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Published online by Cambridge University Press: 25 January 2021
Although originalism’s emergence as an important theory of constitutional interpretation is usually attributed to efforts by the Reagan administration, the role the theory played in the South’s determined resistance to civil rights legislation in the 1960s actually helped create the Reagan coalition in the first place. North Carolina Senator Sam Ervin Jr., the constitutional theorist of the Southern Caucus, developed and deployed originalism because he saw its potential to stymie civil rights legislation and stabilize a Democratic coalition under significant stress. Ervin failed in those efforts, but his turn to originalism had lasting effects. The theory helped Ervin and other conservative southerners explain to outsiders and to themselves why they shifted from support for an interventionist state powerful enough to enforce segregation to an ideology founded on individual rights and liberty. It thus eased the South’s integration with the emerging New Right.
Thanks to Nancy MacLean, Kenneth Kersch, Chris Schmidt, Laura Phillips Sawyer, Lucas Boggs, Lori Ringhand, the American Society for Legal History, and the editors of the Journal of Policy History
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4. The most serious electoral threat Ervin faced was when Terry Sanford considered challenging him for the Democratic nomination in 1968. Sanford explained his decision not to run on the grounds that the “race issue” would have made it difficult to defeat Ervin without doing serious damage to the Democratic Party. Campbell, Senator Sam Ervin, 211–13. For a description of how defenders of segregation turned from federalism to arguments based on individual liberty and private property, and a clear identification of their hypocrisy in making that shift, see Schmidt, Christopher, “Defending the Right to Discriminate: The Libertarian Challenge to the Civil Rights Movement,” in Signposts: New Directions in Southern Legal History, ed. Hadden, Sally E. and Minter, Patricia Hagler (Athens, 2013), 417–46Google Scholar.
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13. As Joseph Lowndes has written, “successful … regime builders must transform coalitions into more deeply held collective political identities. This requires actors to synthesize diverse political ideas into seemingly natural frameworks over a long span of time.” Lowndes, From the New Deal to the New Right, 157. Kersch’s Conservatives and the Constitution applies a similar approach to show how a wide variety of conservative intellectuals, including, but certainly not limited to, originalists, used constitutional argument to construct a conservative identity that has held together a potentially fractious coalition. This article extends these insights by showing that originalism was attractive to conservative politicians because it helped solve practical problems associated with building legislative and electoral coalitions. Reuel Schiller, Forging Rivals (Cambridge, 2017) shows how legal discourse can contribute to the construction of similar frameworks outside the conservative movement.
14. Campbell, Senator Sam Ervin, 83–85.
15. Sam J. Ervin, “Alexander Hamilton’s Phantom: Supreme Court Has Usurped the Power to Nullify Acts of Congress” (28 April 1955), in Vital Speeches of the Day October 15, 1955–October 1, 1956, (n.p.), 23–26.
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19. In National Surety Corporation v. Sharpe, 232 N.C. 98, 103–4 (1950), for example, Ervin interpreted the meaning of the North Carolina Constitution’s “Law of the Land” clause. He said nothing about the historical circumstances surrounding the Constitution. Instead, he wrote that the language was taken from the Magna Carta, noted its similarity to the US Constitution’s Due Process Clause, then primarily defined the clause’s meaning by quoting a hornbook. In an analysis of a question he identified as one of first impression, he eschewed an analysis of the historical circumstances surrounding the constitutional provision and based his decision on the “manifest” design of the provision. Boney v. Board of Trustees of Kinston Graded Schools, 229 N.C. 136, 140 (1948). Though not common, there were discussions by other justices of the role original intent and meaning should play in Constitutional interpretation. Justice Barnhill in Perry v. Stancil, 237 N.C. 442 (1953) emphasized that the “fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and the people adopting it.”
20. Sam J. Ervin, “Alexander Hamilton’s Phantom.”
21. Ibid.; Balkin, Jack M., “The New Originalism and the Uses of History,” Fordham Law Review 82 (2013): 641Google Scholar.
