Heather Cox Richardson:

From CAFE and the Vox Media Podcast Network, this is Now & Then. I’m Heather Cox Richardson.

Joanne Freeman:

And I’m Joanne Freeman. Today we’re going to be talking about a movement and the roots behind that movement. What we’re interested in talking about is the constitutional sheriff movement. That’s a phrase, constitutional sheriff, that has been in the news in one way or another in recent, I suppose, months, even years. What we want to talk about today is first of all, what is a sheriff? What do sheriffs actually do? What kinds of powers do they actually have? And thus related to that, what is it that people who claim to be constitutional sheriffs, what are they claiming, and how is that grounded in history or not grounded in history? Now, it’s worth starting out by saying that a sheriff, generally speaking, is the highest law enforcement officer in a county. For the most part, they are elected. There are some that are appointed, but for the most part, that’s an elected office.

Police chiefs, in contrast, tend to be the highest law enforcement officer in cities or municipalities, so the police can be fired by city officials. It’s a different realm, police officers and sheriffs. Sheriffs in that sense as an elected officials have a certain degree of independence. They can be removed from office by being voted out. The duties of a sheriff vary state by state. In most states, they kind of reflect common law powers of a kind that I suppose you could say sheriffs or people much like sheriffs had at the nation’s founding. And that includes things like preserving the peace, preventing and suppressing public disturbances, breaches of the peace, riots and insurrections, arresting and taking before the courts, people who attempted to commit or who committed a public offense, attending court, providing court security and serving court process and administering to county jails.

Heather Cox Richardson:

And it’s worth pointing out, there are a few more than 3000 sheriffs in the country, and it is more likely that you’re going to run into a sheriff if you live in a rural area than if you live in an urban area where again, law enforcement is generally done by the police, who are hired by the municipality as opposed to elected like a sheriff. So sheriffs are in the news in part because under a new concept of the law and the relationship between the law and the people, a number of people calling themselves constitutional sheriffs believe that they are the last word in whether or not a law can be put into effect.

Joanne Freeman:

Now we’re going to be talking about the constitutional sheriff movement today, and more broadly, we’re going to be talking about the position of sheriff and what it has been over time and how that has led to the current moment. But it’s important to say at the outset that when we’re talking about people within the constitutional sheriff movement, we’re talking about a distinctive group of roughly 800 individuals. We are not making claims in this episode that all sheriffs at all times in all ways are in some ways bad people. We are not saying that. We are not talking about sheriffs who are actually upstanding and are doing their jobs well, we are talking about a specific kind of claim that some sheriffs make and what that does to their sense of power and what that sense of power is doing or attempting to do to our larger political system.

Heather Cox Richardson:

So these constitutional sheriffs are claiming that they are the ones who get to decide whether or not laws should be enforced. And they have done so primarily, beginning in the 1990s saying that they should not have to enforce gun regulations, and we’ll talk more about that. But really since the Trump years, they have also stood against the laws that were put in place to answer the coronavirus crisis and increasingly have become election deniers who insist that the 2020 presidential election and some of the elections that have happened after that were not legal and that they refused to recognize them. And as such, they’re starting to amass power bases, especially in Republican dominated areas that are challenging the actual laws of the country. So they’re important right now in terms not only of their legal arguments, but also of their growing base and what those two things say about actual rule of law in America.

Joanne Freeman:

And just to build on that for a moment, to make this clear, because I think when I first started thinking about this in preparation for this episode, this wasn’t necessarily in the front of my brain, sheriff is a position, constitutional sheriff is a claim. That’s a movement.

Heather Cox Richardson:

That’s a really good way to put it.

Joanne Freeman:

Here’s a great example of that idea coming from a man named Richard Mack, who is a former Arizona sheriff, and he now runs the Constitutional Sheriffs and Peace Officers Association. He wrote a book named, this will not surprise you, The County Sheriff: America’s Last Hope. In it, addressing sheriffs, he says, “You are the supreme keeper of the peace. You are the people’s protector. You are the last line in the sand.” He describes a sheriff as a man who can stop the abuse, end the tyranny, and restore the Constitution once again as the supreme law of the land. He goes on in an interview, “Sheriffs standing for freedom have the responsibility to interpose wherever anybody is trying to diminish or violate the individual rights of our counties.”

Heather Cox Richardson:

Well, and this comes directly out of the post 1980 move against the federal government, the idea that militias, the idea that individuals, especially those in the American West, are standing against what they consider a communist government, a socialist government, a corrupt system. They began by centering around the idea that individuals had to stand against this overpowering government, the one that Reagan identified. And that becomes really, again, in popular culture, this overarching tyrannical government that is run by people who are not good Americans and you sought in places like Top Gun that we’ve talked about on this show. But it really takes off after the federal government begins to try to enforce gun safety after the shooting of James Brady and some of the other people who were surrounding Ronald Reagan. And with that attempt to regulate gun safety in the mid 1980s, a number of people, including Richard Mack, sued with the idea that the Brady Handgun Violence Prevention Act violated the 10th Amendment of the Constitution, and that local sheriffs could not be required to enforce federal laws.

