US Sheriffs: Preservers of the Last Vestiges of Our Separation of Powers?
Ancient History and Modern Constitutional Powers of American Sheriffs (Part 2/2)
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This essay offers the second part of the history of the American sheriff. The first essay contained a history of the original sheriffs—England’s shire reeves— “the oldest appointment of the English crown.” America’s own sheriffs are a continuation of Britain’s, after which the British variety lost almost all of its power as the US type blossomed.
Now that the federal government has announced ambitions to limit gun rights, amongst many other new powers, a constitution-oriented group of sheriffs—the Oath Keepers—has decided to nullify these laws instead of applying them. It is quite possible that these Rogue Sheriffs represent the last vestiges of federalism and separation of powers meant to protect the citizens from an American tyranny. It is therefore quite fitting that the old West, independent lawman is being revived and updated to help save the American Republic. This article describes their rise, establishment and continuation as perhaps the last bulwark against Washington, DC tyranny.
I. History of Sheriffs of America
A. First American Lawmen—Marshals
After the position of the sheriff in England became the supreme local power, and England grew in global might, the sheriff became an important position throughout the British Empire. Yet the first US law official was not the sheriff, but a marshal in the Chesapeake Colonies, according to the Corrections History website:
The government that took hold in the American colonies was in many respects an adaptive form of English government. The first form of law enforcement on the continent was not the sheriff but provost marshals and marshals who operated under a central authority for military matters from 1625 to 1627.
B. Virginia’s First US Sheriff
This is how sheriffs came to be established in the USA:
In 1634, Virginia was divided by statute into eight shires, or counties. Along with the shire form of government came the administrative position of sheriff. William Stone became the first sworn sheriff in America when he was appointed the sheriff in the County of Accomac. The first sheriffs and other county officials in Virginia were selected from exclusive groups of large land holders within the counties. They were typically the most influential men and were able to hold more than one county office capacity at a time. William Stone served two consecutive terms in 1634 and 1635 and also served as a county commissioner during most of this interval. In 1648, after a distinguished multiple career in local government, Stone moved to Maryland where he was appointed governor by Lord Baltimore.
More specifically, William E. Nelson, in The Common Law in Colonial America, Vol. 1: The Chesapeake and New England 1607-1660, says about the first American sheriffs:
The General Court and the Assembly, as early as 1629, defined petty criminal jurisdiction to encompass “the conservation of the peace so far as is belonging to the Quarter Sessions of the Justices in England, life only excepted.” Three years later, the Governor gave the local monthly courts “the same power as justices of the Peace” in criminal cases, and in civil cases required the courts “to proceed according to the laws of England [in] all causes under ¬£5” sterling. Then, in 1634, Virginia was divided into eight counties, and each of the local monthly courts became county courts. Again there was reference to the counties functioning “the same as in England”; in particular, the General Court provided that “as in England sheriffs” were to be chosen in each county and “to have the same power as there.” The decision to define the powers of local institutions by reference to English law is pivotal to the analysis presented here.
C. A Democratically Elected Sheriff
Following the democratic model, America’s first elected sheriff was William Waters, described here in The Northampton County record of 1651:
That this day Leift. Wm. Waters a gent. Accordige to the Instruccons directed to ye Comissions & Inhabitants of this County By Pluralitye of voyces was nominated & made choyce of to be high sherr of Northampton Counties from this present daye dureinge ye accustomed tyme.
Sheriff Roger Scott, Dekalb County, Illinois outlines developments of the early American sheriff:
The sheriff’s office in America was much less social, had less judicial influence, and was much more responsive to individuals than the English Sheriff. The duties of the early American Sheriff were similar in many ways to its English forerunner, centering on court related duties such as security and warrants, protection of citizens, maintaining the jail, and collecting taxes. As the nation expanded westward, the Office of Sheriff continued to be a significant part of law enforcement. The elected sheriff is part of America’s democratic fabric. In 1776 Pennsylvania and New Jersey adopted the Office of Sheriff in their Constitution. The Ohio Constitution called for the election of the county sheriff in 1802, and then state-by-state, the democratic election of sheriff became not only a tradition, but in most states a constitutional requirement. In the United States today, of the 3083 sheriffs, approximately 98% are elected by the citizens of their counties or parishes.