22. My definition of originalism draws on but is not the same as the definition that Lawrence B. Solum and others have used in ongoing academic debates. See Solum, Lawrence B., “Originalism and Constitutional Construction,” Fordham Law Review 82 (2013): 3Google Scholar. My definition is narrower because I want to identify methods of constitutional interpretation that would be considered originalist if they were used in political debate. As I use the term, originalism is a method of constitutional interpretation that provides a greater role for the original intentions of the Constitution’s drafters or the original meaning of the text than other theories of constitutional interpretation allow. Originalism emphasizes original intent or meaning by asserting that the meaning of a constitutional provision was fixed when it was drafted or ratified, and that this meaning should constrain the application of the Constitution to particular disputes. Originalism, as I use the term, asserts that extrinsic evidence from the time a provision was written can provide insights into the intentions of the drafters and the meaning of the text—insights that can definitively resolve important and contested issues of constitutional law. No one would have called Ervin an originalist during his time in public life because the term was not coined until a 1980 critique of the theory by Paul Brest. Brest, Paul, “The Misconceived Quest for Original Understanding,” Boston University Law Review 60, no. 2 (March 1980): 204–38Google Scholar. Yet it is not anachronistic to call Ervin an originalist because even though the term did not exist, the concept did. See Quentin Skinner, Regarding Method, vol. 1 of Visions of Politics (New York, 2002), 159. After 1956, Ervin consistently defined the proper role of the Court in a way that fit the concept as it was later understood by originalists. And when works appeared that are now considered part of the originalist tradition—including scholarship by Raoul Berger and Lino A. Graglia and legal opinions by Justice William Rehnquist, Ervin readily identified them as examples of his own methodology. See Sam J. Ervin Jr., “Judicial Verbicide: An Affront to the Constitution,” Modern Age: A Conservative Review 25 (Summer 1981). Just as Rehnquist, Berger, and Graglia can properly be described as originalists in the years before Brest’s article, so too can Ervin.
23. Ervin, “Alexander Hamilton’s Phantom,” 34.
24. Ibid., 25.
25. Bickel, Alexander M., “The Original Understanding of the Segregation Decision,” Harvard Law Review 69, no. 1 (November 1955): 5CrossRefGoogle Scholar. William Winslow Crosskey can be considered an originalist, but his Politics and the Constitution in the History of the United States (Chicago, 1953) had little influence.
26. See Adamson v. California, 332 US 46 (1947) (Black, dissenting).
27. Dennis v. United States, 341 US 494 (1951) (Black, dissenting); Adamson v. California, 332 US 46 (1947). These decisions contributed to Ervin’s support for bills that sought to strip the Supreme Court of jurisdiction over questions of civil liberties. Karl E. Campbell, “Preserving the Constitution, Guarding the Status Quo: Senator Sam Ervin and Civil Liberties,” North Carolina Historical Review 78, no. 4 (October 2001): 463–64. Ervin supported the Jenner-Block bill and the States Rights Bill in 1957.
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29. Bickel, “The Original Understanding.”
30. White, G. Edward, “The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social Change,” Virginia Law Review 59 (February 1973): 286CrossRefGoogle Scholar. Alexander Bickel, for example, certainly saw himself extending that tradition. Bickel, Alexander M., The Supreme Court and the Idea of Progress (New York, 1970), 19–30Google Scholar.
31. The version of process jurisprudence these scholars advanced, G. Edward White has written, “was incompatible with the brand of activism that emerged in the Warren Court.” White, “Reasoned Elaboration,” 291.
32. Hand, Learned, The Bill of Rights (Cambridge, Mass., 1958): 55CrossRefGoogle Scholar.
33. Wechsler, Herbert, “Toward Neutral Principals and Constitutional Law,” Harvard Law Review 73, no. 1 (November 1959): 26CrossRefGoogle Scholar.
34. Ibid., 150–51; Kurland, Philip B., “Forward: Equal in Origin and Equal in Title to the Legislative Branches of Government,” Harvard Law Review 78, no. 1 (1964): 143–76CrossRefGoogle Scholar.
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36. Ward, Jason Morgan, Defending White Democracy: The Making of a Segregationist Movement and the Remaking of Racial Politics, 1936–1965 (Chapel Hill, 2011)CrossRefGoogle Scholar; Finley, Keith M., Delaying the Dream: Southern Senators and the Fight Against Civil Rights, 1938–1965 (Baton Rouge, 2008)Google Scholar.
