What is the Job of a Sheriff?
This section is a bit detailed, and may be a bit dry to read, so please forgive me and forgive the legal language. It is very important to me, however, that you know where I come from when I say that your rights come 1st, and government comes 2nd. Your rights come first when a Sheriff takes their Oath to uphold and defend the Constitution seriously. This is fundamental to the security of our American way of life. The opposite happens when a Sheriff just "goes with the flow" of government. So how does this actually work?
The Sheriff is a constitutional officer, an executive officer, whose powers and duties are expressly enumerated in the North Carolina State Constitution, Article 7, Section 2. The Sheriff is "the county's chief law enforcement officer, 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."
A Sheriff is elected so that the people have some control over how the laws are enforced. Just as representatives are elected so that the people have some control over how the laws are made. Most importantly, an elected Sheriff's job is to protect the rights of the people. This is stated by the National Sheriffs’ Association,
“The office of the elected sheriff is a time-honored tradition that our nation’s sheriffs diligently protect as the Office of Sheriff represents direct democracy through the right of our citizens to choose their local chief law enforcement officer. Our nation’s sheriffs protect their citizens’ individual rights through the elected Office of Sheriff.”
One way a Sheriff protects the rights of the people is to be an enforcement liaison between the people and the government as a whole, especially when government arbitrarily deviates into centralized power, becomes exploited by special interests, or when government exercises a political ideology that differs from the one it swears to uphold. Socialism would be an example of this.
In the United States Supreme Court case Printz vs US, (1997) a group of American Sheriffs sued the federal government for trying to force chief law enforcement officers, Sheriffs, to enforce federal gun mandates. The Sheriffs reasoned correctly that they are elected to protect their constituents' rights from government overreach, to uphold and defend the Constitution of the United States, first. The Sheriffs also argued that the federal law in question was unconstitutional and that they would not enforce it. The US Supreme Court agreed, and ruled in favor of the Sheriffs, saying,
“The Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the State and Federal Governments would exercise concurrent authority over the people. The Federal Government's power would be augmented immeasurably and impermissibly if it were able to impress into its service - and at no cost to itself - the police officers of the 50 States.” Then, quoting James Madison in Federalist Paper #39, the Court’s Ruling continues, “The local or municipal authorities form distinct and independent portions of the supremacy, are no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.” The Court concluded that, “Our precedent and our Nation's historical practices support the Court's holding today….” That, “Chief law enforcement officers may voluntarily continue to participate….”
There are a number of legal inferences to take away from this Supreme Court ruling;
1. A Sheriff has the authority to exercise constitutional discretion when the rights of the county residents are threatened.
2. The Supremacy Clause applies to federal law confined to the Delegated Powers in Article 1, Section 8, of the US Constitution, and does not apply to any federal law whatsoever.
3. The 10th Amendment to the Constitution is violated when the federal government tries to force local law enforcement to enforce federal laws that are not restricted to Article 1, Section 8.
4. And, most importantly, is that the arbitrary exercise of centralized power within government violates the Separation of Powers in the US Constitution.
As it relates directly to Constitutional discretion, James Madison, the father of our Constitution, defines constitutional discretion as follows,
“It may happen... that different independent departments, the legislative and executive, for example, may, in the exercise of their functions, interpret the Constitution differently, and thence lay claim to the same power. This difference of opinion is an inconvenience not entirely to be avoided. It results from what may be called, if it be thought fit, a concurrent right to expound the constitution."
In like spirit, Thomas Jefferson argued,
"My construction of the Constitution is... that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal."
The Framers of the US Constitution established what is called Concurrent Review through constitutional discretion, as Madison and Jefferson articulate above. However, in 1803, the United States Supreme Court established Judicial Review in Marbury v. Madison, which ruled that the Court itself, will determine the constitutionality of law. But did it really? A reasonable question to ask is, then, is it the Supreme Court's judicial intent to reinterpret this "concurrent right" and thus give the Court itself this sole power? Justice John Marshal articulated in the Court's opinion that, "If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of legislature, the Constitution [...] must govern the case to which they both apply." Basically the Court will be the "final check" on Constitutional Supremacy, that if the Constitution wins, it wins for good. Justice Marshal also went on to say that, "The province of the Court is solely to decide on the rights of individuals, not to inquire how the Executive or Executive officers perform duties in which they have a discretion." This emphatically says that the Court has no jurisdiction or power over an executive officer exercising their Constitutional duty, or power. This is fundamentally important to understand, as it relates to a Sheriff exercising Constitutional Discretion.
