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The Constitutional Role of the Sheriff

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I’ve said it before and I’ll say it again. In the United States, those elected to any political office–whether law making, law enforcing or law applying–are all required to swear an oath to protect, support or defend The Constitution of the United States and/or the Constitution of the respective state.

This is unique in world politics because it prescribes that the Constitution is superior, not an individual, office, position or agency. This implies that should portions of the government direct other portions of the government to act in any way contrary to that Constitution, the portion doing the directing is unconstitutional and the portion being directed should refuse to violate their oath, even if that means refusing to follow the government order.

With this as a backdrop, I’m going to dig into the Office of the Sheriff here in the United States. This role predates all other elected positions in the United States and is the “oldest, continuing, non-military, law enforcement entity in history” (sheriffs.org).

Historical Context

When I started deeply studying the office of the sheriff, one of the first questions I asked was, where does the word “sheriff” come from? Everything in the United States, all of our political institutions and offices have some kind of historical or philosophical root meaning to them.

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Upon further research, I discovered that the word “sheriff” comes from the Old English word, “scirgerefa” or “representative of royal authority in the shire”… or more simply, the “shire” “reeve”. Ninth century England was broken up into different swaths of land ruled by different kings. These lands were called shires. Every shire had a reeve or guardian. At first, this position was selected and filled by the serfs as an “informal social and governmental leader”. However, in time, the kings began to appreciate the role and influence of this “shire-reeve” and turned the role into a King-appointed representative to collect taxes and act as the King’s arbiter and representative to the people of that shire. Some of his duties “included keeping the peace, collecting taxes, maintaining jails, arresting fugitives, maintaining a list of wanted criminals, and serving orders and writs for the Kings Court.”

Interesting right? Eventually, this term morphed into the word Sheriff as we know it today. While the job of sheriff has fluctuated over time (mostly because it was dependent on the arbitrary whim of the kings they served under), the basic duties listed above still form the foundation for the role familiar to Americans today.

The first sheriff in the United States is believed to be Captain William Stone. He was appointed in 1634 in Virginia for the Shire of Northampton. However, the first elected sheriff was William Waters in 1652 for the same shire. Notice the use of shire in the United States. Shire comes from the Old English, sir for “administrative office, jurisdiction, stewardship, authority” or specifically, “district, province, county”; however, only a few years after the use of shire in Virginia, Virginia changed the name to county, which comes from the Anglo-French counte, which comes from the late Latin comitatus, meaning, “jurisdiction of a count” or “the domain of a count or earl” (“count” being the Roman term for a provincial governor).

The word sheriff is not mentioned in the U.S. Constitution and at the start of the country only two states, Pennsylvania and New Jersey adopted the Office of Sheriff in their Constitutions, meaning that the role of sheriff was not a “constitutional” position per se. However, after the Ohio Constitution included the Office of the Sheriff as an elected position in their Constitution in 1803, almost every other state followed suit, so that in the United States today, of the 3083 sheriff’s, approximately 98% are elected by the citizens in their county or parishes.

In America, the office of the sheriff has taken a much more democratically influenced role as it is not an appointed position by the king but rather an elected position by the people.

Position and Office

Something I came to learn while discussing the office of the sheriff with a retired sheriff here in North Carolina, is the critical and often overlooked difference between departments and offices. It’s a common misnomer to call the sheriff’s office, the sheriff’s department. However, the Office of the Sheriff is not a department because it is an elected position just like the office of the president or office of the governor. Whoever fills this office is accountable first and foremost to the Constitution of their state, then to the Constitution of the United States and finally to the citizens of his or her county. It is an independent office, meaning that there is no government agency or position who hires or fires the sheriff, nor is there anyone who has the authority to tell the sheriff how he or she is to run their county or carry out his or her positional duties.

According to northcarolinasheriffs.org: (I will be giving specifics according to the powers of the sheriffs in my state of North Carolina. It’s likely that many of these specifics are very similar in other states.)

“The Office of Sheriff is an office provided for by the North Carolina Constitution. Sheriffs occupy an elected office just like the Governor, Chief Justice of the Supreme Court, Attorney General, and numerous other elected officers. In the ‘chain of command,’ elected officers report solely to the citizens within their jurisdiction, and not to any county employee or governing board.”

