Rise of the 'Constitutional Sheriffs'
Two new books dissect the "constitutional sheriffs" movement, which seeks to nullify laws adherents see as unconstitutional.
The Highest Law in the Land: How the Unchecked Power of Sheriffs Threatens Democracy, by Jessica Pishko, Dutton, 480 pages, $32
The Power of the Badge: Sheriffs and Inequality in the United States, by Emily M. Farris and Mirya R. Holman, The University of Chicago Press, 304 pages, $25
In the home stretch of the presidential race, an Ohio sheriff was stripped of his role providing election security after he compared immigrants to swarms of locusts and asked residents to write down the addresses of yards with signs for Democratic presidential nominee Kamala Harris.
Two new books—The Highest Law in the Land, by reporter Jessica Pishko, and The Power of the Badge, by political scientists Emily M. Farris and Mirya R. Holman—argue that such behavior isn't unusual. The American sheriff, they say, is a particularly dangerous vector for a right-wing project to take over the country.
Sheriffs, Pishko writes, "enable and legitimize the far right's ideas, tactics, and political goals." Likewise, Farris and Holman "suggest that the design of the office—and the individuals who serve in it—challenge the central tenets of democracy."
Both books make some welcome additions to the literature on policing. Sheriffs have been understudied compared to major police departments, despite employing a quarter of all sworn law enforcement officers and handling 9 million to 10 million jail admissions a year. Pishko, Farris, and Holman make a convincing case that sheriffs frequently abuse their office without meaningful consequences.
But gauging the threat that sheriffs' politics pose to democracy is a trickier effort.Each book focuses heavily on the "constitutional sheriffs" movement—an effort to recruit sheriffs to nullify laws they consider unconstitutional, such as gun controls and COVID-19 restrictions.
The alleged authority to do this lies in the peculiar nature of the office. In the flowchart of federalism, sheriffs are islands unto themselves. They're not typically under the direct control of mayors, county boards, or governors. They set and pursue their own policies. The "constitutional sheriff" movement claims that, because of this, sheriffs are the highest authority within their jurisdictions when it comes to enforcing the Constitution, higher than any federal agent or even the president—hence Pishko's title.
This is all a result of the office's history. Sheriffs proudly trace their roots back to pre-Norman England's "shire-reeves." British colonists brought the English office of sheriff with them to America, where our ideals and geography transformed it. The colonists' democratic instincts led them to make sheriffs elected positions rather than appointed. As America expanded westward, sheriffs were often the only law enforcement on the frontier, where they earned a spot in the national mythos.
Today sheriffs wear many hats besides Stetsons. They run county jails and provide courthouse security. They perform evictions. They often issue concealed carry licenses and confiscate guns pursuant to judges' orders. In some counties, the office of coroner is folded into the sheriff's department. Many sheriffs never miss an opportunity to explain ruefully that, as jail administrators, they're also their county's de facto largest mental health provider.
The constitutional sheriff movement developed in the 1990s and has ebbed and flowed depending on when fears of federal tyranny flare up on the right, picking up momentum after the standoffs at Waco, Texas, and Ruby Ridge, Idaho, during gun control fights, during the Obama administration, and during the COVID-19 lockdowns. It mingles freely with the militia movement, sovereign citizens, Christian nationalists, and others.
Just as there are conservative "sanctuary counties" for Second Amendment rights, there are liberal sanctuaries from federal immigration enforcement. But Pishko believes this sort of discretion is fundamentally different from right-wing nullification efforts, which she associates with John C. Calhoun and segregationists.
"I do not want to both-sides the issue," Pishko argues. "The threat is coming from the right."
I have to concede the danger of a Marxist takeover of county sheriffs seems remote. Farris and Holman report that sheriffs are statistically more conservative and Republican than the counties they represent, even in places that lean liberal.
It's tempting to attribute this to the fact that no one wants a pacifist sheriff, but other factors are at play. One of sheriffs' biggest selling points is they're local boys—and Farris and Holman's survey confirms this. The majority of sheriffs graduate from high school in the same county they eventually serve. They're often the most well-recognized local officials. They have one of the strongest incumbent advantages in U.S. politics too, usually running unopposed or winning handily until they retire.
