviolate from public scrutiny one’s innermost aspirations and thoughts, one’s most intimate associations and communications, and one’s most private activities.  This truth was documented by Micah, the prophet, 2,700 years ago when he described the Mountain of the Lord as a place where “they shall sit every man under his own vine and fig tree and none shall make them afraid.”(Micah 4:4)[40]

Ervin Using His Mountain Charm: This image showed how Ervin used his cultivated image as “just a country lawyer,” to lull his political rivals into a false sense of security all the while protecting his own agenda.

Paul R. Clancy, Just a Country Lawyer: A Biography of Senator Sam Ervin (Bloomington, IN: Indiana University Press, 1974.) [This was found in the photo section. No page given. ]

 

 For Sam Ervin the thought of police entering a private citizen’s home and searching it was an absolute mockery of what the Founding Fathers had envisioned when writing the Bill of Rights.  This provision would have infringed upon not only one of the causes that had provoked the desire for American independence, but also would have infringed upon a right that people had yearned for since humanity began.  As he would state in his autobiography:

No-knock laws constitute convincing proof of Edmund Burke’s aphorism that bad laws are the worst sort of tyranny.  Inasmuch as no-knock warrants bear such a striking likeness to the general warrants and writs of assistance whose use in Massachusetts were so instrumental in causing the American Revolution, it was passing strange, that the Nixon Administration should wed itself inseparably to the no-knock concept at a time in which the United States was approaching the bicentennial of its independence.[41]

This provision would provoke some of the harshest criticism from the Senator, both in his writings and on the Senate floor.  In an article in the Supreme Court Review, he would state that the insistence of a ‘no-knock’ statue would infringe upon one of the Fourth Amendments most important provisions the Exclusionary Rule.  “Apart from it (the exclusionary rule), the Amendment’s guaranty against unreasonable searches and seizures is worse then a solemn mockery, and the Amendment might well be expunged from the Constitution as a meaningless expression of a mere pious hope…The exclusionary rule is, in reality, the only breakwater against conviction-prone courts and overzealous law enforcement officers.  Those who maintain the contrary are like the comforters of Job: they multiply words without knowledge.”[42]  To a traditionalist like Ervin the thought of limiting the power of the Bill of Rights, a document he thought to be the greatest document ever written by the hands of man (he considered the King James version of the Bible to be greatest work ever written, but it was divinely inspired) for the appearance of law and order was a disgrace. This for him proved that the “law and order” stance was a mere political gimmick, an initiative intended to gain votes rather then to help the criminal justice system or the judiciary.  He would attempt to sway the opinion of his colleagues with a strong personal statement delivered on the Senate floor that appealed to their sense of duty. “If those who occupy high office in this nation do not love the Constitution enough to take such action as is necessary to make its precepts living principles of government in our land, the rights which the Constitution undertakes to create, the responsibilities which the Constitution undertakes to impose, and the freedoms which the Constitution undertakes to secure become naught except meaningless words on a useless scrap of paper.”[43]  This statement was perhaps the best example of what Ervin felt the D.C. Crime Bill would do the Constitution, render it a meaningless document, and because of that it formed the basis of his strong and vocal opposition.

One of the final provisions within the D.C. Crime Bill was a clause that would have broadened the power of the federal government to allow for expanded wiretapping and surveillance of citizens deemed “dangerous to the public.” Fearing that this power could easily be abused, Ervin would try to attach amendments that would limit the power of the government to insure the privacy of the individuals of the District of Columbia. This provision would not gain widespread notoriety until 1972 when Ervin would hold a series of hearings on the matter, and also argue a case before the U.S. Supreme Court, in which he would concluded that the ability for the military to collect and store material on private citizens was a violation of the First Amendment and United States law. 