In 1997, in a case called Printz versus the United States, the Supreme Court in fact, did say, “The sheriffs did not have to enforce certain aspects of the Brady Bill.” Now, that didn’t actually change that much with the Brady Bill, but what it did is it put wind under the wings of those sheriffs who insisted that they had the right to decide whether or not a federal law or a state law was constitutional. We see this in Illinois where the state legislature passed and Governor J.B. Pritzker signed a new law that requires lawful gun owners to register their weapons with the state of Illinois. And immediately at least seven county sheriffs in the greater Chicago area issued a letter that was pretty much a form letter. They were all very, very similar, if not identical, said that they would not be enforcing that law.

They said that the registration law conflicts with the Second Amendment, they believe, and so they are not going to enforce that law. Pritzker came out and said, wait a minute here, quote, “Sheriffs are entrusted by the public to enforce the law. They don’t get to choose which laws they enforce. They must enforce what we’ve written into the code, the general assembly, signed by the governor, and they will do so.” Clearly putting a line in the sand saying, “You can’t go ahead and write your own laws. You can’t decide what the law is. You have to do what the legislature has told you.” And they of course have come back to say, “No, we don’t.”

Joanne Freeman:

So when we talk about gun safety, passing legislation to improve gun safety, it’s important to bear in mind, it’s not just the legislation itself that we need to be thinking about; it’s the enforcement of the legislation too, that we need to be thinking about. We do indeed have a rule of law in this country. That statement that you just read, drawing the line in the sand, Heather, that’s basically a way of saying, “We live by the rule of law.” There is a rule of law, and that’s not a rule of law as defined by individuals.

Heather Cox Richardson:

It’s defined by your local sheriff.

Joanne Freeman:

Exactly. So we need to weave that into our understanding of the moment that we’re in and the ways in which we deal with this and many of the other crises of the moment is that enforcement matters as much as the legislation itself.

Heather Cox Richardson:

Well, and the reason that this focus on being armed and the focus on refusing the right of the federal government or the state government to pass laws, especially laws for gun safety is significant to me is, it’s part of a larger project. I think sometimes when I think of sheriffs, I think of the sheriff of Nottingham in the Disney production of Robin Hood. And to get from that to the modern day constitutional sheriffs requires a mental contortion that I don’t do easily.

Joanne Freeman:

Yes. No, it’s true. It’s not necessarily something you think of very often except now. Let’s talk a little bit about the position. The fact of the matter is, as with so many things in the United States generally, and in early America specifically, the idea of a sheriff came to the colonies from Great Britain. In Great Britain, there was a position known as the shire-reeve, and reeve is basically like a local official. So a shire-reeve was someone who was keeping guard over the shire, was a sort of keeper of the shire. In colonial America, you ended up with several different kinds of law enforcement and well, many of these are going to be words that you don’t use very often in conversation, but it’s worth saying that for a good long time, law enforcement generally was really not necessarily institutionalized in the way that we assume it is today, for better and worse.

In colonial America, you had constables that were a sort of like an early version of a police officer, and they dealt with things like vagrants sometimes, I’m guessing this is New England. They dealt with enforcing church attendance. You had watchmen, they tended to be in more populous areas, they reported to constables, and they patrolled on foot looking for things like fires, which could take a whole town or city down looking for suspicious behavior. You had slave patrols and by the mid 18th century, much of the south had employed slave patrols whose job obviously was apprehending escaped slaves. They often worked in concert with the other kinds of law enforcement going on at the time. And then finally, last but not least, you had sheriffs who typically were, for a time again in colonial America, appointed by the governor, they tended to center their work in less populated areas. Watchmen tended to be in cities and constable as well, sometimes were in more populated areas. Sheriffs were in more rural areas, and their primary responsibilities were apprehending criminals, assisting the justice of the peace, collecting taxes, and supervising elections.

Heather Cox Richardson:

So my read on these different incarnations of law enforcement in colonial America are that for the most part, the constables, to some degree the watchmen, and the slave patrols, which were not appointed or elected, those were just men in the community, were designed to protect property for the most part, were the sheriffs were more likely to be in charge of enforcing the law itself over rural areas where otherwise the law wouldn’t reach. Is that fair?

Joanne Freeman:

I think with a slight plus, I would say yes to protect property, but as part of that, I guess I would say literally to keep the peace, meaning to make people in a given area feel safe in that area and thus make an area safe for business. So again, related to property in one way or another, but it’s not just protecting property, it’s the broader implications of that too.

Heather Cox Richardson:

But the sheriffs are further out and more likely to be the arm of the law.

Joanne Freeman:

Yes.

Heather Cox Richardson:

Making people pay their taxes, for example, or apprehend criminals who get away from the watchmen to go out in the country and it’s the sheriff you need to worry about if you’ve stolen somebody’s, I was going to say pig, but nobody would’ve had to steal a pig. If you’ve stolen somebody’s, I don’t know, diamond tiara from-

Joanne Freeman:

Horse thief.