This affords the sheriff a great amount of discretion and power, in contrast to the local police departments and their Chief of Police who are hired by the city manager, mayor or city council. This means that the city police and Chief of Police are subject to this chain of command and can be hired or fired. The chief then reports to either the mayor or the city manager (depending on the form of city government in place).

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Sheriff’s are subject to the will of the board of county commissioners when it comes to his budget and the number of employees he can have. However, he has discretion over who he hires, who he fires, how he supervises and how he allocates his money.

Since a sheriff has such discretion, the role has been abused many times. There’s a critical difference between being a public servant and an overload. The State Bureau of Investigation, at least in North Carolina, can investigate claims against a sitting sheriff, but only the state coroner has the power to formally arrest a sitting sheriff in North Carolina (Although a deputy can detain a sheriff if a crime is committed. The deputy must then call on the coroner to make an official arrest). This seems to be the norm in most states, although, there are some exceptions.

Every sheriff is afforded at last two deputy sheriffs, who, “under North Carolina law, a sheriff and the sheriff’s deputy are ‘one person’.” In other words, deputy sheriffs are an extension, acting in concert with, the sheriff. They directly represent the sheriff and are molded by the sheriff.

Powers

Per North Carolina law, and North Carolina court precedent, the sheriff is considered the “chief law enforcement officer of the county”. His powers are not specifically enumerated in the North Carolina Constitution, just his office and the requirements to take office (such as a convicted felon cannot be elected to sheriff).

According to American Jurisprudence 2d – Am Jur 2d:

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“Where sheriffs are constitutional officers whose powers and duties are not expressly enumerated in the constitution [as is the case in North Carolina], such powers and duties are proscribed by the common law as modified by the acts of the legislature. … Common law duties are many and varied and encompass more than traditional law enforcement. Thus, the sheriff is generally the chief law enforcement officer of the county, and, as a general rule, sheriffs, within the scope of their respective jurisdictions, are given power, and have the duty, to preserve the peace and public order, enforce the criminal laws, prevent and detect crime, provide security for courts, serve criminal warrants and other writs and summonses, and transport prisoners.”

The powers of sheriffs and deputy sheriffs are further defined by North Carolina Law, the section specifically called North Carolina Sheriffs’ Education and Training Standards Commission, 17 E. The statue states:

“The sheriff is the only officer of local government required by the Constitution. The sheriff, in addition to his criminal justice responsibilities, is the only officer who is also responsible for the courts of the State, and acting as their bailiff and marshall. The sheriff administers and executes criminal and civil justice and acts as the ex officio detention officer.

The deputy sheriff has been held by the Supreme Court of this State to hold an office of special trust and confidence, acting in the name of and with powers coterminous with his principal, the elected sheriff.”

In essence, the sheriff is the “president” of his county. His job is act as the chief law enforcement officer, presiding over his county and any law enforcement officers in his county. He is responsible for the maintaining of the county jail. He is the only officer who acts as a bailiff and marshall of the court. This means that, as bailiff (his deputies being part of this as well), he is responsible for keeping order in the court, looking after prisoners, carrying out arrests on behalf of the court, and issuing writs (orders or commands in the name of the court). As a marshal, he is responsible for finding and capturing criminals on behalf of the court.

However, because the role of “chief law enforcement officer” and “criminal justice responsibilities” are rather vague and broad, the sheriff can use a good amount of discretion when carrying out his duties, as long as he stays within the confines of his oath of office to maintain and defend the Constitution and laws not contrary to the Constitution, both at the state and federal level.

“N.C. Gen Stat 14 – 230 makes it unlawful for a sheriff to ‘willfully omit, neglect or refuse to discharge any of the duties of his office’ and makes an offense punishable as a Class 1 misdemeanor. In addition, the offending sheriff who violates this statue ‘shall be punished by removal’ from the Office of Sheriff”.

Two final notes before I move on. Outside his county, the sheriff is a regular citizen and has no Constitutional authority to perform any of his duties as sheriff as he does in his county.

Further, and I will touch on this in the section “Precedent” below, the sheriff and his deputy sheriffs (nor the city PD) cannot enforce federal law and federal law enforcement cannot enforce local law.