For Ervin the issues at had were similar to the issues surrounding preventive detention and no-knock laws, in particular Ervin worried what military surveillance would do to the privacy of the individual.  He feared that this broad power not only infringed upon the Constitution and America’s legal tradition but that it gave the appearance of America as a police state, keeping tabs on its citizens’ activities.  In particular he was worried about scenes like those described by Paul R. Clancy in which he described an anti-war rally in 1969:

In September, 1969 a small crowd gathered at the gates of Fort Carson in Colorado Springs for demonstrations against the Vietnam War.  Most of the participants were college students, although there was another large group which somehow did not fit with the others: Men with cameras, notebooks and microphones--boom microphones that could pick up sound from a great distance…Of the one hundred and nineteen persons at the rally, fifty-three were there to observe. Some were from the media, but the majority were military agents: Army, Navy, and Air Force spies on American soil watching civilians in lawful protests.[44]

 To Ervin, who was using his strict traditionalist interpretation of the first and third amendments, this surveillance seemed to be a violation of clauses that established freedom of speech, freedom to assemble peacefully, and freedom to petition the Government for a redress of grievances, along with the implication that the military intrusion into civilian affairs was unconstitutional as implied by the prohibition against quartering soldiers in private homes. In 1972 Ervin would defend these rights in front of the Supreme Court on behalf the Unitarian Universalist Association, a group that had information collected against it by the military in regards to the anti-war movement.  It would be one of the few times in American history that a sitting Senator would argue before the court.  In a five to four decision the Court would rule against Ervin’s case but not without agreeing to certain aspects of his argument.  As Chief Justice Burger would write in the majority opinion:

The concerns of the Executive and Legislative Branches in response to disclosure of Army surveillance activities--and indeed the claims alleged in the complaint--reflect a traditional and strong resistance of Americans to any military intrusion into civilian affairs.  That tradition has deep roots in our history and found early expression, for example, in the Third Amendment’s explicit prohibition against quartering soldiers in private homes without consent and in the constitutional provisions for civilian control of the military.  Those prohibitions are not directly presented by this case, but their philosophical underpinnings explain our traditional insistence on limitations on military operations in peacetime.[45]

Justice’s Douglas and Marshall in the dissenting opinion would agree with Ervin historical and Constitutional argument.  “The alarm was sounded in the Constitutional Convention about the dangers of the armed services.  Luther Martin of Maryland said, ‘when a government wishes to deprive its citizens of freedom, and reduce them to slavery, it generally makes use of a standing army.’ That danger, we have held, exists not only in bold acts of usurpation of power, but also in gradual encroachments.”[46]  They would go on later to state, “If we were to fail in these days to enforce the freedom that until now has been the American citizen’s birthright, we would be abandoning for the foreseeable future the constitutional balance of powers and rights in whose name we arm.”[47]  In their dissent, Justices Douglas and Marshall sounded much like Senator Ervin just a few years earlier when talking about D.C. Crime Bill he stated, “If I were to vote for the adoption of this conference report, I would do something which would make me hate myself at the setting of the sun, because I known that this bill is honeycombed with unwise, unjust, and unconstitutional provisions.”[48]  In 1972 it appeared that Ervin’s opposition in 1970 seemed to be well-founded as the American people came to realize that their securities had been infringed upon by the “law and order” provisions that were supposed to keep them safe.  For Ervin this was merely the realization of his worst fears that had led him to follow his ideology and oppose a political gimmick.

 

Conclusion

While Sam Ervin was unable to curb the tide of the “law and order” syndrome, he would in subsequent years pass a series of amendments weakening the provisions that he felt did so much harm to the Constitution.  While he may have lost the initial round over the D.C. Crime Bill, his staunch opposition in favor of the rights of citizens, in the predominantly African-American District of Columbia, negated the argument that Ervin cared only about guarding the status quo.  To him the status quo meant preserving the Constitution and the rights embodied in it, and to Ervin that goal superseded all else, especially the issue of race.  Ervin had preformed at his best to prevent America from becoming like the protagonist in Maurice Ogden’s Hangman, a dog eared poem tucked away in his personal notes.  In the poem the town was terrorized by a Hangman who was able to use his position of authority and justice to lure the town’s people into a false sense of security.  Their silence and apathy allowed him to systematically hang all of the towns citizen’s until only one man was left. When called to the gallows by the Hangman, he asked why he had murdered the townspeople who had served him faithfully, and the Hangman replied, “I did no more than you let me do.”[49]  This poem seemed to define why Ervin was so adamant about the need not to pass the D.C. Crime Bill; he feared that his silence would lead a situation like Ogden’s town where the power of justice had become too powerful and too corrupt and in the end destroyed that society.  The provisions of the crime bill which infringed upon the rights established in the Constitution seemed in his mind to be the same thing.   In the end; Ervin’s opposition to such a popular bill showed that he put preserving the Constitution above political gain, public pressure, and expediency.