Sheriffs say that they don't answer to anyone but the voters of their county, and that if voters don't like them, there's a simple solution. Pishko, Farris, and Holman argue elections fail as an accountability mechanism. Sheriffs typically rise up through their departments, which means the incumbent sheriff has hiring and firing power over potential competitors. Even when sheriffs commit gross misconduct, they often cruise to reelection.
Where the authors run into trouble is trying to untangle fairly mundane opinions on limited government and the Second Amendment from the noxious, conspiratorial strands of the fringe. Pishko settles on the term "far right" to describe the militia members, antivaxxers, and Christian nationalists she encounters at rallies around the country.
"What 'far-right' groups have in common includes an ideology that seeks to return to an imagined state that values Christianity, traditional gender roles, American nativism, and a 'color-blind' form of white supremacy that fails to acknowledge the harms of the past and inequities of the present," Pishko writes. "These adherents also generally believe in libertarian principles: free market capitalism, deregulation, private property and individual liberty without regard to the common good."
Government-skeptical readers will sometimes find themselves gritting their teeth. For example, we learn from Pishko that "support for constitutional sheriffs and hatred for the federal government is especially strong in the rural Pacific Northwest," but the brief descriptions of the Sagebrush Rebellion, environmental wars of the 1990s, and the Bundy standoffs don't capture why there is such deep bitterness over federal land management policies in the West.
Likewise, Pishko describes sheriffs' refusal to enforce gun laws they consider unconstitutional as "engaging in political protest bordering on insurrection by vowing not to enforce democratically passed gun laws." In the same chapter, she notes Republican sheriffs' opposition to the Bureau of Alcohol, Tobacco, Firearms and Explosives' rules banning accessories like bump stocks and wrist braces. But those regulations, which were not enacted through any democratic process, were blocked by federal courts that agreed the agency had exceeded its authority. Are we to feel worse about the nullification cowboys being right than the alphabet soup federales getting it wrong?
To be sure, one tactic of fringe movements is to co-opt a reasonable position and use it to smuggle in more extreme ideas. Sheriffs' increasingly common embrace of bogus election fraud claims, anti-immigrant hysteria, and culture war vigilantism does represent a real threat to regular political order. At the very least, hyperpartisan sheriffs are a menace to constituents who aren't part of a desirable voting bloc.
In 2017 I traveled to Madison County, Mississippi, to report on allegations that the sheriff's department was running unconstitutional roadblocks only in black neighborhoods. I found that generations of black residents in Madison County had felt under siege from the department. I talked to a mother who said her 5-year-old son had started habitually locking doors in the house after watching sheriff's deputies barge into their living room without a warrant and rough up his father.
Sheriffs' culture war grandstanding also distracts them from their job duties. At least 1,000 people a year die in U.S. jails, many of them in barbaric conditions. In Tarrant County, Texas, Sheriff Bill Waybourn won reelection despite 65 people dying in his jail since 2017 and two of his correctional officers being indicted for felony murder.
But while the authors amply document how sheriffs violate the civil rights of residents, that generally occurs because of excessive enforcement, not nullification. For all their bluster about arresting federal agents, constitutional sheriffs have been the dog that didn't bark—so far. The nonenforcement of a law is almost always less of a threat to individual liberty than its dogmatic application. This is an unresolved tension that runs throughout both books. (The authors' most potent counterargument is that conservative sheriffs selectively enforce laws based on a myopic and partisan view of the "good guys" who keep them in office, and thus, say, refuse to confiscate guns in domestic violence cases.)
What to do about sheriffs then? Pishko writes that she is, in essence, a police abolitionist and concludes the best solution is to eliminate the office entirely. (Here we see that tension again—it's hard to argue both that police should be abolished and that sheriffs are committing borderline insurrection by not enforcing federal laws.) Farris and Holman decline to endorse a solution but put abolition on the table as an option, along with reform measures.
Abolishing sheriffs and unpackaging the services they provide would be a tall order, especially since many small towns contract with them for policing. But if The Highest Law in the Land and The Power of the Badge don't fully convince nonlefty readers that sheriffs are the tip of the spear in a far-right power grab, they at least provide a corrective to the myth of the white-hatted American sheriff.