37. Finley, Delaying the Dream, 5–7.
38. Day, The Southern Manifesto, vii, 4–5, 62.
39. Finley, Delaying the Dream, 9–12.
40. Ibid., 10.
41. Ibid.
42. Badger, “The South Confronts the Court,” 128.
43. Walker, Anders, The Ghost of Jim Crow: How Southern Moderates Used Brown Board of Education to Stall Civil Rights (New York, 2009)CrossRefGoogle Scholar; Chafe, William H., Civilities and Civil Rights: Greensboro, North Carolina, and the Black Struggle for Freedom (New York, 1981)Google Scholar. By reactionaries I mean white southerners prepared to resist integration through violence, other lawless actions, or actions of questionable legality, including massive resistance supported by interposition. By moderates I mean white southerners who supported segregation but rejected violence, lawlessness, and massive resistance.
44. Anthony Badger, New Deal / New South (Fayetteville, 2007), 81–85. A majority of Texas’s congressional delegation—one senator and seventeen representatives—did not sign the manifesto. The Texas response stemmed from both an intrastate battle over control of the Democratic Party and personal animosities among the state’s politicians. Ibid., 73–78.
45. Badger, “The South Confronts the Court.”
46. Day, The Southern Manifesto, 13.
47. Walker, Ghost of Jim Crow; Belknap, Michal R., Federal Law and Southern Order: Racial Violence and Constitutional Conflict in the Post-Brown South (Athens, 1995)Google Scholar.
48. Badger, “The South Confronts the Court,” 137–38.
49. “Blue Print for Resisting Integration,” Papers of W. C. George, folder 99, Wilson Library (Chapel Hill).
50. Walker, Ghost of Jim Crow; Badger, “The South Confronts the Court,” 133–34.
51. Ibid.
52. Ervin, Sam J., “The United States Congress and Civil Rights Legislation,” North Carolina Law Review 42, no. 1 (1963–1904): 3Google Scholar.
53. Kalman, Laura, Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court (New York, 2017)Google Scholar.
54. “Remarks for Presentation at Meeting in Hillsboro,” Papers of W.C. George, folder 99, Wilson Library (Chapel Hill).
55. Ibid.
56. “Some Issues in our National Crisis: Integration, Christianity, and ‘the Law of the Land,” 2 June 1960, Papers of W.C. George, folder 99, Wilson Library (Chapel Hill).
57. Ibid.
58. “Speech,” Papers of W.C. George, folder 99, Wilson Library (Chapel Hill).
59. Ibid.
60. “Some Issues in our National Crisis.”
61. “Speech.”
62. Day, The Southern Manifesto; Hoffer, The Search for Justice, 109.
63. Typed draft marked “Ervin” in Russell’s handwriting, Richard B. Russell, Jr. Collection, III. Speech/Media, Box 27, Folder 9, “Southern Manifesto” (Athens, 1956).
64. Ibid.
65. Sam J. Ervin et al., “Southern Manifesto,” 4459–60.
66. Ibid.
67. Ward, Defending White Democracy.
68. US Congress, Senate, Subcommittee on Constitutional Rights, Hearings Before the Subcommittee on Constitutional Rights of the Committee of the Judiciary, 86th Cong., 1st sess., on S. 435, Etc. (1959), 32. See also US Congress, Senate, Subcommittee on Constitutional Rights, Subcommittee on Constitutional Rights 1959 Civil Rights Act Hearing, 378–79; ibid., 383.
69. US Congress, Senate, Committee on the Judiciary, Hearings on Civil Rights: The President’s Program (S. 1731), 88th Cong., 1st sess., 1963, 180.
70. Finley, Delaying the Dream, 10.
71. Ibid., 168.
72. Ibid., 168–70. See Senator Ervin, speaking on HR 6127, on 19 June 1957, 85th Cong., 1st sess., Congressional Record 103, pt. 7: 9627–Senator Russell, speaking on HR 6127, on 2 July 1957, 85th Cong., 1st sess., Congressional Record 103, pt. 8: 10771; Senator Scott, speaking on HR 6127, on 13 July 1957, 85th Cong., 1st sess., Congressional Record 103, pt. 9: 11,611; Senator Long, speaking on HR 6127, on 15 July 1957, 85th Cong., 1st sess., Congressional Record 103, pt. 9: 11,683; Senator Byrd, speaking on HR 6127, on 16 July 1957, 85th Cong., 1st sess., Congressional Record 103, pt. 9: 11,817; Senator Russell, speaking on HR 6127, on 18 July 1957, 85th Cong., 1st sess., Congressional Record 103, pt. 9: 12,073–74; Senator Talmage, speaking on HR 6127, on 28 August 1957, 85th Cong., 1st sess., Congressional Record 103, pt. 12: 16,216.