 


 

[1] Sam J. Ervin, Jr., “The Department of Justice’s Fast Shuffle on the Bill of Rights,” in the Sam J. Ervin Papers, Subgroup B: Private Papers #3847B, Southern Historical Collection, Wilson Library, University of North Carolina at Chapel Hill.

 

[2]Arthur U. Romasco, review of A Good Man: The Life of Sam J. Ervin, by Dick Dabney, Journal of American History, 64 (1977): 211.

[3] Dick Dabney, A Good Man: The Life of Sam J. Ervin (Boston: Houghton-Mifflin, 1976), 43.

[4] Sam J. Ervin, Jr.  Preserving the Constitution: The Autobiography of Senator Sam Ervin  (Charlottesville, VA: Michie Company, 1984), 168.  For more information, see chapters on Civil Rights, and Civil Rights as Constitutional Wrongs. Also see Karl Campbell, “Clanghorn’s Hammurabi: Senator Sam Ervin and Civil Rights,” North Carolina Historical Review 78, no. 2 (2001): 431-456.

[5]Sam J. Ervin, Jr.  “Preserving the Constitution,” 353-357,  Folder 1167, in the Sam J. Ervin Papers, Subgroup B: Private Papers #3847B, Southern Historical Collection, Wilson Library, University of North Carolina at Chapel Hill.

[6] Romasco, 211.

[7]Karl E. Campbell, “Preserving the Constitution, Guarding the Status Quo: Senator Sam Ervin and Civil Liberties,” North Carolina Historical Review 78, no. 2 (2001): 457.

[8]Paul Luebke, Tar Heel Politics 2000  (Chapel Hill, NC: The University of North Carolina Press, 1998), 19.

[9] Arthur M. Schlesinger Jr., The Imperial Presidency (Boston: Houghton Mifflin, 1973), 393.

[10] John Woolley and Gerhard Peters, “Republican Party Platform of 1968, Crime Section,” American Presidency Project, University of California-Santa Barbara, http://www.presidency.ucsb.edu/showplatforms.php?platindex=R1968.

[11] Richard M. Nixon, Public Papers of the Presidents of the United States: Richard M. Nixon, 1969 (Washington, DC: GPO, 1971), 40.

[12] Richard Nixon, Public Papers, 1969, 40.

[13] Richard Nixon, Public Papers, 1969, 40. For all twelve, see President Nixon’s “Statement Outlining Actions and Recommendations for the District of Columbia.” 31 January 1969.  Public Papers, 42-47.

[14] Richard Nixon, Public Papers, 1969, 44.

[15] Carlson v. Landon, 342 U.S. 524 (1952).

[16]  John M. Mitchell, “Bail Reform and the Constitutionality of Pretrial Detention,” Virginia Law Review  55, no. 7 (1969): 1224-1225.

[17]Mitchell, 1227.

[18] “Preventive Detention before Trial,” Harvard Law Review 79, no. 7 (1966): 1497.

[19] John Dean to Egil Krogh, 19 June 1970, “Memo: Administration Positions on Various Crime Bills,” Nixon Presidential Materials Staff, National Archives at College Park, Maryland.

[20] John Dean to Egil Krogh.

[21] John Dean to Egil Krogh

[22] John Dean to Egil Krogh

[23] Warren Weaver, “Narcotics Raids Without Warning Voted By Senate,” New York Times, January 28, 1970.

[24]House Committee on Interstate and Foreign Commerce, Testimony of Bureau of Narcotics and Dangerous Drugs Director John Ingersoll,  91st Cong., 2nd sess., 1970.

[25] See Explanatory Note 3, “No Knock” Search and Seizures and the District of Columbia Crime Act: A Constitutional Analysis,” in Journal of Criminal Law, Criminology, and Police Science 62, no. 3 (1971): 350. [No Author Given, this was found in a section labeled Student Comments]

[26] John Dean to Egil Krogh.

[27]Explanatory note 1, “Preventive Detention before Trial,” Yale Law Review  79, no.7 (1966), 926.

[28] For more information, see Karl Campbell, “Clanghorn’s Hammurabi.”

[29] Ervin, “Fast Shuffle on the Bill of Rights.” 

