Sheriffs and the Constitution

As United States marshals recently attempted to forcibly evict the occupants of a Carlsbad home and subsequently confiscate that property for punitive auction, Eddy County Sheriff Scott London directly intervened on the owner’s/occupant’s behalf. The issue at hand appears to be an alleged failure to pay federal taxes but court documents reportedly indicate that “the owner appealed the case but never had his day in court.” As the sheriff himself noted, “We certainly cannot be selling or disposing of property until due process has been exhausted. I was aware that the case was pending and in appeals.” Though the marshals threatened to arrest Sheriff London for his obstructionism, he nonetheless stood firm and the marshals eventually relented – but with a promise to return in order to enforce an Internal Revenue Service (IRS)-sponsored sale/auction.

Supporting and defending the United States Constitution is undeniably one of the primary purposes of the American sheriff. Arguably, it is the most critical function of the local sheriff, given the very nature of the office relative to other law enforcement officials throughout the land.

The American sheriff is the highest law enforcement authority in his/her jurisdiction (typically a county, but in some instances/locales this extends throughout the state). Generally, only a county sheriff can arrest other intra-jurisdictional state officials, such as chiefs of police and district attorneys. While there exists some considerable debate as to whether or not sheriffs can legally arrest federal officers, I contend they absolutely can pursuant to the Tenth and Fourteenth Amendments, the guarantee of republican form of government provided by the Constitution’s Article IV, Section 4, and the fact that the formative charter grants exactly zero general policing authority to the federal government.

Perhaps most importantly, sheriffs are generally elected officials. Unlike other law enforcement personnel, sheriffs represent the people in their jurisdiction and are thusly answerable only to his/her constituents outside of duly warranted criminal indictment. In the aforementioned republican form of government, the sheriff represents yet another constituent element of the checks and balances of power, this one at the all-important local level. This broad concept is affirmed by the United States Supreme Court (Printz v. United States (1997)):

The great innovation of the 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 obligation to the people who sustain it and are governed by it.” The Constitution thus contemplates that a State’s government will represent and remain accountable to its own citizens (emphasis added).

The opinion further cites James Madison (primary author of the Constitution and America’s fourth president):

The local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.

In the compound republic of America, the power surrendered by the people is first divided between two distinct government, 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.

Further cited:

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.”

Given that the Constitution is incorporated to the States (primarily via Article IV, Section 2) and that the Constitution itself servers as a restrictive encumbrance to the federal government, the sheriff practically serves as the last line of bureaucratic and law enforcement defense against federal encroachments (such as in this reported case). American sheriffs generally swear an oath to uphold and defend both the United States Constitution and the laws and constitution of the state wherein his/her jurisdiction applies. This practice legally and ethically obligates the sheriff to obtain and maintain an intimate working knowledge of the prescribed constitutional relationship between the federal and state governments, and the people therein.

Individual liberty is necessarily a “bottom-up” concept, as is the institution of the United States federal republic. As such, the American sheriff’s importance to the pursuit and protection of individual freedom cannot be overstated. I believe first-generation Americans within the founding States understood this fundamental necessity for local constitutional defense, and consequently institutionalized the office with purpose when forming and confederating the states to and with each other.

The sheriff’s tradition generally originates many centuries ago and considerably predates all American governmental concepts or offices now employed. “With the exception of kingship, no secular dignity now know to English-speaking people is older.” It could be argued that none may be more important.

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