Constitutional Role

Every sheriff and deputy sheriff is required, per the Constitution of their state, to swear three oaths of office, each beginning with the promise to support and maintain the Constitution and laws of the United States and the Constitution and laws of North Carolina not inconsistent therewith.

The reason that the role of sheriff is called a constitutional position is simply this: the position is created by and empowered through the state’s Constitution rather than by a state law. The Constitution supersedes law. Laws can be made, changed, eliminated, and updated anytime, meaning government departments can be made, changed, eliminated or updated anytime.

Not so with the Office of the Sheriff. The Office of the Sheriff is a vital part of the American Republic because it’s one of the only head of law enforcement positions that is accountable to the people. Further, sheriffs and deputy sheriffs are the literal, living, moment by moment, daily application of the Constitution. Every interaction with a citizen must be colored by the Constitution.

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Theoretically speaking, sheriff’s are the embodiment of law and order. We need law and order for liberty to survive; however, since we also know that humans are flawed and in need of government, we know that those same humans in government are also in need of some higher power to confine their power and protect us from government itself. Here enters the office of the sheriff, both empowered to enforce the law as an arm of the government, while also empowered to maintain and defend the document governing their power and to defend their citizens from any portion of government, including themselves, that require them to violate this document–the Constitution. In short, they are the law while also protecting us from the law.

Do you see the fascinating juxtapositional position sheriff’s hold? We need them to enforce the law to ensure peace, stability, safety and therefore liberty. Yet, we need them to be deeply aware of their Constitutional powers and the Constitutional powers of the governments making the laws they are tasked with enforcing so that they can, in turn, protect their citizens from an arbitrary, unconfined government that may want to subject these citizens to unconstitutional, unjust laws.

It’s one thing to simply be an agent of government or an agent of the law, blindly doing whatever one is told to do. It’s another to have a discretionary role as agent of the Constitution. This all depends on mindset, the mindset of whoever holds the office of the sheriff.

This Constitutional mindset requires a willingness to bear a heavy weight, responsibility and self-control. It requires an immense about of respect and love of the law (as Montesquieu would say) on the behalf of sheriffs and their deputy sheriffs. They must revere the Constitution above all else. They must also view their position with the same reverence, realizing the that they could easily be used as the cruel arms of a dictatorial government should they renege upon or forget their oath of office. They are a tyrant’s best asset or a tyrant’s worst enemy. The choice is theirs. Though that choice is only given to them because the choice was ours when we took the somber responsibility of selecting who we wanted to fill this weighty position.

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The office of the sheriff truly is the last line of defense in the American republic. An arbitrary, unconfined government’s power hinges on whether or not the local sheriff enjoys or wants to embrace power as a greedy agent of the “king” or if they don’t. Will they reject such power as arbitrary, unjustified and a violation of their role to maintain the Constitution and protect their citizen’s liberty by upholding the document that confines both their power and the rest of government’s power?

In other words, a sheriff greedy for power will never truly want to uphold nor respect the document confining his power; however, the sheriff who trembles at the gravity and weight of the power he holds and how such power could be used to destroy liberty, and respects the document that confines this power, will make sure that not only he but every deputy sheriff under his command does everything in their power to defend the one thing standing between them and unchecked arbitrary power.

Think of it this way. If the sheriff goes rogue with his power, there are ways to check and reign in that power, both at the state and federal level. If the state and federal government go rogue, who stands between these behemoths of power and the citizens? Who is that last line of defense?

The Sheriff.

If the state and federal government go rogue, and the sheriff refuses to follow suit, the sheriff and his deputy sheriffs truly are the last line of defense standing between liberty and tyranny.

Precedent

In 1993, Congress passed the Brady Handgun Violence Prevention Act, or the “Brady Bill” which required that local law enforcement officers (sheriffs and chiefs of police) to investigate the backgrounds of all citizens who wanted to purchase a handgun. In other words, the federal government, via federal law, was requiring local law enforcement to enforce federal law.

Again, remember what I mentioned above. Our country was established on the principle of federalism, meaning that there is dual sovereignty in the way governments write and implement law. It is incumbent upon the federal government to enforce federal law and incumbent upon local government to enforce local law. (There are federal task forces that contract with local law enforcement, but that is another topic to be explored at a different time). The two realms of power cannot be conflated.

