I want to spend a bit more time discussing the role of the sheriff and respond to a few articles that do the same.
One author, in an article for The Washington Post says that “Constitutional sheriffs assert they have the power not only to enforce the law but to be the ultimate arbiters of what the law is in their counties. Contending that this authority supersedes that of all other government officials — including state governors and the president — they refuse to enforce a range of public safety laws, from local mask mandates to state and federal gun laws.” and further that, in order “to protect communities from abusive policing and our democracy from extremists within law enforcement, we must push back on assertions by sheriffs that they are above the law.”
Following the links in this particular article I ran across a swath of other articles critiquing and shaming “constitutional” sheriffs, whilst attempting to draw ties between the Constitutional sheriffs of today and a group of sheriffs, who, during the Civil Rights Era, used their power to support racist policies and refuse to follow desegregation policies.
One of the individuals commenting on the Washington Post article said that law enforcement was never meant to take on the judicial role of interpreting law, but rather enforcing it.
Another said that the concept of interposition, or the idea that a state or lower level of government can interpose (definition: place between or among; to thrust in; to intrude, as an obstruction, interruption or inconvenience.) itself between their citizens and the federal government, was fundamentally racist and built on racist roots.
Another article concludes with the following statement: “Stripped of its constitutional and patriotic rhetoric, the constitutional sheriffs movement should be seen for what it is: an extremist movement comprised of sheriffs willing to abuse their power as law enforcement agents to thwart even modest gun laws. Far from following the Constitution, the movement expresses contempt for the American constitutional system, which has long established a system of checks and balances that gives the people power through their elected officials to enact the laws they want, subject to review by courts that can determine whether laws comply with the Constitution. In this system, we can expect criminals to defy the laws, but we should all be concerned when the lawman goes rogue.”
The concept of interposition was originally born in 1798 in response to John Adams signing of the Alien and Sedition Acts. While the Alien Act made it much harder to become an American citizen, it was the Sedition Act that really sent shock waves through the new country.
According to history.com, “the new law outlawed any ‘false, scandalous and malicious writing’ against Congress or the president, and made it illegal to conspire ‘to oppose any measure or measures of the government’.”
Can someone say arbitrary?
This law, clearly outside of the parameters of the Constitution, triggered Madison and Jefferson to respond. Madison, in a document called the Virginia Resolution, articulated his position on these acts by saying:
“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties; as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorised [sic] by the grants enumerated in that compact, and that in case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the pro[gress] of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them. [emphasis added].”
Hence, the introduction of interposition. Essentially, Madison saw the state as “duty bound” to interpose itself between an unconstitutional federal government and the citizens of the state. This historical context does not mean that interposition or the more dramatic term, nullification, hasn’t been used for unjust purposes (nullification was the primary principle used at the start of the Civil War and was also used to refuse to enforce the Civil Rights Act). Human nature dictates that almost everything has been used for some unjust reason from time to time. However, it’s important to acknowledge that the claim that interposition is a racist principle simply because it has been used for unjust purposes in the past is both a flawed and incorrect statement.
Interposition is an important concept to both know and understand when considering the role of the sheriff because it’s likely one that’ll be used or associated with sheriffs, either by the sheriffs themselves or by the media about sheriffs.
Abuse of Power?
So, with this foundation laid, let’s take a look at the first quote. In it, the author says that “we must push back on assertions by sheriffs that they are above the law.”
Naturally. It would be foolish to say that sheriffs can steal, kill or worse, and not be held accountable for the crimes they’ve committed. Sheriffs are not above the law. However, notice that they don’t swear an oath to the law but to the law above the law, the Constitution. Interesting right? The Constitution is the document that supersedes the law–it governs government.
So, in essence, the sheriff’s position is both to uphold the law and the document that confines that law.
It’s a unique position, as I’ve addressed in a previous article; and one that is open to abuse and misuse. However, that doesn’t change the position. Every position in government is open to abuse and misuse. That’s why we have a system of checks and balances. Relegate the sheriff to a mindless position of merely “following orders”, unable to think at all for him or herself, and you eliminate a critical element of checks and balances. Of course the role will be abused by some who hold it. That’s the unfortunate expectation of all members of government but the hope is that some other portion of government will right the ship. Strip the sheriff of his autonomy and he can never be one that rights the ship.
The article says: “Far from following the Constitution, the movement expresses contempt for the American constitutional system, which has long established a system of checks and balances that gives the people power through their elected officials to enact the laws they want, subject to review by courts that can determine whether laws comply with the Constitution.”
This statement is far from understanding the constitutional system it claims to revere and understand. Yes, the checks and balances are what empower the sheriff to make unjust or just decisions regarding the Constitutionality of laws he’s enforcing — regardless of courts –because pushback is expected from every level of government in this country. That’s what makes it so robust and healthy. Pushback from a sheriff could be what leads the court to look at a law’s Constitutionality in the first place. If the sheriff simply blindly followed the law with no autonomy or understanding of the Constitution for himself, the courts may never have the opportunity to “determine whether laws comply with the Constitution”. That’s the point of ambition counteracting ambition. It forces government to constantly re-evaluate its actions and make sure those actions truly are Constitutional.
The sheriff’s position is critical because, unlike the President, members of Congress, the courts, the governor, members of the state legislatures or members of the state courts, he or she directly impacts the citizens with his or her behavior. All other realms of government simply operate in the theoretical realm, creating and passing laws, then delegating their application to law enforcement.
So, yes… that sheriff better be incontestably sure that the law about which he is to subject his citizens is clearly confined by the Constitution. If there’s an inkling of doubt in his mind, he better take up the mantle of his oath and act as a critical check to the government machine. He better interpose himself between his citizens and the rest of government. But this takes an immense amount of respect for the Constitution and the rule of law.
Today, many sheriffs are struggling to balance the fine line between both being the law and protecting from the law as the law continues to worm its way into almost every aspect of American life. One of the critiques I keep seeing in all these articles is how wrong it is that sheriffs refuse to enforce mask mandates. Without opening this whole can of proverbial political worms, two things come to mind when looking at this from a constitutional rather than political perspective.
Sheriffs represent the law not mandates. I’ve been told by current and former sheriffs and deputy sheriffs that their position is never to enforce anything but law. The next is, the sheriff better know and understand his state’s constitution so that he can be clear about whether or not a law enforcing something like mask mandates would be constitutional and it’s most certainly his prerogative to challenge a law he believes to be unconstitutional according to his state’s constitution.
In all this, I have yet to touch on some specific issues like red flag laws, no-knock warrants, qualified immunity, federal task force teams, drug policy, asset seizure forfeiture…because I’m sure there are plenty of issues on both sides of the political spectrum that many would plead with sheriffs to have immense discretion on when enforcing.
Anyone can say that sheriffs ought to simply enforce all law and leave interpreting to the courts (which wasn’t even a court power to begin with) until the law the sheriff is enforcing is a law they believe to be unconstitutional and unjust, violating their “liberty”.
That’s why we must never look at government and these positions through a partisan lens but rather the lens of the Constitution. Every role has a critical position of being a check and balance to the rest of the system and eliminating one could mean the death of liberty.
The Liberty Belle