Heather Cox Richardson:

Yes, exactly. That’s a great example for where we’re going, a horse thief, yes. And then you have ridden the horse out and the watchman’s not going to come after you and the constable’s not going to come after you. The slave patrol come after you if you’re an enslaved person, but not in the north. And the person you have to worry about is the sheriff.

Joanne Freeman:

During the revolutionary period when colonies became states and they had to actually create their own constitution, since the royal government was booted out of their political system, some states added the office of sheriff into their newly adopted constitution. Pennsylvania did that and New Jersey did that. And here’s what New Jersey’s constitution said about the office of sheriff. It said, “The inhabitants of each county qualified to vote as aforesaid, shall at the time and place of electing their representatives annually elect one sheriff.” So it’s just lumped in there. “You will elect a sheriff.” Again, seen I think as a sort of general peacekeeping way in these new states consisting of new forms of government, a way of keeping the peace.

Heather Cox Richardson:

And an elected way of keeping the peace. I mean, this is going to get us into trouble pretty quickly, but the idea that your law enforcement officer is part of your elected system is going to have a lot of repercussions in the 19th and now in the 20th and 21st centuries.

Joanne Freeman:

You’re right. And at the time, of course, that would’ve been seen as a great democratic innovation, small d. That, these aren’t like important officials who are appointed, they’re popularly elected in one way or another. Like that means, here we are in the new world doing something different from the old world, which is this world of aristocrats and people who inherit offices and people with all kinds of special power. So certainly in the early years that would’ve been seen as something more democratic.

Heather Cox Richardson:

And by the mid 1840s, in fact, that’s exactly the way people thought of them. They were a great triumph of democracy. So sheriffs are elected by county in almost every American state. And in 1844, a man named William Murfree wrote a treatise on the law of sheriffs and other ministerial officers. He talked about the role that being a sheriff had taken on in American society. He said, “The sheriff is, in each of the United States, a constitutional officer recognized as part of the machinery of the state government. And therefore, although it is competent for legislatures to add to his powers or exact from him the performance of additional duties, it is, upon well-established legal principles, beyond their power to circumscribe his common law functions or to transfer them to other officers.” Now, what I find really interesting about that in this moment, Joanne, is that this is the same period in which Americans are playing with the idea that government is really about, as they say, popular sovereignty.

It is literally the exact same decade. And what jumps out to me about the conjunction of those two things is that popular sovereignty was essentially a way to get around the fact that the vast majority of Americans wanted the extension of slavery to stop. So popular sovereignty was a new way to think about democracy, small d democracy, that said that true democracy happened at the local level so that whatever people at the local level wanted was actually the real version of democracy as opposed to obeying the laws of the federal government. And in that case, it seemed especially insidious in that at that local level, of course, the local officers got to choose who could vote. So it’s a real setup of democracy.

Joanne Freeman:

Put that in quotation marks.

Heather Cox Richardson:

Yes, exactly. So it’s a real setup, the idea that democracy is at the local level only and people at the local level shouldn’t have to do what people at the federal level are enacting from a majority of the voters in the country, and therefore they are more democratic than our actual system of democracy. And this will be the thread that’s going eventually to lead to state’s rights and to the secession of the south from the union. The idea of sheriffs being the elected officials who get to make the final calls in those counties arising in this period, I don’t think is coincidental for where we’re going to end up today.

Joanne Freeman:

Nor is the fact that it’s bound up with the idea of democratic rights. Also, this period with the rise of Jacksonian democracy and its growth over this time period, that’s something that people are pledging to, that’s something that people are now praising and addressing and systematizing in a way that they certainly were not doing at the founding. And it makes perfect sense that that movement, that effort bound up with who has power and who doesn’t and who’s enforcing what over who becomes fraught in a number of different ways.

Heather Cox Richardson:

It’s such a moment in American history, that moment where the idea of making participation in our system far more widely spread is predicated on the idea of white supremacy.

Joanne Freeman:

Whenever you have a democratic opening of sorts, certainly in the 19th century, it’s almost always accompanied by blocking out of others who might be seen as rising up with those who are newly allowed in, that when you have a moment that seems more democratic, it becomes really important at that point to block out people who you most definitely don’t want to come in with these new white people who are less wealthy or less influential. So absolutely white supremacy in one way or another always goes hand in hand with a bolstering of democracy.

Heather Cox Richardson:

And especially in this case where the idea of sheriffs at the local level are the ones who are the elected officers to enforce the law. The reason that I’m harping on popular sovereignty and the meaning of that in the idea of what’s going to become the constitutional sheriff’s movement is because I’m a historian and we do things like this.

Joanne Freeman:

The end by Heather and Joanne.