According to the Center for the Study of Federalism:

“Shortly after the Brady Bill was enacted, two local sheriffs—Jay Printz from Ravalli County, Montana, and Richard Mack of Graham County, Arizona—filed lawsuits challenging the constitutionality of the Brady Bill provisions that required them to conduct background checks on prospective gun buyers. They argued that the federal government could not mandate state and local governments to implement federal policy because the Tenth Amendment to the Constitution reinforces the notion of a limited federal government and guarantees state sovereignty from such mandates.

In 1997, the U.S. Supreme Court decided the issue in Printz v. United States. The Court agreed with Printz and Mack, and invalidated the mandatory background check provisions. Writing for the 5–4 majority in the case, Justice Antonin Scalia concluded, ‘The federal government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program’.”

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Consider the weight, the responsibility, these sheriff’s were willing to carry as both arbiters of the law and protectors of the Constitution against the law. They had to know the limits of the federal power in order to recognize the arbitrary power they were being asked to enforce.

Conclusion

I’ve given you the tip of the ice-burg here. There’s more to the office of the sheriff as well as the departments of law enforcement than I can cover in one blog post.

But what I hope to emphasize in this article is the gravity of the role. It holds more weight than perhaps any other office in government. Consider. If a president, member of Congress, or governor goes rogue, the sheriff–much like Sheriff’s Printz and Mack–can protect their citizens from such power grabs. But if the sheriff joins hands with the rogue and unlawful power of these branches of government, there truly is nothing to stop from drowning in the flood of tyrannical arbitrary power.

Sheriffs, you can both make or break liberty in this country. Citizens, you can both make or break liberty in this county by who you choose to be sheriff. Liberty weighs in the balance and knowledge of the Constitution is what tips that balance in liberty’s favor.

The Liberty Belle

10 thoughts on “The Constitutional Role of the Sheriff”

  1. Before , I , reply this was a very good explanation of the sheriffs office , please examine Michigan A G Opinion #6066 and the case law outlined with in if time allows . Thanks , Ron

  2. You stated it perfectly in the very first sentence. “In the United States those elected to any political office ——whether law making, law enforcing or law applying are all required to swear an oath to protect, support and defend the Constitution of the United States and / or their respective states.”

    It does not suggest that anyone or any one entity is “the last line of defense” over the others nor does it suggest the Sheriffs department “holds more weight than any other office in government.” In fact if anything the Sheriffs department would be the first line of defense since it is usually the first on the scene of a situation and they determine whether the State or Federal authorities need to be alerted. The Prinz vs United States example given was poor because it wasn’t as much the two Sheriffs protecting the citizen from having a background investigation than it was protecting the federal government from imposing on their workload. To the citizen an investigation is an investigation no matter who does it.

    Contrary to the Prinz ruling in 1997 how many times have you heard in the past 25 years that the Federal government is with-holding funds from the states unless they meet certain criteria? Or they are passing a Federal law which requires the states to fund it? When the government over-steps their Constitutional bounds it is up to the elected official involved to take it to the courts which are there to clarify or rectify the situation.

    Lastly the use of the word the government going “ROGUE” has connotations of violent unconstitutional actions. It should be used sparingly and apply to the case as in President Trump attempting to invalidate millions of votes from 7 swing states for no valid reason.

    1. Bob and Chris , when you have time can you both please go to 12-26-2021 11:08 PM on the Christmas messages , in that long reply , I try to explain how decision makers make decision and authority up here at the sheriff’s office , not accusing but surely a question of why and who ? makes decisions in our county government , this is UN–constitutional at best “” to shredd a report” the county prosecutor advised a local elected official to make to a county sheriff’s office ? so not to look bias ? or conflict of interest ? in return tell me I can be arrested for for being at my road side mailbox ? a county R O W , enforceing a restraining order from 3-30-2006 tossed out on 9-12-2006 for being devoid of merit , still the restraining order is used at present as a tactic to intimidate my elected position and abiding to the oath to the constitution not the local big government , odd thing is Chris , I have been waiting for a response from Sheriff Mack for weeks , Bob and yourself are true constitutionalist providing so much then any others . Thanks , Ron

      1. Ron: I reread your post of 12.26.2021 as you asked and I don’t know what to tell you concerning your situation. I’m not a lawyer nor will I even attempt to give any legal advice as a friend. I can only suggest you talk it over with family members or other people in the community who understand and are affected by the situation as you are. Perhaps you can consult a public legal aid up there. I’m sorry but unlike many on the internet today I refuse to play keyboard lawyer. I’m simply not qualified.