So, my argument is this, and I will show more of why down below, that both Concurrent Review, as established by our founders and the US Constitution, and Judicial Review, as established by the US Supreme Court, can and should be a communal enterprise. Judicial Review does not undermine Concurrent Review, it simply adds to it, creating a last and final discretionary review of the constitutional validity of law. In other words, the exercise of both JR and CR is an effort by both a Sheriff and the Courts to secure your rights. Otherwise, if we go by Judicial Review alone, and even the Court itself infers this in the ruling, that the Sheriff's Oath, for example, to uphold and defend the Constitution, as mandated in Article 6, Clause 3, of the US Constitution, becomes a mere formality and leads to centralized power. I believe the Oath should be taken very seriously, and not as a formality. Besides, where is the Amendment that undermines Article 6, Clause 3? There is no Amendment. Precedent does not undermine the Constitutional language, it only interprets it, which Marbury does legitimately, not undermining it. Therefore, Article 6, Clause 3, still stands as the Law of the Land.
Even Supreme Court Justice Joseph Story argued in his Commentaries on the Constitution of the United States (1833) that officers sworn to support the Constitution are “conscientiously bound to abstain from all acts, which are inconsistent with it,” and that in cases of doubt they must “decide each for himself, whether, consistently with the Constitution, the act can be done.”
So, to help validate my view of balancing both Concurrent and Judicial Review, Thomas Jefferson came to accept that Judicial Review could be the "final check" that the Constitution needed to avoid legislative tyranny. However, and this is a big however, he continued to advocate for concurrent review working with judicial review, as it relates to the constitutionality of law within the separation of powers. Jefferson argues plainly,
“Nothing in the Constitution has given them [the federal judges] a right to decide for the Executive, more than to the Executive to decide for them. . . . The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.” (September 11, 1804)
“Our Constitution . . . intending to establish three departments, co-ordinate and independent that they might check and balance one another, it has given—according to this opinion to one of them alone the right to prescribe rules for the government of others; and to that one, too, which is unelected by and independent of the nation.... The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” (September 6, 1819)
The exercise of both concurrent and judicial review is a strong safeguard against laws that potentially sequester the peoples' rights, and/or allows the majority to undermine the rights of the minority. Jefferson called this legislative tyranny. Constitutional discretion is hugely inconvenient for government, however, and for good reason. The exercise of both concurrent and judicial review together does not allow for a "bad law" to be enforced for years and years before it reaches, or if it reaches, the Supreme Court. The legal system today argues that all laws are valid until they are ruled by the court as unconstitutional. This is fallacious, and a corruption of our Rule of Law. This is also far more convenient for government. Recall that Jefferson said it is much better to deal with the inconveniences of too much liberty than to deal with those inconveniences from too little of it.
So, a good example of our own Sheriff exercising Constitutional discretion right now in Lee County is the fact that he has said that he will never take weapons from law abiding citizens, no matter what the State or Federal legislatures do. Be grateful, this is a good and lawful thing. This is Constitutional Discretion/Concurrent Review in action.
What is centralized power? Centralized power is the opposite of the Separation of Powers as set forth in the US Constitution. The Separation of Powers is when the three branches of government checks and balances the power of each other, independently. The Separation of Powers is intended to be inconvenient for government to do what it wants when it wants. Centralized power can be when all three branches of government are working together, in support of the will of the federal government, all the way down to local governments.
Even the 9th and 10th Amendments in the Bill of Rights exist to minimize the exercise of centralized power:
9th - “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Privacy is an example of a right secured by the 9th Amendment.
10th - “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.”
George Washington intimated that, “It is most important, likewise, that the habits of thinking in a free Country should inspire caution in those entrusted with its administration, to confine themselves within their respective Constitutional Spheres; avoiding in the exercise of the Powers of one department to encroach upon another.”
James Madison, the actual author of the Constitution, says, “The powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.” This has not been Amended.
Centralized power is a bad thing. Everything within the scope of our Rule of Law is designed to resist it. A Sheriff, through the exercise of Constitutional Discretion, can minimize the effect centralized power has on individuals in the county. Moreover, when a Sheriff exercises Constitutional Discretion to protect the rights of the people, they are also upholding and defending the Separation of Powers.