[30] Ervin, “ Fast Shuffle on the Bill of Rights.”

[31] Sam J. Ervin Jr., Foreword, in “Preventive Detention: An Empirical Analysis,” by Arthur R. Angel and others, Harvard Civil Rights-Civil Liberties Law Review  6 (1971): 298.

[32]Ervin, Preserving the Constitution, 307.

[33]Stack v. Boyle, 342 U.S. 1, 4.

[34] Wayne H. Thomas, Bail Reform in America (Berkeley, CA: University of California Press, 1976), 162.

[35] Ervin, Preserving the Constitution, 300.

[36] Ervin, “Preventive Detention,” in the Sam J. Ervin Papers, Subgroup A: Senate Records #3847A, Southern Historical Collection, Wilson Library, University of North Carolina at Chapel Hill.

[37] Ervin, “Preventive Detention.”

[38] Ervin, “Preventive Detention.”

[39] Sam J. Ervin, Jr.,“Comparison of D.C. Crime Bill and ABA Positions,” in the Sam J. Ervin Papers, Subgroup A: Senate Records #3847A, Southern Historical Collection, Wilson Library, University of North Carolina at Chapel Hill.

[40]Sam J. Ervin Jr., “The Exclusionary Rule: An Essential Ingredient of the Fourth Amendment,”  Supreme Court Review (1983): 283.

[41] Ervin, Preserving the Constitution, 285.

[42] Ervin, “The Exclusionary Rule: An Essential Ingredient of the Fourth Amendment,” 287. 

[43] Sam J. Ervin, Jr.  “The Congressional Record-Senate ( 23 July 1970),” in the Sam J. Ervin Papers, Subgroup A: Senate Records #3847A, Folder 15143,Southern Historical Collection, Wilson Library, University of North Carolina at Chapel Hill.

[44] Paul R. Clancy, Just a Country Lawyer: A Biography of Senator Sam Ervin (Bloomington, IN: Indiana University Press, 1974), 229-230.

[45] Laird v. Tatum, 408 U.S. 1 (1972).

[46] Laird v. Tatum, 408 U.S. 1 (1972).

[47] Laird v. Tatum, 408 U.S. 1 (1972).

[48] Ervin, The Congressional Record-Senate (23 July 1970),” in the Sam J. Ervin Papers, S25558.

[49] Maurice Ogden, “Maurice Ogden’s Hangman,” in the Sam J. Ervin Papers, Subgroup B: Private Papers #3847B, Folder 854, Southern Historical Collection, Wilson Library, University of North Carolina at Chapel Hill.

Bibliography

Primary

Carlson v. Landon, 342 U.S. 524 (1952).

Dean, John to Egil Krogh.  19 June 1970. “Memo: Administration Positions on Various Crime Bills.” Nixon
Presidential Materials Staff, National Archives at College Park, Maryland.

Ervin, Sam J., Jr.  “Comparison of D.C. Crime Bill and ABA Positions,” in the Sam J. Ervin Papers, Subgroup A: Senate Records #3847A, Folder 13583, Southern Historical Collection, Wilson Library, University of North Carolina at Chapel Hill. [These are some notes typed by the Senator or his staff, in which Senator Ervin contrasted ABA positions with the provisions of the Crime Bill.]

---. “The Congressional Record-Senate ( 23 July 1970, 26 August 1970.),” in the Sam J. Ervin Papers, Subgroup A: Senate Records #3847A, Folder 15143,Southern Historical Collection, Wilson Library, University of North Carolina at Chapel Hill. [These are either copies or excerpts from the Senator’s Senate floor speeches on the subjects.]

---. “The Department of Justice’s Fast Shuffle on the Bill of Rights,” in the Sam J. Ervin Papers, Subgroup B: Private Papers #3847B, Folder 854,Southern Historical Collection, Wilson Library, University of North Carolina at Chapel Hill. [These are personal notes along with a few floor speeches about how the Senator felt he had been deceived by the White House.]

---.  “The Exclusionary Rule: An Essential Ingredient of the Fourth Amendment.”  Supreme Court Review 1983 (1983): 283-304.

---. Humor of a Country Lawyer. Chapel Hill, NC: University of North Carolina Press, 1983.