Heather Cox Richardson:

Exactly. But it does matter, as you and I both know, because this whole idea that government should be at the local level because that’s true, small d democracy, we need a better word for that by the way so we don’t have to keep saying small d democracy, is part and parcel of American history since the Civil War because what’s going to happen is this idea of local law enforcement authority taking precedence over the law as it is established in a state house often, but more often at the federal level, is absolutely the theme of the late 19th century and why we have so many images of the sheriff walking down the Main Street or the cow town with some birds flying. Well, that lionization is incredibly important though because in this period, those western figures take a stand in popular culture against the idea of a government that people at the time argue is catering to Black Americans.

Joanne Freeman:

Right. And popular culture ends up being an important sort of indicator here in basically these people who, along with the noise that I just made, this sort of lone sheriff walking on Main Street, looking for people who are violating the law, the myth of the independent moral guardian of the peace like someone like Wyatt Earp is a myth. And what’s important about that, and we’re going to keep coming back to this in one way or another, Wyatt Earp, yes, he was a lawman, he was a deputy sheriff. He was also someone who broke the law, was put in jail a good number of times, who saw himself in one way or another as both enforcing the law and having power over the law. So Wyatt Earp is a lawman and vigilante and deputy sheriff and gambler in the West, in Kansas, in a variety of different states in the west at this time period. He actually moved around a lot in one way or another, looking for ways to have power or to boost his reputation.

He’s meandering around from state to state in the 1870s, a little bit in the 1880s. What’s interesting about Wyatt Earp is the way in which he himself helped to bolster this idea of sheriff as hero, sheriff as lone lawman who alone is responsible for upholding the peace, for getting rid of evil people from town, driving them out. That’s not necessarily what a sheriff was. It’s certainly not necessarily what Wyatt Earp was. He actually ended up in his retirement years living in LA and befriending actors and film directors and among other things, spreading to them this idea of the heroic sheriff in the West. So this figure in popular culture, this figure that even nowadays sort of has lived on as a symbol of one lawman who’s able to uphold the truth and the right and the law that, if it isn’t clear already, that’s really problematic. But it’s a myth that we have tended to just accept when we link it with the old West because it’s the olden times and we don’t think about the implications.

Heather Cox Richardson:

You’re absolutely right, and it is no accident that in the late 19th century we get the rise of both lynching parties and posses. And the word posse comes from posse comitatus, the idea that there are groups of people who rise again at the county level to enforce the law, and America has a really long history of that. But there was an intellectual argument for extra legal groups that took the law to their own hands. And that was true not only in the American South or the other regions of America that had lynching, and it was not only in the American West that you’re talking about, but it was also in the American North. And the argument was that the government had been taken over by, and you can fill in the blanks, somebody we don’t like. What really jumps out to me is Cincinnati, where the argument was that the government had been taken over by immigrants and they had bought off the police officers, as the argument went, and therefore no judge or jury would ever convict criminals, if anything.

It is just an absolutely fascinating intellectual pretzel, if you will. We don’t think the law is being enforced because the people that have been elected to do it by the voters, the judges, the politicians, the system has been corrupted. Therefore, the good guys, if they were often described as the best men or in the West, as you say, the great hero coming in from outside, need to take over the law and restore air quotes again here, “civilization”, restore the law to what it should be. That is becoming a lynch mob is actually upholding the law. A popular concept in the late 19th century when no one quite understands yet the relationship between the federal government and people on the ground, when the situation on the ground is changing really quickly everywhere in the cities because of the rise of urban America in the West, because of the indigenous wars and the spreading of Euro-American settlement and Mexican American settlement over that region in the south because of the huge economic and racial changes in that area.

And so it becomes, as you say, an issue almost of popular culture. We, defining ourselves, are the good guys, therefore, even if you have put those people in office through your votes, you’re just wrong. I wonder, that sounds kind of familiar, doesn’t it?

Joanne Freeman:

Vaguely familiar.

We’re talking certainly for a chunk of the 19th century of white settlers pushing west and creating settlements and pushing indigenous people out. We’re looking at a kind of ongoing rolling wave of people creating towns, creating cities. What that means is, again and again and again and again, you have these areas that in one way or another are finding a way that makes sense to the local populist to enforce some kind of rule of some kind. You have scrambling for power and you have people trying to figure out how these local systems will work in areas where they haven’t been systems of that kind necessarily before.

I remember when I was working on, I think my first book, I interestingly found that again in the mid 19th century, there was a kind of rolling wave of duel outbreaks, people dueling. And typically what happened is that before a town or a city or a state really became entrenched and real and had a government that was systematized, there was a kind of rummaging around moment when people would be really grappling with each other for power and there would be a little outburst of duels and it sort of rolled its way west. And that’s a dramatic way of some of what we’re talking about here, which is really figuring out the law, the system of law, what laws count and what laws don’t, who gets to enforce them and who ends up being victimized by them.

