Sheriffs in the United States hold immense power. They arrest people on the streets they patrol, they run their county’s jails, and they enforce evictions. In many areas, they enforce immigration laws and conduct homicide investigations for municipal police departments in their counties. 
Over the past two decades, some sheriffs have advocated for the notion of “constitutional sheriffs,” which holds that the sheriff’s authority supersedes those of local government, courts, state and federal legislatures — even that of the president of the United States. Several sheriffs in the movement have said they would not enforce some gun control laws and opposed COVID-19 lockdown restrictions.
The self-identified constitutional sheriffs and their supporters are the subject of The Highest Law in the Land, journalist and attorney Jessica Pishko’s investigation into a world where sheriffs have the ultimate power. For the past six years she has studied sheriffs in the United States, along with their role in perpetuating white supremacy and presenting an existential threat to American democracy.
This interview has been edited for brevity and clarity.
Capital & Main: Who created the constitutional sheriffs movement?
Jessica Pishko: There’s internal debates about who started what.
Most people trace the official constitutional sheriff movement to an ex-Arizona sheriff named Richard Mack. He founded this group called the Constitutional Sheriffs and Peace Officers Association (CSPOA).
He was the sheriff of a small county in Arizona during the late ’80s and then up to the early ’90s. He was actually elected as a conservative Democrat. While he was sheriff, Bill Clinton signed the Brady Bill, which was one of the first big pieces of gun legislation that had been signed in a long time. One of the parts of the Brady Bill required local law enforcement to do background checks on people purchasing firearms — this was before they had the computerized system that we have now. Mack, along with a very handful of sheriffs, were recruited by the National Rifle Association to sue the government, and they won on a limited basis. And Richard Mack rode that popularity to become kind of like a little traveling superstar.
William Potter Gale, he really launched the rhetoric. He was very racist. And he said he wanted a white homeland. Gale says he started the group called Posse Comitatus, which was, in essence, a far-right group that was really violent. One of their ideas was that the sheriff was the only legitimate law enforcement.
What is the role of racism in the constitutional sheriffs movement?
Right after the election of Barack Obama, Mack ganged up with a couple of militia guys. That’s when he met Stewart Rhodes [founder of the Oathkeepers, a far-right anti-government militia]. They started touring together and talking again about gun ownership and militias. This is when Mack launched the CSPOA.
He has a highly conspiratorial frame of mind — which is why the Great Replacement theory feels like a thing to attach to, because it’s like there’s a conspiracy to displace the white majority.
At this point, one of the things challenging Richard Mack and why he’s hanging on, but no longer a leader of the right, is that the mainstream GOP is basically more openly racist. It’s asked this question of are people like Richard Mack running to catch up with the racism of the current GOP.
He wants to frame his movement as civil rights for white people. He wouldn’t say it’s for white people, but it is like civil rights for white people. And he will say, “Well, a constitutional sheriff would not have arrested Rosa Parks.”
One thing that really was interesting in your reporting is characters like Mack in the constitutional sheriffs movement frequently likening themselves to civil rights activists. What is up with that?
He takes this idea of liberty like, “Rosa Parks wanted to be left alone.” And it miscasts the Civil Rights Movement. The Civil Rights Movement was not about being left alone. People wanted the government to tell people to stop being racist.
He uses that to dance away from CSPOA’s associations with white supremacy. Some of it is just like it’s naturally going to be white power related — most sheriffs are white. Most of the sheriffs in his group are white. Most of his positions mirror the far right and the mainstream GOP, which is like civil rights for white people.
One of the core actions the constitutional sheriffs movement advocates for is interposition. Can you explain what that is?
Interposition would be described as interposing or standing between a federal law and either a county or a state. And nullification is kind of just saying this law is not valid and we don’t want to do it.