--. 1971. Foreword:  “Preventive Detention- A Step Backward for Criminal Justice. In “Preventive Detention: An Empirical Analysis.” By Arthur R. Angel and others. Harvard Civil Rights-Civil Liberties Law Review 6 (1971); 291-299.

---. “Preventive Detention,” in the Sam J. Ervin Papers, Subgroup A: Senate Records #3847A, Folder 13592-13598, Southern Historical Collection, Wilson Library, University of North Carolina at Chapel Hill. [These are notes and various articles that deal with the Senator’s objection to the constitutionality of preventive detention.]

---. “Supplemental Comments of the National Capital Area Civil Liberties Union on Specific Provisions of H.R. 12584 and 13869,” in the Sam J. Ervin Papers, Subgroup A: Senate Records #3847A, Folder 13583,Southern Historical Collection, Wilson Library, University of North Carolina at Chapel Hill. [These are typed notes that were sent to the Senator’s office which outlined the various proposals on crime control in the various committees of Legislative Branch at the time.]

---. Preserving the Constitution: The Autobiography of Senator Sam J. Ervin, Jr.  Charlottesville, VA: Michie, 1984.

Laird v. Tatum, 408 U.S. 1 (1972).

Mitchell, John M. “Bail Reform and the Constitutionality of Pretrial Detention.” Virginia Law Review 55, no. 7 (1969): 1223-1242. 1969. 

Nixon, Richard M.  Public Papers of the Presidents of the United States: Richard M. Nixon, Washington, DC: GPO, 1971.

Ogden, Maurice. “Maurice Ogden’s, Hangman,” in the Sam J. Ervin Papers, Subgroup B: Private Papers #3847B, Folder 854, Southern Historical Collection, Wilson Library, University of North Carolina at Chapel Hill. [This is a copy of a poem which was placed with the Senator’s personal notes in the D.C. Crime Bill folder.]

Stack v. Boyle, 342 U.S. 1, (1951).

U.S. House Committee on Interstate and Foreign Commerce. Testimony of Bureau of Narcotics and Dangerous Drugs Director John Ingersoll.  91st Cong., 2nd sess., 1970. Nixon Presidential Materials Staff, National Archives at College Park, Maryland.

 

Secondary

Angel, Arthur R. and others. Preventive Detention: An Empirical Analysis.”  Harvard Civil Rights-Civil Liberties Law Review 6 (1971).

Campbell, Karl E. “Clanghorn’s Hammurabi: Senator Sam Ervin and Civil Rights.” North Carolina Historical Review 78, no. 2 (2001): 432-456.

--.  “Preserving the Constitution, Guarding the Status Quo: Senator Sam Ervin and Civil Liberties.” North Carolina Historical Review 78, no.2 (2001): 456-482.

Clancy, Paul R.  Just a Country Lawyer: A Biography of Senator Sam Ervin.  Bloomington, IN: Indiana University Press, 1974.

“The Cost of Preventive Detention.”  Yale Law Journal 79, no 5 (1970): 926-940.

 [No Author Given, this was found in a section labeled Student Comments.]

Dabney, Dick. A Good Man: The Life of Sam J. Ervin.  Boston: Houghton Mifflin, 1976.

Jensen, Joan M.  Army Surveillance in America, 1775-1980.  New Haven, CT: Yale University Press, 1991.

Luebke, Paul.  Tar Heel Politics 2000. Chapel Hill, NC: University of North Carolina Press, 1998.

New York Times, January 1969-December 1970.

“‘No Knock’” Searches and Seizures and the District of Columbia Crime Act: A Constitutional Analysis.”  Journal of Criminal Law, Criminology, and Police Science 62, no. 3 (1971): 350-362.

 “Preventive Detention before Trial,” Harvard Law Review 79, no. 7 (1966), 1489-1510.

“A Response to Fear.” Time.  3 August 1970.

Romasco, Arthur U. Review of A Good Man: The Life of Sam J. Ervin, by Dick Dabney. Journal of American History 64 (1977): 211-212.

Thomas, Wayne H.  Bail Reform in America.  Berkeley, CA: University of California Press, 1976.

Woolley, John and Gerhard Peters. “Republican Party Platform of 1968, Crime Section,” American Presidency Project, University of California-Santa Barbara, http://www.presidency.ucsb.edu/showplatforms.php?platindex=R1968.