73. Senator Ervin, speaking on HR 6127, on 8 July 1957, 85th Cong., 1st sess., Congressional Record 103, pt. 8: 10999–11000.
74. Ibid., 10997; ibid., on 10 July 1957, 11201.
75. Senator Ervin, speaking on HR 6127, on 8 July 1957, 85th Cong., 1st sess., Congressional Record 103 pt. 8: 10998.
76. Ibid., 10995; ibid., 10999; Senator Ervin, speaking on HR 6127, on 10 July 1957, 85th Cong., 1st sess., Congressional Record 103 pt. 8: 11201; Senator Ervin, speaking on HR 8315, on 10 March 2019, 85th Cong., 2nd sess., Congressional Record 106, pt. 4: 5157.
77. Senator Ervin, speaking on HR 6127, on 8 July 1957, 85th Cong., 1st sess., Congressional Record 103 pt. 8: 10966.
78. Senator Ervin, speaking on HR 6127, on 10 July 1957, 85th Cong., 1st sess., Congressional Record 103 pt. 8: 11203–4.
79. Article 3, section 2, of the Constitution says: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made … under their authority.” Article 3, section 2, also says that “the trial of all crimes, except in cases of impeachment, shall be by jury.”
80. Senator Ervin, speaking on HR 6127, on 8 July 1957, 85th Cong., 1st sess., Congressional Record 103 pt. 8: 11001.
81. Ibid.
82. Chris W. Schmidt, The Sit-Ins (Chicago, 2018), 152–67, provides an insightful analysis of the intersecting legal and political issues surrounding the 1964 Civil Rights act.
83. Finley, Delaying the Dream, 239–40.
84. Ibid., 255–60.
85. Ibid., 253.
86. Senator Hill, speaking on HR 7152, on 9 March 1964, 88th Cong., 2nd sess., Congressional Record 110 pt. 4: 4759; Senator Hill, speaking on HR 7152, on 11 May 1964, 88th Cong., 2nd sess., Congressional Record 110 pt. 8: 10,524; Senator Byrd, speaking on HR 7152, on 20 May 1964, 88th Cong., 2nd sess., Congressional Record 110 pt. 9: 11,522. Finley, Delaying the Dream, 257.
87. Schmidt, “Defending the Right to Discriminate.”
88. Ibid.
89. Ervin, “The United States Congress,” 3–15.
90. US Congress, Senate, Committee on the Judiciary, Civil Rights the President’s Program, 304. At other moments, Ervin directed the attorney general’s attention to a legal treatise that in his opinion “correctly state[d] the fundamental principle of constitutional construction,” or interpretation: “to give effect to the intent of the framers of the organic law and of the people adopting it.” Thus to determine the meaning of the Fourteenth Amendment, Ervin continued, “We must ascertain the intent of those who framed and ratified it.” Id at 180.
91. Ervin, Sam J. Jr., “The Role of the Supreme Court as the Interpreter of the Constitution,” Alabama Lawyer 26, no. 4 (October 1965): 389–99Google Scholar.
92. Ervin, “United States Congress and Civil Rights Legislation,” 4. Title II was upheld 9–0 in Heart of Atlanta Motel, Inc. US, 379 US 241 (1964) and Katzenback McClung, 379 US 294 (1964).
93. Ibid., 3.
94. Ibid., 4.
95. Ibid., 8, citing Wickard Filburn, 317 US 111 (1942).
96. Ibid., 7–10.
97. Ibid., 10.
98. Ervin was not alone in adopting this strategy. Schmidt, The Sit-Ins, 163.
99. Ervin, “United States Congress and Civil Rights Legislation,” 10.
100. Ibid.
101. Ibid., 9–10, citing Robert Bork, “Civil Rights—A Challenge,” New Republic, 31 August 1963, 21–22.
102. Ibid., 10.
103. Finley, Delaying the Dream, 259–60.
104. Ibid., 275.
105. Ibid., 274.
106. Kruse, White Flight, 251–53; Lassiter, Matthew D., “Political History Beyond the Red-Blue Divide,” Journal of American History 98, no. 3 (December 2011): 760–64CrossRefGoogle Scholar.
