A Letter from Duke University, Durham, NC

Ervin’s Initial Letter to Paschal

December 16, 1963

Dr. Francis Paschal
Duke University Law School
Durham, North Carolina

Dear Francis:

My attention has been called to an account in the Greensboro Daily News for December 10, 1963, of a speech you made before the North Carolina College School of Law on December 9. I enclosed a copy of this account.

Many years ago I read the following epigram of Elbert Hubbard: “Never explain. Your friends don’t require it, and your enemies won’t believe you anyway.”

I am going to violate this advice for the second time in my life. I do this because I know that you wish to be accurate in what you say. The account of this speech convinces me that perhaps I should have established some kind of public relations service, which I do not now have.

This newspaper account quotes you as having said, in substance, that I was first attorney for North Carolina in the school segregation case and that I refused “out of hand the Supreme Court’s statesmen-like solicitation of advice as to how the decision reached might be implemented.”

As a matter of fact, I had no connection whatever with the school segregation case.

To be sure, I have never considered that case to reflect any statesmen-like attitude on the part of the Supreme Court because the decision in the case was wholly inconsistent with the legislative history of the 14th Amendment, which I have studied in detail. Moreover, it was inconsistent with at least 70 prior court decisions handed down by the Supreme Court of the United States itself, and the State and Federal courts in all areas of the nation. Furthermore, it was wholly inconsistent with the interpretation placed upon the 14th Amendment by all Presidents and all Congresses down to May 17, 1954.

Frankly, I have never regarded that decision with any degree of approbation or veneration. This is true because I cannot escape the abiding conviction, which is intellectual rather that emotional, that the Supreme Court of the United States usurped and exercised the power to amend the Constitution when it handed down that particular decision. While the Supreme Court has the power to interpret the Constitution, which is the power to ascertain its meaning, it does not have the power to amend the Constitution, which is the power to change its meaning. It can be that you may be of assistance to me on this point. Evidently, I stand in need of such assistance because I am old-fashioned enough to believe that George Washington was right when he said in his Farewell Address to the American people that it is just as important to preserve constitutional principles as it was to originate them, and that the meaning of the Constitution should never be changed except by an amendment adopted by the procedure set out in the Constitution itself. He added that the meaning of the Constitution should never be changed by usurpation because ‘usurpation is the customary weapon by which free governments are destroyed.”

Here is where I need assistance. In my judgment, the usurpation of government power is reprehensible. If one form of usurpation is more reprehensible than another, it is usurpation exercised by judges who hold office for life and are beyond the reach of the people.

I think you and I agree that usurpation of governmental power is reprehensible when it is practiced by an executive officer or a legislative body. Can it be that I am wrong in thinking that it is also reprehensible when indulged in by a judicial tribunal?

The Greensboro Daily News quotes you as having said that “except for Senator Ervin’s investigation in respect to Indians, his record is largely one of negation.” I interpret this to refer to what you conceive to be my record in regard to civil rights.

For several years, I have been privileged to serve as Chairman of the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary. Prior to my assignment to this chairmanship this Subcommittee convined [sic] its activities solely to consideration of bills undertaking to confer so-called civil rights upon Negroes. It was not concerned with the constitutional rights of any other segments of our population. Under my chairmanship, it has conducted hearings in respect to all so-called civil rights bills of this nature. It has also conducted extensive hearings into the constitutional rights of servicemen, the constitutional rights of the mentally ill, the constitutional rights of Indians, the constitutional rights of the general public to know what their government is doing, and many other problems.

Despite the fact that I know that self-praise is half scandal, I will assert that the Subcommittee has be highly praised for each of these exhaustive investigations. As a result of our investigations into the constitutional rights of the mentally ill, we have prepared a bill applicable to the commitment of the praised by hospital administrators, judges, and lawyers concerned with problems of mental hygiene, physicians, and psychiatrists as the most enlightened legislative proposal made in this field. This bill will probably be reported to the Senate for action early next year.