II. Evolution of American Sheriffs
A. Old West Sheriffs
As time passed, the American sheriffs moved west and evolved in their roles. The sheriff in the old West of America took on extraordinary importance, says Sheriff Buffardi. In 1836, the newly created Constitution of the Republic of Texas formally established these positions:
There shall be appointed for each county, a convenient number of Justices of the Peace, one sheriff, and one coroner, who shall hold their offices for two years, to be elected by qualified voters of the district or county, as Congress may direct. Justices of the Peace and sheriffs shall be commissioned by the President [of the Republic].
For the most part, the office of sheriff continues in the State of Texas mostly as in 1836. Buffardi writes that other places in the West established sheriffs similar to Texas, including California. Isolated areas of the West typically had a sheriffs. By 1861, Colorado laws evolved to an elected sheriff in even its most remote counties, and Wyoming had Governor appointed sheriffs. The Posse Comitatus was established allowing county citizen conscription for law keeping. Typical duties for an old West sheriff included:
As chief law enforcement officer of the county, the sheriff performed diverse duties. In many jurisdictions he served as tax collector, similar to the duties of the colonial sheriff. Also in contrast to its colonial forerunner, the sheriff had to administer corporal punishment, as directed by the courts. The sheriff often times was required to carry out the sentence of death. Rustic executions in the Wild West were performed primarily by hanging an offender. Sometimes sheriffs constructed formal gallows for this purpose, and other times a rope was simply tossed over a stout tree limb to accomplish the execution. Other duties of the office, collateral to the crime fighting duties, were rather mundane and involved the service of process or other civil enforcement functions, that were performed usually under peaceful conditions. Some counties prescribed rather peculiar duties like inspecting cattle, fighting fires, or eradicating prairie dogs. No matter what the specific duties of a community required, universally by the later part of the nineteenth century, the sheriff occupied the preeminent position in law enforcement throughout the West.
B. Job Description of Modern Sheriff
The modern sheriff is found in 48 states, except for Alaska, while Hawaii has a deputy-sheriff. Buffardi describes their role:
The sheriff serves multiple functions, and the roles vary by jurisdiction. In general the roles are: conservator of the peace, jailer, court bailiff, server of court process, tax collector, and in some cases the county treasurer. The sheriff has statutory law enforcement responsibilities in all but nine of the 48 states that have a sheriff, and jail responsibilities in all but four states. According to a U.S. Bureau of Justice Statistics profile in 1993, sheriffs employ a total of 224,236 personnel. About 9 in 10 sheriff’s departments have responsibility for investigating crimes. Departments in jurisdictions with a population of less than 100,000 are more likely to be responsible for investigating violent crimes than in larger jurisdictions. Departments serving a population of 500,000 to 999,999 are least likely to be the primary investigating agency within their jurisdiction for criminal matters
III. Constitutional Powers & Defiant Sheriffs
A. Federal Overreach
Many Americans are today worried with federal overreach on legislation and police powers. For example, the Rand Paul drone filibuster illustrated concern with safety of drone attacks against stateside Americans. American sheriffs are now standing up to this overreach with scintillating constitutional muscularity. This is occurring in the West, where US sheriffs have had their most memorable role.
B. Sheriffs Under US Constitution: 10th Amendment
A sheriff is the top elected local law enforcement official in a county. Upon entering office, they traditionally take an oath of office swearing to defend the Constitution. For example, here is the Polk County, FL Sheriff’s Oath:
I do solemnly swear that I will support, protect and defend the Constitution and Government of the United States, and of the State of Florida; that I am duly qualified to hold office under the Constitution of the State; and that I will well and faithfully perform the duties of Polk County Sheriff on which I am now about to enter. So help me God.