The Sheriff's Oath:
What are the sources of authority that incite a Sheriff to exercise constitutional discretion when the rights of constituents are threatened by law? First, it is the sovereignty of the people who elect the Sheriff. Second, it is the US and State Constitution, by way of the Oath. In the US Constitution, Article 6, Clause 3, it reads, in part,
“The Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.”
The Sheriff is an elected, executive officer, a part of the executive branch of government within the State. In Federalist 44, James Madison, as it relates to Article 6, Clause 3, articulates that, "The members and officers of the State Governments, will have an essential agency in giving effect to the Federal Constitution." What exactly is the Sheriff’s Oath? According to the NC Constitution and the NC General Statutes, a Sheriff must swear three Oaths, which are,
a. The first oath is required by Article VI, § 7 of the North Carolina Constitution.
“I, _________________, do solemnly swear (or affirm) that I will support and maintain the Constitution and the laws of the United States, and the Constitution and laws of North Carolina not inconsistent therewith, and that I will faithfully discharge the duties of my office as Sheriff of ______________ County, so help me God.”
b. The second oath is required by N.C. Gen. Stat. § 11-7 and applies to every person elected or appointed to office in North Carolina.
“I, _________________, do solemnly and sincerely swear that I will support the Constitution of the United States; that I will be faithful and bear true allegiance to the State of North Carolina, and to the constitutional powers and authorities which are or may be established for the government thereof; and that I will endeavor to support, maintain, and defend the Constitution of said State, not inconsistent with the Constitution of the United States, to the best of my knowledge and ability; so help me God.”
c. The third oath is required by N.C. Gen. Stat. §11-11 and specifically applies to the Office of Sheriff.
“I, __________________, do solemnly swear (or affirm) that I will execute the Office of Sheriff of _____________ County to the best of my knowledge and ability, agreeably to law; and that I will not take, accept or receive, directly or indirectly, any fee, gift, bribe, gratuity or reward whatsoever, for returning any man to serve as a juror or making any false return on any process to me directed; so help me, God.”
Rights are not limited by law, but by another's rights:
So, the question to ask now is, is the Oath to “support and maintain the Constitution” a mere formality, or is it to be taken seriously? I believe the Oath is to be taken very seriously, and not as a formality. The National Sheriffs’ Association intimates that generally, “A sheriff should always perform his or her duties in accordance with the Constitution of the United States as interpreted by the United States Supreme Court.” Note the Supreme Court case above.
“The true foundation of republican government is the equal right of every citizen in his person and property and in their management.... It is to secure these rights that we resort to government at all.” - Thomas Jefferson
This is what the people in a county elect a Sheriff to do. A competent Sheriff protects the people from not only street criminals, but from criminals in suits as well. Criminals are from every walk of life, and history shows that the criminal element has been strong within areas of government itself since the beginning. Community policing, community involvement, the academic study and inquiry into American jurisprudence for the sound exercise of Constitutional discretion, positive interactions with other areas of government, are just a few areas that a Sheriff works on to minimize the criminal element and to secure liberty and property ownership for the individual.Thus, a Sheriff is under no obligation to any other elected official, office holder, or to a bureaucrat. A Sheriff is held accountable by and obligated to, the people in his/her county, and to the Federal and State Constitutions. All legislation is limited in power by the rights of the people, and a competent Sheriff must see and enforce this. This is the essence of what America is. Thomas Jefferson argues this very well,
"Rightful liberty is unobstructed action according to our own will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law,' because law is often but the tyrant’s will, and always so when it violates the right of an individual.”
Therefore, any government official that swears the Oath and takes it seriously must do their job within the limits of the rights of people, not solely within the limits what the law says.
Just as a Sheriff cannot tell another politician, or office holder how to do their job, neither can another politician or office holder tell a Sheriff how to do their job. This is part of why a Sheriff is elected, because if law enforcement does not have elected, Constitutional discretion via the will of the people, enforcement becomes hugely exploited by arbitrary, government interests.
Because of this Constitutional discretion within the Sheriff's duty, which traditionally threatens centralized power, some State legislators and even the federal government, have tried to rid states of the office of Sheriff. Likewise, many political commentators try to argue the invalidity of a Sheriff's constitutional discretion with fallacious arguments that generally favor centralized government.
It is imperative to understand, that when any government official actually follows the Constitution, they use their constitutional powers to limit the power of other government officials.