107. As a result of the act, the percentage of registered black voters climbed from 24.4 percent to approximately 60 percent between 1964 and 1969. By 1970, there were more than one million black voters registered in the South. Hugh Davis Graham, Collision Course: The Strange Convergence of Affirmative Action and Immigration Policy in America (New York), 26.
108. Ervin, Sam J. Jr., “The Truth Respecting the Highly Praised and Constitutionally Devious Voting Rights Act,” Cumberland Law Review 12, no. 2 (1981–82): 261–81Google Scholar; Ervin, Sam J. Jr., Preserving the Constitution: The Autobiography of Senator Sam J. Ervin, Jr. (Charlottesville, 1984), 178Google Scholar.
109. Kruse, White Flight, 253–55; Lassiter, “Political History,” 760–64.
110. US Congress, Senate, Committee on the Judiciary, Nomination of Warren E. Burger, of Virginia, to be Chief Justice of the United States, 91st Cong., 1st sess., 1969, 38, in The Supreme Court of the United States: Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Community, 1916–1972, vol. 7, comp. Roy M. Mersky and J. Myron Jacobstein (Buffalo, 1975).
111. Ibid.
112. Ervin, Sam J. Jr. and Clark, Ramsey, Role of the Supreme Court: Policymaker or Adjudicator? (Washington, DC, 1970), 8Google Scholar.
113. Ervin, “Judicial Verbicide,” 241.
114. Ibid., 239.
115. US Congress, Senate, Committee on the Judiciary, Civil Rights the President’s Program.
116. Brief for Sam J. Ervin Jr. et al. as Amici Curiae Supporting Respondents, Swann Charlotte-Mecklenburg Bd. of Educ., 402 US 1 (1971), 1970 WL 136786, at 22.
117. Ervin, Preserving the Constitution, 164.
118. Kruse, White Flight, 253–55; Lassiter, “Political History Beyond the Red-Blue Divide,” 760–64.
119. Campbell, Senator Sam Ervin, 255; ibid., 256; ibid., 274–75.
120. Ervin, Preserving the Constitution, x.
121. Brief for Americans for Public Schools et al. as Amicus Curiae Supporting Respondents, Flast Cohen, 392 US 83 (1968), 1967 WL 113850; Ervin, Sam Jr., “Mrs. Frothingham and Federal Aid to Church Schools,” North Dakota Law Review 43, no. 4 (Summer 1967): 691Google Scholar.
122. Ervin, Sam J. Jr., “Uncompensated Counsel: They Do Not Meet the Constitutional Mandate,” American Bar Association Journal, 49, no. 5 (May 1963): 435Google Scholar.
123. Ervin, Sam J. Jr., “The Legislative Role in Bail Reform,” George Washington Law Review 35, no. 3 (March 1967): 429Google Scholar; Ervin, Sam J. Jr., “Foreword: Preventitive Detention: A Step Backward for Criminal Justice,” Harvard Civil Rights and Civil Liberties Law Review 6, no. 2 (March 1971): 291Google Scholar.
124. Campbell, Karl E., “Preserving the Constitution, Guarding the Status Quo: Senator Sam Ervin and Civil Liberties,” North Carolina Historical Review 78, no. 4 (October 2001): 457–82Google Scholar.
125. Ervin, Sam J. Jr., “Miranda Arizona: A Decision Based on Excessive and Visionary Solicitude for the Accused,” American Criminal Law Quarterly 5, no. 3 (Spring 1967): 125Google Scholar; Ervin, Preserving the Constitution, 146–47; ibid., 126–27; Roe v. Wade 410 US 113 (1973).
126. Sam Ervin Jr., Address to the Board of Directors of the National Association of Manufacturers, 20 September 1968, Ervin Papers, Series B, Folder 695; Clancy, Paul R., Just a Country Lawyer: A Biography of Senator Sam Ervin (Bloomington, 1974), 248Google Scholar.
127. Senator Ervin, speaking on S J Res 148, on 20 September 1966, 89th Cong., 2nd sess., Congressional Record 112, pt. 17:23122–45. Ervin made no explicitly originalist claims in the speech because the debate was over a constitutional amendment and there was thus no dispute over the meaning of the Constitution. But Ervin’s deference to the judgment of the founding fathers on the importance of the separation of church and state is clear.
128. Senator Ervin, speaking on S J Res 148, on 20 September 1966, 89th Cong., 2nd sess., Congressional Record 112, pt. 17:23122.