Heather Cox Richardson:

That plays out really powerfully in 1892 to show how this idea of sheriffs and who gets to enforce the law ends up essentially overthrowing a government and enforcing the property ownership of the very wealthiest people in a fairly newly settled region. In Wyoming, what becomes known as a Johnson County War, comes from a moment just like you described, in that after the terrible overgrazing and drought on the prairies in the mid 1880s, the most powerful of the cattlemen began to focus on intensive farming rather than on the cattle drives that they had done before. And the way that worked is that they would buy land to build their headquarters, usually on a river, and then they would range their cattle on railroad land or on federal land nearby. It was not their land, it was federal land or railroad land.

When smaller cattlemen tried to come in and do the same thing, grazing their cattle on the land that the big ranchers considered theirs even though it wasn’t, those big cattle growers as they were known by then, insisted that the smaller people coming in or the smaller outfits coming in were cattle rustlers, that they were breaking the law.

Now the trick was that the local law enforcement was elected by the smaller outfits and they kept saying, “They’re not doing anything illegal. They’re doing the exact same thing you are, but they’re just not as wealthy as you people are.” And the response to that in Johnson County in Wyoming was that the biggest ranchers in Johnson County organized as what was known as the Wyoming Stock Growers Association. And these Stock Growers Associations in the West are going to show up in places like Owen Wister, The Virginian, a very famous novel that is dedicated to Theodore Roosevelt, actually, and he is part of a Stock Growers Association himself in the years when he lives in Dakota territory. And that shows up later on in his political career as, “Look, he went after cattle rustlers.” But what they did is they decided to clear out the smaller cattle ranchers altogether.

Joanne Freeman:

These cattle barons ended up finding a kind of enforcer, an ally of sorts, in a man named Frank Canton, who was an ex bank robber from Texas. He had been put in prison in 1877, he escaped from prison, changed his name to Frank Canton from Joe Horner, and then headed to Wyoming to ranch. He ended up becoming a kind of stock detective for the powerful cattle barons in Wyoming, and he was given the job of stopping the supposed cattle rustling that was going on. He ends up being elected Johnson County Sheriff in 1882, just five years after he escaped from prison, which again, one of the themes we’re going to keep coming back to again and again and again here is what is the law, and who is enforcing the law, and how is that defined, and how does that depend on who you are in the chain of power?

Heather Cox Richardson:

He’s elected county sheriff in Wyoming after coming from Texas, clearly with the political support of the Stock Growers Association. So this idea that he’s this homegrown good old boy who’s going to enforce the community values, no, no, no, no, no. He is clearly put in place by the stock growers.

Joanne Freeman:

And is praised for being this tough guy who is going to do what they want him to do. For example, a newspaper, The Big Horn Sentinel, talked about a Canton led search for horse thieves in this way, “The sheriff has sent one party in the direction of Billings, Montana and another toward Deadwood, and is himself on the lookout for the thieves. It is very likely they will be overhauled as Sheriff Canton is not much of a man to monkey with them when he gets started. He’s a hero out looking for the bad guys.” So Canton ultimately resigns as sheriff, partly because a powerful rancher who was accused of murder conveniently escaped Canton’s custody. But he then returns to the Stock Growers Association in Wyoming to help step up their efforts to attack rustlers. And in the late 1880s, there’s a supposed uptick in rustlers and at that point, several men from the Stock Growers Association end up forming a violent vigilante splinter group to attack the homesteaders, and they end up being called the regulators and Canton becomes the local guide of the regulators.

Heather Cox Richardson:

So just to be clear, the accusation that these people were rustlers came from the stock growers. They were almost certainly not. They were small enterprises.

Joanne Freeman:

Who were getting in the way of the big enterprises.

Heather Cox Richardson:

But they were actually the ones following the law. So Canton, this guy from Texas who comes up and he’s elected sheriff, but then he lets a really wealthy guy get away literally with murder, lets him escape his custody. He ends up leading the group of people to clear out one of the small enterprises, what was known as the KC Ranch. And what’s just astonishing about this to me, I always use this in my classes, is that the stock growers hire essentially gunmen from Texas and they come up from Texas to essentially commit murder. They actually give them a list of people they want dead. And I always say, “If you’re going to decide to kill a whole bunch of people, historians really appreciate it when you actually leave a list of who they are and then later on argue that you were the ones on the good side.”

But in fact, the gunmen surround for the small cattlemen in a cabin and then kill them and burn them out. But while they’re doing that, the actual people of the county surround those people. So you’ve got the cabin, you’ve got the people working for the Stock Growers Association that are killing the people in the cabin. And then on the outside you have the Johnson County settlers who’ve threatened to hang everybody who is there. Meanwhile, the local law enforcement sides with the small cattlemen, not with the Stock Growers Association. And finally, the Stock Growers Association, this just kills me, but it’s so perfect, appeals to Benjamin Harrison’s administration to come put down what they call an uprising and to restore order.

And Benjamin Harrison, who will take the place of Thomas Jefferson for me this year, my least favorite president, sent the troops in to rescue the stock growers. The local law enforcement tried to bring the stock growers to trial, but the cost of doing so pretty much broke the state and witnesses shut up and the cases all fell apart. And we got this idea that the stock growers were the good guys standing up for the law in the face of a government that had been corrupted by local voters.