As a result of our investigation into the constitutional rights of servicemen, the various branches of the armed services have made substantial alterations in their regulations with a view to insuring that men in military and naval service be accorded substantial constitutional rights in respect to disciplinary matters, court-martials, and kinds of discharge. As a direct result of these hearings, we have been able to secure the passage of a law which gives to all servicemen, except those actually in service on ships, the statutory right for the first time in American history to make an election as to whether they will take a court-martial or non-judicial punishment in minor offenses. The investigation of the constitutional rights of servicemen was also of material aid in securing the adoption of the amendments to the uniform of military justice which modernize non-judicial punishment in the armed forces. We held hearings on these amendments and piloted them to give passage through the Senate. As a result of my amendment to give servicemen the election between being court-martialed and receiving non-judicial punishment for minor offenses, and the amendments to the uniform code of military justice court-martials in the armed forces have been reduced approximately 50%. This is of material importance to servicemen as well as the armed forces themselves because non-judicial punishment is not recorded on the servicemen’s record while court-martials are.

Our investigations into the constitutional rights of Indians has discovered the tragic fact the most Indians are denied the benefit of any constitutional rights. As a matter of fact, my attention has just been called to the statement of an attorney of the United States District Court in the far west which mentions and commends our investigations in this field. I have every hope that these investigations will result in remedial legislation for Indians.

Our investigations into the constitutional rights of the general public to know what the government is doing has resulted in the widely approved bill, co-sponsored by Senator Long, of Missouri, and myself, and others, which is designed to minimize the withholding of information from the public by executive agencies and departments of the Federal government.

I express these things in detail because I know that you wish to be accurate in what you say.

I am also taking the liberty of enclosing a photostatic copy of some pages from a book on representative speeches which is edited by one of our great educators.

As this book indicates, my activities in the field of civil rights have not been entirely negative even though I oppose all of these bills as unnecessary in all respects and unwise and unconstitutional in many aspects. During the past summer, I held colloquies with the Attorney General of the United States in respect to the civil rights proposals submitted by the President in June. As a result of my colloquies with him, the administration has abandoned this bill because of its patently unconstitutional provisions and is now backing a new bill which has eliminated at least a score of the matters to which I raised objection on constitutional and administrative grounds in my colloquies with the Attorney General. The original proposals submitted by the administration in June were evidently drawn by people who never even heard of the due process clause of the 5th Amendment.

I am taking the liberty of enclosing several statements which I have made on subjects of this nature during the present session of Congress.

I have just one comment with reference to your statement concerning my attitude toward voting by Negroes. I have always maintained that every qualified person of any race should be permitted to register and vote, and that any local election official who wilfully [sic] denies him this right should be prosecuted. The truth is that there is no occasion whatever for the passage of any new Federal laws on the subject of voting.  The Attorney General already has five separate statutes at his disposal in this field. Three of them are criminal statues, and two of them are civil statutes. The three criminal statutes are embodied in Sections 241, 242, and 372, of Title 18. The civil statutes are embodied in the Civil Rights Act of 1957 and the Civil Right Act of 1960. These two civil statutes authorize equitable proceedings and trial by Federal District Judges without juries. Any competent lawyer can take these two civil statutes and secure the registration of any qualified voter anywhere in the United States. In my honest opinion, the agitation for further legislation in the field of voting rights is wholly political in purpose. In addition to the five statutes available to the Attorney General, any individual wronged in this field has two additional statutes at his disposal. They are embodied in Sections 1983 and 1985 of Title 42 of the U.S. code.

I wish to assure you that this letter is written without anger or irritation on my part. As a public official, I recognize fully the right of anyone to criticize me for any official action I take or any views I entertain in respect to legislative matters. I take the occasion to violate Elbert Hubbard’s epigram for the second time in my life merely because I have the highest respect to your intellectual integrity, and known that you wish to be free from error in any utterances you make.

In closing, I wish to confess that I have criticized the United States Commission on Civil Rights because of some of the foolish recommendations it has made. I have never made any personal attack upon any of its members of officials. Besides, I have never said anything at any time or in any place derogatory to the North Carolina Advisory Committee on Civil Rights or any activities in which it has ever been engaged.

Sincerely yours,

Sam J. Ervin, Jr.

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