One Small Problem with “Constitutional Sheriffs”: Everything They Stand for is Unconstitutional

Have you noticed that the people most likely to proclaim themselves Christians — usually with boorish displays of piety — are the least likely to behave like Jesus would have? Have you noticed that the people most likely to proclaim themselves patriots — often while indulging vulgar tribal rhetoric — are the least likely to embrace people of all backgrounds who also happen to be their fellow Americans?

In that same vein, have you noticed that the people most likely to crow about ‘getting back to the Constitution’ — often while betraying themselves as unlettered at best or illiterate at worst — are the least likely to have read and understood it?

We seem surrounded by plastic-Jesus worshiping “Christians,” sleeveless-flag-wearing “patriots,” and academic-book-burning “scholars.”

ClarkeThe self-styled “Constitutional Sheriffs,” who stepped before the klieg lights after Donald Trump pardoned one of their number (Joe Arapio) and shilled for another (David Clarke) — both during the worst rain event in US history — are no different. The name raises grave suspicions, and those suspicions, it turns out, are warranted.

In a recent piece for Esquire, Charlie Pierce (one of the best political writers alive), noted that Donald Trump

has adopted at least through his actions the politics of the “constitutional sheriffs” movement. This is a profoundly disturbed vision of democracy whereby the local sheriff is presumed to be the highest legal authority within a jurisdiction. Therefore, they are empowered to interfere with even the lawful authority of state and federal officials. (The actions of the Bundy bunch, recently acquitted in federal court, were based in this theory.) Both Joe Arpaio and David Clarke are adherents of this movement and, with a hurricane bearing down on Houston, the president* found time to pardon Arpaio and to plug Clarke’s new book-like product on the electric Twitter machine.

Here are the two ‘constitutional’ precepts of this movement: 1) that local and state law-enforcement officers are not answerable to federal authority, and 2) that municipal or county law-enforcement officers are not even answerable to state authority exercised above the local level.

Again, these two pillars of the movement’s belief system are claimed to be constitutional principles. Ahem.

I. Federal Power

The Supremacy Clause

Here’s the second clause of Article VI of the United States Constitution:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

Did you catch that? Because Arpaio and Clarke apparently missed it. Federal laws — the laws of the United States — are superior to any state or local statute or ordinance, whether the “Constitutional Sheriffs” like it or not.

According to the Southern Poverty Law Center, “[I]t appears the movement is successfully exploiting concerns about gun, environmental and land-use regulations to bring law enforcement officers into the fold.” So these sheriffs think that the federal government can’t regulate guns, protect the environment, or own or regulate federal land.

Poor snowflakes. I have some bad news.

The Commerce Clause

Article I, Section 8 of the US Constitution enumerates (lists) the powers of Congress, and also gives Congress some leeway by permitting it to use any means necessary and proper (meaning appropriate) to carry out those enumerated powers.arpaio3

Among those powers is the authority to regulate “commerce among the . . . states.” This power has always been understood to include congressional (federal) jurisdiction over the channels and instrumentalities of commerce. “Channels” includes navigable waterways, air corridors, highways and roads, and railways, to name some. “Instrumentalities” includes vessels, aircraft, and land-borne vehicles of all kinds. Even Justice Clarence Thomas agrees that Congress has the power to regulate these things. Let me repeat that, this time with emphasis: even Justice Clarence Thomas agrees that Congress has the power to regulate these things.

So environmental regulations, insofar as they touch upon things like air corridors and waterways and vehicle emissions, are clearly regulable by the federal government, and it’s not even a close call.

And every justice other than Thomas agrees that Congress also has the power to regulate any activity that has a substantial impact on interstate commerce, regardless whether it’s directly related to channels or instrumentalities. That means that 8 of the 9 justices (those would be the people constitutionally empowered to decide federal-power questions) agree that the federal government is empowered to regulate the national gun market, and especially any guns that have crossed state lines in interstate commerce (and that would be all of them).

The Property Clause

As to the belief that the Constitution doesn’t permit the federal ownership of property, Section 3 of Article IV of the United States Constitution provides,

The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States . . .


II. State Power

The Tenth Amendment

The Tenth Amendment creates three spheres of sovereignty: federal, state, 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.

This provision is widely regarded as the textual constitutional basis for an authority called state police power — the power of a sovereign state to regulate for the health, safety, and general welfare of its people in areas that are not left to either the federal government (like the power to coin money and raise armies, for example) or to the people (like, according to the Supreme Court, the power to make decisions about reproduction, family living, or medical treatment, for example).

So, to repeat, there are three sovereigns under our Constitution: the people, states, and the United States. Guess who’s not sovereign. Yep, that’s right: counties and cities and other subdivisions of states. Those levels of government (including county sheriffs) are the feral dogs in our constitutional framework left to fight over whatever scraps are left to them by the three real sovereigns.

But in the worldview of the “Constitutional Sheriffs,” they — local mobsters with badges — are “sovereign” over 1) the people, 2) the states, and 3) the United States.


It’s a novel theory. It’s also unconstitutional and un-American.