Joanne Freeman:

And I want to highlight the image that you just created there, Heather, of circles, concentric circles of people in one way or another, enforcing the law. Like you’re literally looking at different people arguing over who represents the law, who has the ultimate power ring, after ring, after ring. It’s so strikingly visual. It’s so graphic about the precise thing that we’re talking about in this episode, which is people declaring themselves the definers and enforcers of law in one form or another, and others not agreeing, and the chaos and confusion and violence and bloodshed that can potentially result from that.

Heather Cox Richardson:

So get this, guess who’s the hero?

Joanne Freeman:

We can guess, but go ahead.

Heather Cox Richardson:

Canton.

Joanne Freeman:

Of course.

Heather Cox Richardson:

Canton is the hero.

Joanne Freeman:

Of course.

Heather Cox Richardson:

The Chicago Herald says, “Canton is acknowledged to be the nerviest man on Wyoming’s soil. The rustlers wanted to get him out of the way and skin him alive, but no 10 would dare give him battle.” Actually, he ends up as a deputy US Marshall in Arkansas. Canton does. And his widow claimed later on that he was the direct inspiration for The Virginian in the Owen Wister’s novel. That strikes me as a bit of a stretch from someone because there was a lot of models for The Virginian.

Joanne Freeman:

But it’s worth noting that these extra legal figures, as you put it, throw Wyatt Earp in the mix too, keep getting yoked into the hero image, right? “Look at them, independent lawmen, that’s America.”

Heather Cox Richardson:

Moral, upright, upstanding, doing what people really want unlike that corrupt government. And that does show up in The Virginian in a chapter where a judge discusses the difference between lynching of Black people in the south and lynching of horse thieves in the West, which is just this incredibly illuminating moment because he does make an intellectual distinction in which he says, “The lynching of Black Americans shows they don’t have civilization down there, but the lynching of horse thieves up here says, we do have civilization.” Wister goes on to argue that in fact, there are people who are naturally better than others. It’s really an astonishing moment in that book, Owen Wister’s, The Virginian, is one of my favorite books, can you tell?

“It was through the Declaration of Independence that we Americans acknowledged the eternal inequality of man. For by it, we abolished a cut and dried aristocracy. We had seen little men artificially held up in high places and great men artificially held down in low places. And our own justice loving hearts abhor this violence to human nature. Therefore, we decreed that every man should hence forth, have equal liberty to find his own level. By this very decree, we acknowledged and gave freedom to true aristocracy.” And The Virginian is going to be his example of true aristocracy saying, “Let the best man win whoever he is, let the best man win. That’s America’s word. That’s true democracy and true democracy and true aristocracy are one and the same thing.”

Joanne Freeman:

You know what’s fascinating about that is go all the way back to the founding era, and you had people like John Adams talking about the natural aristocracy that’s going to rise out of this new American system. Unlike the old world where you have people given power, assigned power, families with power, that natural aristocracy in the United States, that’s going to be a new thing that’s going to be, they might not have used the word democratic, but basically a more small r republican thing, meaning not monarchical, not old world, but born of this new freer country that’s being born, even as he speaks. This idea that natural aristocracy, and democracy go hand in hand and the fact that that continues on, that’s fascinating.

Heather Cox Richardson:

But wouldn’t it be fair to say that John Adams was arguing that a natural aristocracy was rising to create the laws, whereas in this moment, we’re talking about the rise of the justification. And when I say it’s one of my favorite books, I should say, not because I adhere to it, but because I think it’s such a fascinating snapshot of so many, many things. But in The Virginian and with this concept of sheriffs who can write their own law, we have the idea of a natural aristocracy that doesn’t have to abide by the written laws because they can make their own.

Joanne Freeman:

Well, they have their own law. So in a sense, we are talking about lawgivers of a very different sort. And you’re right, someone like John Adams was talking about actually elite white men in this natural aristocracy. So it’s not very natural. It’s very much of that time. And you’re right, it’s their idea of what they consider to be the law at the time. In that sense, the dynamic at the heart of it is very similar.

Heather Cox Richardson:

The dynamic is the heart, but the operation of it is different in his sense that sheriff should get elected and go to the state legislature or to Congress and make laws not say, “Screw you. I’m not going to abide by those laws it’s because I know better.”

Joanne Freeman:

No, the rule of law as statutes and not as what independent lawmakers see as right is what they’re talking about in the early period.

Heather Cox Richardson:

So then we get to the 20th century and this concept of sheriffs in the 20th century and in the 20th century, they always abided by the law. Sorry, I had to do that too.

Joanne Freeman:

Yes, indeed, you did.

Heather Cox Richardson:

I do think when we go into the civil rights movement of the mid 20th century, that distinction that we have just made here though, that the sheriffs after the Civil War insist on local authority and on their local authority to overall the law, because the law is corrupt.

Joanne Freeman:

And they know what’s right.

Heather Cox Richardson:

And they know what’s right is a really, really, really important distinction.