        A “true Constitutionalist” hardly. As you can tell I write using what I observed happening in the past for the many examples of the hypocrisy or double standards. I don’t have anywhere near the education that Chris has and I don’t pretend to. I may engage her ideas but I try not to step on her toes nor steel any thunder from her excellent work. I’m simply an old man who reads a lot and between that and life experience……….well that’s all I have to rely on. Wishing you luck ……………………..”B”

  3. Thanks Bob , by ” true constitutionalist ” meaning all three of us with Chris’s guidance have been able to converse in a way that Chris pointed a couple of months ago in Federalist 51 “If we are going to debate , lets debate what’s real” We “America” are an experiment of ideals of liberty , my opinion is when the experiment comes to an end [ the way double standards , hypocrisy , attempts in invalidating elections , threats of martial law , judicial legislation [ law making from the bench on what direction the wind is blowing ] , and sorry but big centralized government with one or two persons overstepping and everyone else violating their oaths office to give illegal shielding of those that overstep , or their official capacity is not for the people but self interest and private gain , is ending the experiment of ideals , and going to dangerous arbitrary powers . Last nothing wrong with being an old man , it’s one of the reasons of the ongoing battle up here , defending what you fought and fight for , and your insights are appreciated more then you know , just a Chris’s works , I spread her works like a wild brush fire up here in a summer drought , and it is you two that keep me on my situation , hard battle , then again we all have been given that duty to protect the constitution . Thanks Ron

    1. C. McMasters Ph.D.

      Thanks y’all. Always a pleasure reading your thoughts and discussion on here. I’ll respond in more detail soon… just been booked up a lot recently. However, I wanted to jump on here for a second to at least let you know I’m reading these replies and will get to them. 🙂

  4. Pingback: The Constitutional Role of the Sheriff – The Liberty Belle – PatriotNewsSite.com

  5. ironeaglegrail

    “Life, Liberty and the Pursuit of Happiness. We The People of The United States, In order to form A More Perfect Union, Establish Justice, Insure Domestic Tranquility, Provide for the Common Defense, Promote the General Welfare and Secure The Blessings of Liberty to Ourselves and
    Our Posterity(Family) do Ordain and Establish this Constitution for The united states of America

  6. Great article. As the Sheriff is elected by the people of his county, about the only political pressure he feels is that coming directly from the people he serves and protects. Ever since I first saw and heard Sheriff Mack speak in a news report on the case you referenced I’ve had a deep respect for the office of the sheriff.

    I don’t recall the specifics now on which state and sheriff were involved, but an incident happened in one of the western states involving a cattle rancher and an attempted land grab by the federal government. As I recall, there are vast tracks of land owned by the people and ranchers can use the land as long as they have cattle on it. If they don’t have cattle on it, then the BLM can apparently somehow take control of it. (The Constitution gives very little land in each state to the federal government as I recall, just enough for offices or for maritime related functions; correct me if I am wrong.) This attempted land grab seems to me to be another usurpation of power by the feds via a created federal agency of un-elected employees who makes rules that have the force of law.
    The feds wanted to get the rancher’s cattle off the land so they could take control over it. So they claimed his cattle were diseased and they had to quarantine them. The rancher called the sheriff who came out and told the feds that he would quarantine the cattle there on that land.
    The feds reputedly tried to bully the sheriff who stood his ground. They finally threatened to bring out a federal SWAT team. The sheriff responded that he would bring his SWAT team as well and they would see who won.
    There was no chance of that happening because the feds knew the sheriff was legally on solid ground and they were bluffing. I wish I had the specifics of that incident at hand. Perhaps you’re familiar with it.
    I thought it was a great example of the sheriff stopping federal government overreach by protecting the rights of his county residents.

  7. Pingback: Sheriffs Are The Key To Resisting Unconstitutional Gun Control And COVID Mandates - Bob Barr

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