Conservative Libertarian

At 74, Senator Samuel J. Ervin Jr. looks and sounds like the quintessential Southern Congressman. Jowls drooping and eyebrows cascading, he drawls tall tales about good ole boys back home in hill-country North Carolina. In rambling Senate speeches, he quotes the Bible, Jefferson and Kipling; he opposes most civil rights bills and accuses the Supreme Court of killing the Constitution's meaning by "verbicide." But for all his Claghornian pomp and ceremony, Sam Ervin is no archetypal Southern reactionary. He is in fact one of the Senate's ablest civil libertarians.

As chairman of the Judiciary Subcommittee on Constitutional Rights, Ervin has long taken positions that startle conservatives and liberals alike. Despite his Bible-Belt constituency, he successfully opposed the late Senator Everett Dirksen's proposed amendment that would have allowed voluntary prayers in public schools. "I believe in a wall between church and state so high," says Ervin, "that no one can climb over it." Though a strong law-and-order man, he vainly fought the Nixon Administration's District of Columbia crime bill with its controversial "no-knock" and preventive-detention provisions. He called it "a garbage pail of some of the most repressive, intolerant, unfair and vindictive legislation that the Senate has ever been presented."

Dossier Dictatorship. More recently, Ervin has criticized two institutions that most conservatives hold dear: the FBI and the U.S. Army. He accuses both of snooping on Americans in ways that endanger First Amendment freedoms of speech, thought and privacy. "If we are going to be a free society," says Ervin, "the Government is going to have to take some risks; they can't put everyone under surveillance."

Last week Ervin's subcommittee began hearings on his biggest concern to date: how to safeguard the political liberties of U.S. citizens from what one witness called "dossier dictatorship"--the vast files that are now being computerized by assorted snoopers, ranging from credit bureaus to Army agents, who allegedly concentrate their spying on war protesters. Dramatizing his worries about computers, Ervin displayed two props: a 1,245-page Bible and a two-inch-square piece of microfilm, each containing 773,746 words. "Someone remarked that this meant the Constitution could be reduced to the size of a pin-head," he drawled. "I said I thought maybe that was what they had done with it in the Executive Branch because some of those officials could not see it with their naked eyes."

Linguistic Abomination. Ervin has been a wide-eyed lover of law ever since his childhood in Morganton, N.C. (pop. 13,000). As a boy, he hung around the Burke County courthouse watching his lawyer father argue cases dressed in Victorian cutaway tails. After graduating from Harvard Law School ('22), Ervin married his home-town sweetheart, joined his father's law firm, and polished his oratory as a young state legislator. He once quashed a bill that would have outlawed the teaching of evolution in public schools with the objection that "such a resolution serves no good purpose except to absolve monkeys of their responsibility for the human race."

Appointed to the North Carolina Supreme Court in 1948, Judge Ervin rarely missed a chance to write expansive opinions. After a complex appeal contesting an ambiguous will, he blasted the lower-court judge for having "murdered the king's, queen's and everybody else's English by using the monstrous linguistic abomination and/or." Pondering conflicting testimony in a manslaughter case, Ervin suggested that truth often comes to the biased witness as "the image of a rod to the beholder through the water--bent and distorted." North Carolina lawyers still quote Ervin's opinions because, says one, "it gives a brief more status and authority."

As a freshman U.S. Senator in 1954, Ervin thrust himself onto the front pages with a folksy anecdote underlining his contempt for his Communist-hunting Wisconsin colleague Joe McCarthy. According to Ervin, Uncle Ephraim Swink, a sick, arthritic mountaineer, was called upon to testify to his religious experiences at a revival meeting. Uncle Ephraim remained silent. Finally the minister said, "Brother Swink, suppose you tell us what God has done for you." Uncle Ephraim pulled his crippled body from his seat and replied, "Brother, he has mighty nigh ruint me." Said Ervin: "Mr. President, that is about what Senator McCarthy has done to the Senate."

Fear v. Freedom. Now considered the Senate's ranking constitutional expert, Ervin is aghast that proliferating Government data banks are being fed undigested information on merely "potential" lawbreakers. Last week Ervin heard evidence that assorted public and private agencies now keep ten to 20 dossiers on virtually every American. The dossiers often stress political activities, sexual behavior and credit records, and invite misuse by officials as well as employers.

As Ervin sees it, a free country must take the risk that "a man who has never committed a crime may some day commit one." Lacking probable cause for surveillance, he argues, the Government has no right to secretly record anyone's attitudes toward politics, sex or religion. Ervin hopes that his hearings will lead to federal privacy legislation giving Americans a new right to know what information is being kept about them, and to rebut inaccurate data. If such a right is established, Ervin believes that a new federal agency may be needed to enforce it. In any case, he says, snooping must be curbed. "When people fear surveillance, whether it exists or not, when they grow afraid to speak their minds and hearts freely to their Government or anyone else, then we shall cease to be a free society."

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