Joanne Freeman:

So southern sheriffs really became nationally infamous during the civil rights movement in the mid 1960s as President Lyndon Johnson was really shepherding the 1964 Civil Rights Act and the 1965 Voting Rights Act. The legacy and the power of segregationist sheriffs really loomed large. For example, during a November 1965 White House reception with civil rights leaders, Johnson called out southern sheriffs and their role in helping Black Americans to register to vote. Johnson said to these civil rights leaders, “I urge you, I plead with you, I beg you to work around the clock, tell those who have been barred from the polls that a new day has come, that at last they may have a voice in shaping the destinies of their own land.” That voice will be heard from the sheriff’s office to the halls of Congress, but only if it is used.

Heather Cox Richardson:

And it seems worth emphasizing when we talk about the way that these segregationist sheriffs behaved, what that looked like. If you think about a sheriff as being the law enforcement officer, primarily in a rural area, they have a lot of authority. They have a lot of power. They have a lot of fire power, and they rarely have a lot of witnesses. And that is going to combine in the middle of the 1960s to be absolutely deadly.

Joanne Freeman:

They have authority and power that’s personal and social, which is a real kind of a power. It’s a kind of power that’s hard to overcome because in a sense, it’s unwritten. Now, let’s look at one of these southern sheriffs, Jim Clark. Basically, it’s hard to think of a sheriff who is more of an obstructionist to civil rights than Dallas County’s Jim Clark, who ultimately is one of those most responsible for the 1965 violence in Selma, Alabama. Now, Clark was born in Alabama in 1922, worked as a cattle rancher before being appointed Dallas County Sheriff in 1955. Now, the county seat was Selma, and as more Black voters tried to register to vote in Dallas County, Clark began wearing a button on his lapel reading, “Never.” In 1963, when the student non-violent coordinating committee organized a Freedom Day voter registration drive in Selma, Clark sent a photographer to take pictures of the attendees, threatening to send the photos to their employers. Wow, people taking photographs of people voting or registering to vote. Wow, how exotic.

Heather Cox Richardson:

Sometimes being a historian in this moment really sucks.

Joanne Freeman:

It sure does.

Heather Cox Richardson:

Because it’s like nothing’s really that new under the sun.

Joanne Freeman:

No. And yet it’s not new under the sun. We’ve seen it before. We can predict it’s going to happen again, and yet some part of you still remains open mouthed.

Heather Cox Richardson:

Aghast, that we’re doing it again.

Joanne Freeman:

And seeing it happen again. So on January 25th, 1965, a 54-year-old Black woman named Annie Lee Cooper went to the Selma Courthouse to register to vote. At the time, less than 2% of ostensibly eligible Black voters were registered while Cooper-

Heather Cox Richardson:

2%.

Joanne Freeman:

2%. Well, 2%, and she’s there.

Heather Cox Richardson:

Honest to God, that’s the other thing that echoes in the present from the past all along, is that people who were marginalized kept speaking up.

Joanne Freeman:

And being there in person, and there she is in person among the less than 2% who are registered, there she is putting her body in that position to register.

Heather Cox Richardson:

Quite literally.

Joanne Freeman:

Yes. So while she’s in line, Sheriff Clark poked her in the back of the neck with a Billy club. Now, initially, Cooper ignored that attack, but eventually she turned around and punched him in the face, knocking him to the ground. So that act of resistance by Annie Lee Cooper led people to pay on a national level, a lot more attention to the civil rights activists in Selma. On February 15th, 1965, activist C.T. Vivian led a group of prospective voters to confront Clark on the steps of the Dallas County courthouse. And Vivian laid into Clark while television cameras rolled. Clark responded by punching Vivian in the face so hard that Clark broke his own hand. So here is C.T. Vivian confronting Sheriff Clark on the courthouse steps.

Speaker 3:

This courthouse and wait… This courthouse does not belong to Sheriff Clark. This courthouse belongs to the people of Dallas County, and these are the people of Dallas County, and they have come to register, and you know this within your own heart, Sheriff Clark. You are not as evil man as you act. You know in your heart what is right, you just refuse to do it because you want these people behind you and are sure for this county, if you’re deeply concerned, you will go call the registar rather than keep people from standing inside. What you’re really trying to do is intimidate these people and by making them stand in the raid, keep them from registering to vote. And this, this is the kind of violation of the Constitution, the violation of the court order, the violation of decent citizenship. You can turn your back on me, but you cannot turn your back upon the idea of justice.

Heather Cox Richardson:

Now, important here, aside from the scene, is where they are. They’re at the courthouse.

Joanne Freeman:

The seat of law.

Heather Cox Richardson:

The seat of law, that’s right. And where they’re trying to register to vote, which is, I don’t know, guaranteed by the Constitution. So you have here literally Sheriff Clark saying not only that he can override the Civil Rights Acts of 1957 and 1964 that were both designed to make it easier to vote. He’s also saying that he gets to decide over the Constitution whether or not Black Americans have a right to say this one guy standing on the courthouse steps, mind you, with the idea that he’s got the “best people”, again, air quotes there, of Dallas County behind him.