Most specifically, sheriffs find power under the Constitution in keeping with the Tenth Amendment, which reads:
Amendment 10 - Powers of the States and People
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
C. Federalist Papers #51: Madison on Separation of Powers
The position taken by most American sheriffs is that they, not the federal government, are the top law enforcement officials in their locale. This agrees with America’s doctrine of federalism, as described by Constitution author James Madison in Federalist Paper 51, The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments. This states:
In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another.
D. Supreme Court’s Printz v. US: Limitations on Federal Power
Madison’s doctrine of Double Security was later cited by SCOTUS Justice Antonin Scalia, in the case Printz v. U.S. (521 U.S. 898), describing our type of government, with checks and balances:
The great innovation of this design was that “our citizens would have two political capacities, one state and one federal, each protected from incursion by the other…a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it…This separation of the two spheres is one of the Constitution’s structural protections of liberty: “Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front…In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”
IV. Sheriffs & the Doctrine of Constitutional Nullification
A. Nullification of Unconstitutional Law
Americans are becoming increasingly uncomfortable with the growing size and powers of government. Sheriffs are at the forefront of the activism against these depredations. Thomas E. Woods, Jr. penned Nullification: How to Resist Federal Tyranny in the 21st Century to address the issue of how to fight back against federal encroachment into private and state matters. Thomas Jefferson introduced the concept of the remedy of “nullification” in his 1798 Kentucky Resolutions. Woods sums up the notion,
Nullification begins with the axiomatic point that a federal law that violates the Constitution is no law at all. It is void and of no effect. Nullification simply pushes this uncontroversial point a step further: if a law is unconstitutional and therefore void and of no effect, it is up to the states, the parties to the federal compact, to declare it so and thus refuse to enforce it. Nullification provides a shield between the people of a state and an unconstitutional law from the federal government. The central point behind nullification is that the federal government cannot be permitted to hold a monopoly on constitutional interpretation…
Woods comments upon how sheriffs are involved:
Another example of a state challenge to federal power is the Sheriffs First initiative, whereby, with a few exceptions, it would be a state crime for a federal law enforcement official to make an arrest or engage in a search or seizure without first receiving permission from the local sheriff. Locally elected sheriffs, who have some semblance of accountability to the people, might thereby be able to prevent some of the inevitable abuses that have accompanied the increasing centralization of law enforcement in the United States. Anyone concerned for the protection of civil liberties must find great appeal in this movement.
B. Oath Keepers: Alarmed Sheriffs & Acts of Defiance
At least ninety remarkable and intrepid US sheriffs have decided to take on the federal Leviathan and harpoon its outrageous forays attacking our constitutional defenses against tyranny. In The New American article Sheriffs Oppose Encroachment of Federal Agents Into Their Jurisdictions, a movement called the Oath Keepers is detailed:
The mission of Oath Keepers is to encourage members (current and former military and law enforcement) to uphold and protect the Constitution of the United States by refusing to carry out unlawful orders, including any that violate the enumerated powers granted to the federal government in the Constitution.
The Utah Sheriff’s Association on, January 19th, 2013, published the following open letter:
Dear President Obama
With the number of mass shootings America has endured, it is easy to demonize firearms; it is also foolish and prejudiced. Firearms are nothing more than instruments, valuable and potentially dangerous, but instruments nonetheless…We respect the Office of the President of the United States of America. But, make no mistake, as the duly-elected sheriffs of our respective counties, we will enforce the rights guaranteed to our citizens by the Constitution. No federal official will be permitted to descend upon our constituents and take from them what the Bill of Rights—in particular Amendment II—has given them. We, like you, swore a solemn oath to protect and defend the Constitution of the United States, and we are prepared to trade our lives for the preservation of its traditional interpretation.
With an alarming growth in federal size and powers, and with unprecedented ignorance over American history and our kind of government, someone must stand up for our basic civil and natural rights. This has turned out to be the US sheriffs, who like their fearless western forbears, are ready to defend the American Constitution against all usurpation occurring at a local level. God bless and protect them.