John Calhoun, famous lover of enslavement, argued that interposition and nullification were necessary to protect the institution of slavery. This was around the time that the U.S. was debating what states will allow enslavement and which ones won’t. He argued, if for some reason they decide we’re going to end the institution of slavery in certain states, we’re going to interpose and say, no, you can’t do that. We’re going to [have slavery] anyway. And who will stop us? The exact same thing happened in terms of what people call the Massive Resistance, the opposition to desegregation. That was also the one of the incidents that birthed William Potter Gale.
Can you explain how a purported law enforcement officer would be OK with people breaking the law? And what kind of people are they comfortable with breaking the law?
White people and not really like rich people even, but like people that they see as like them.
One of the issues that comes up is alliances with militias. When a militia goes to the sheriff and is like, “We think some Black Lives Matter protesters are coming to town and we’re going to show up.” And the sheriff is like, “Cool, thanks for the heads up.” They see them as sort of like their buds. In some cases they are literally their buds. If you have the racial justice protesters show up like, “We’re going to protest,” they don’t see those protesters as like them. They see them as oppositional.
Breaking the law is always going to be subject to discretion. Data already suggests that at every level, police use their discretion largely to oppress people of color. Then you layer on top of it this attitude of “Oh, I do what I want. And what I mostly want is to help my buds,’ that’s what they do.
How big is the constitutional sheriffs movement?
Two political scientists with the Marshall Project did a survey, and they only found somewhere less than 50 that actually said they were constitutional sheriffs. But they found a lot more who agreed with most of the theories. They agreed with the idea that the sheriff is the highest law in the land. That’s the part that I think is the most common. Even the National Sheriffs’ Association says that sheriffs are the highest law enforcement officers in the county, and they’re only held accountable through elections. They don’t mention anything about civilian oversight.
The Constitutional Sheriffs and Peace Officers Association has also been criticized by the National Sheriffs’ Association. What about CSPOA makes the National Sheriffs’ Association think that they’ve gone too far?
The National Sheriffs’ Association is kind of run by mainstream Republicans. They don’t want to be associated with groups that the Southern Poverty Law Center calls extremist. They don’t really want to be associated with someone like Richard Mack, who has supported figures that are problematic, like Stewart Rhodes.
Who supports the constitutional sheriff movement outside of the policing world?
Moms for Liberty. All the “parental rights” groups support constitutional sheriffs. As well as basically everyone in the election denial space. All the gun people. Everywhere I went, there were Trump 2024 signs.
What is former President Donald Trump’s relationship like with the constitutional sheriffs movement and sheriffs in general?
One of the things about Trump that’s interesting is he’s basically the first president to meet with sheriffs a lot. I think he met with them a dozen times at the White House — kind of unprecedented.
The influence of Trump and his embrace of sheriff-friendly policies has made a lot of sheriffs really inspired to join Trump. It also is a way to be like, ‘We hate the woke libs.’
Do you think there’s any danger of a repeat of Jan. 6 backed by sheriffs and militias?
I hope not. Jan. 6 was fueled by these movements, these militias.
If a sheriff calls a militia or summons them as a posse and then they show up, the ability to digest events that are bad that didn’t result in an insurrection but were still very dangerous and hurt people and scared people into something that’s OK or understandable or like part of the great tradition of American protest — that’s what I worry a little more about.
The more insidious thing is actual sheriffs arresting actual people for voting.
What role does the Supreme Court play in determining the future of constitutional sheriffs, as well groups online, with their agenda?
The primary issue is that the Supreme Court is supposed to be like a check on law enforcement. The Supreme Court’s originalist interpretation of the Constitution is kind of the same as what constitutional sheriffs think.
You conclude that the offices of the sheriff should not exist. Do you have any ideas about actionable ways to make that a reality?
The first thing I would say is to separate the management of jail facilities from policing. If you disconnect jail management from policing, I think that that would erode the power of the office.
Jails should not exist, period. But also jails should not be managed by law enforcement officers, who use it to train deputies to understand the “criminal element.” I think that people would quickly start to see that they didn’t need this. If you remove the jail function, I think people would start to see that maybe the sheriff is not as necessary.