Joanne Freeman:

Now, what happens from this point is yet again another example of these concentric and not so concentric circles of people claiming that they are enforcing the law in one way or another and defining law very differently. So on March 7th, 1965, on a day that later became known as Bloody Sunday, 500 civil rights marchers organized by a woman named Amelia Boynton and led by activist John Lewis and Hosea Williams approached the Edmund Pettus Bridge on their way to the state capitol in Montgomery. Acting on orders by Alabama Governor George Wallace, state troopers began attacking the marchers violently. And again, another example of different people claiming to be different law enforcers with very different ideas of the law. A posse organized by Sheriff Clark joined the attack on the marchers. There you see, again, sheriffs playing this kind of independent role of standing up for what Clark would’ve seen as order and quote unquote, “civilization”.

Heather Cox Richardson:

And they beat the marchers unconscious, and they literally were marching. It was a 54-mile march. There’s a long history behind it, but they were marching peacefully for their legally protected right to vote.

Joanne Freeman:

To the capitol, a legal act of protest. They are marching peacefully. That is what they were doing.

Heather Cox Richardson:

And they paid for it many times over.

Joanne Freeman:

Now, given that whole story, it would be nice to think that Clark at some point looked back on his actions and thought, “Well, maybe I’ve learned something. Maybe actually my sense of the law was incorrect.” But no, of course, he did not. In 2007, a year before his death, he told the Montgomery advertiser, “I’d do the same thing today if I had to do it all over again. I did what I thought was right,” and there you go, the mantra for the sheriff of a certain kind. “I thought this was right, and I did it.”

Heather Cox Richardson:

It jumps out to me that in fact, the mood of the county changed. African Americans began to register to vote, and Clark lost his race for reelection in 1966, and then in 1978, he was indicted by a federal grand jury in Montgomery, Alabama on charges of conspiring to smuggle marijuana, and he served nine months in prison. There are ways in which this idea of a posse, a sheriff, somebody focusing on the local level and they’re defining who gets to have a say in that attracts those who reject the idea of the rule of law, rejects the idea of community, rejects all those things that they are almost by definition, people who are not willing to play nicely. What do you think?

Joanne Freeman:

Well, I think a lot of that would be the case, but would you say they reject the idea of community? Aren’t they defining what their community is?

Heather Cox Richardson:

Well, they’re rejecting the idea of rule of law based on community values.

Joanne Freeman:

Yes, that would be.

Heather Cox Richardson:

I mean, they’re just deciding who their community is.

Joanne Freeman:

Exactly.

Heather Cox Richardson:

The same way the popular sovereignty people did, say, “We’re just the white guys over here.”

Joanne Freeman:

Exactly. They’re deciding who their community is, and then they are therefore setting the rule of law for that community.

Heather Cox Richardson:

So it would be like me deciding that I speak for a community and we are all female academics and we can impose our laws on everybody else. Suddenly, I get the attraction.

Joanne Freeman:

I was trying not to smile. I was like, “Huh.”

Heather Cox Richardson:

However, we are aware that one can’t do that, right?

Joanne Freeman:

No. And then somehow or other bad things would happen, but it does make a person smile just to think about it a little bit.

Heather Cox Richardson:

Yes. But again, only in jest.

Joanne Freeman:

Yes.

Heather Cox Richardson:

So that brings us to the modern day constitutional sheriff moment.

Joanne Freeman:

Here is the key to why this is so problematic, because what don’t these constitutional sheriffs have? Accountability. They’re not accountable to the city governments. They’re not accountable to state legislatures. They’re accountable to the voters. They are in some ways very independent as lawmakers, lawbreakers, however you want to define them. It’s another example of many that we’ve talked about on Now & Then about how central accountability is, that when you give someone power, they have to be held accountable for it.

Heather Cox Richardson:

Of course. Richard Mack, the person we mentioned before, was once on the board of the Oath Keepers and the Oath Keepers, of course, are currently on trial in Washington DC for their part in the events of January 6th, 2021, when those who refused to accept the outcome of the 2020 presidential election insisted that they had the right to overturn it, to say that that was not in fact the way America should have decided that election, and they, by virtue of the fact they felt it was wrong, had the right to simply say to a majority of the American voters, “No, you don’t get to have the laws you want, the president you want, the system you want. We get to decide that.”

And I think that strand of American authoritarian thought really passes right through from popular sovereignty to the idea of posses and the Stock Growers Associations of the late 19th century, through the white supremacist sheriffs of the 1960s, to this moment of saying, “We don’t care what the laws are about voting. We don’t care what the electoral college is supposed to do. We don’t care that the president got seven million more votes than the losing candidate.”

Joanne Freeman:

“We know what is right. We know what we want, and we deserve to have it.”

Heather Cox Richardson:

“Because we really are the ones who represent true America regardless of what any of your laws say.”