I’m sure you’ve heard the term “constitutional sheriff” thrown around. The idea is that these elected law enforcement officers will stand between the people and an overreaching federal government. They will interpose and protect their constituents from constitutional overreach.

It sounds good in theory, but the whole idea unravels pretty quickly whe these elected cops don’t know a damn thing about the constitution they claim to defend.

Take the six Colorado sheriffs who joined a lawsuit against their state. They want a federal court to overturn Amendment 64 – voter approved legalization of marijuana in the Centennial State.


As Reason Magazine senior editor Jacob Sullum put it, “It makes them uncomfortable.”

The sheriffs claim it creates a gut-wrenching conflict for them on the job every day. According to the complaint, “each [sheriff] is placed in the position of having to choose between violating his oath to uphold the U.S. Constitution and violating his oath to uphold the Colorado Constitution.”

Lead plaintiff Larimer County Sheriff Justin Smith told USA Today that “Colorado is ‘asking every peace officer to violate their oath,’ Smith said. ‘What we’re being forced to do … makes me ineligible for office. Which constitution are we supposed to uphold?’”

According to our intrepid sheriffs, since the federal government implemented a policy of marijuana prohibition under the Controlled Substance Act, Amendment 64 violates federal law. And because it eliminates state penalties on weed, Colorado’s legalization of marijuana runs afoul of the Constitution’s supremacy clause.

Apparently, these ignorant Colorado sheriffs desperately need a constitutional lesson.

As an aside, I would love to hear the sheriffs explain how marijuana prohibition counts as “in pursuance of” the Constitution when alcohol prohibition was not. Keep in mind, it required a constitutional amendment to ban booze at the federal level. But I digress.

Sheriff Smith and his gaggle of Barney Fifes should found their own organization. They could call it the Unconstitutional Sheriffs Society. Smith and his cohorts have absolutely no clue about their constitutional responsibilities.

The alleged conflict that tortures these poor sheriffs on a daily basis exists only in their little minds. In reality, they have exactly zero responsibility to enforce federal drug laws – constitutional or otherwise. Even the federal courts have repeatedly and firmly established that the federal government cannot compel states to expend resources or require state personnel to help implement or enforce federal acts or programs.

Sullum grasps what eludes these elected cops.

Under the ‘anti-commandeering principle’ that the Court applied in Printz, requiring local cops to enforce the federal ban on marijuana would be clearly unconstitutional. So when a Colorado cop encounters someone 21 or older with an ounce or less of marijuana (the limit set by state law) and does not confiscate it as contraband under the Controlled Substances Act (CSA), he is not violating his oath to uphold the U.S. Constitution. Likewise if he finds six or fewer plants in someone’s home and leaves them there or if he passes a state-licensed pot shop and does not try to shut it down.

To put it another way, the sheriffs want a federal court order requiring Colorado to recriminalize these activities and start busting cannabis consumers, growers, and retailers again. They say the U.S. Constitution requires Colorado to treat those people as criminals, regardless of what Colorado voters or legislators want. That position cannot be reconciled with the 10th Amendment, which says “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.” Writing state criminal laws is not a power that the Constitution delegates to the federal government.

Perhaps you could forgive the sheriffs for not knowing about the anti-commandeering doctrine if it was a new-fangled constitutional principle.

It’s not.

In fact, the Justice Joseph Story first articulated the concept in 1842 in Prigg v. Pennsylvania.

For the math-challenged that means federal courts have held the feds cannot require state officers to enforce federal law for 173 years.

In the Prigg opinion, Story held that the federal government could not force states to enforce the Constitution’s fugitive slave clause. Unlike marijuana prohibition, you will actually find fugitive slave rendition in the Constitution. But Story reasoned that because it was a federal object, it was up to the federal government to enforce it. Not the states.

The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.

Notice that the Court not only held the feds could not compel states to help with federal enforcement, it said doing so was an unconstitutional exercise.

Interestingly, in my extensive study of northern personal liberty laws and adamant state refusal to cooperate with the Fugitive Slave Act of 1850, I have never come across a state officer suing its own government because he was “uncomfortable” and “conflicted” about having to choose between sending accused fugitive slaves back into bondage and following federal law.

Sheriff Smith and his cohorts experience no actual conflict.

They don’t have to make any choice.

They don’t run any risk of violating their oath.

In fact, Colorado sheriffs have absolutely no responsibility to enforce federal marijuana prohibition.




When they drive by a pot shop or a field of legally grown weed and take no action, they actually uphold a fundamental constitutional principle.

They honor their oath.

By running to the feds to force the state to embrace a federal policy, they smash the constitutional system they claim to revere.

They violate their oath.

In reality, these sheriffs simply count as six more constitutionally ignorant public officials clamoring for monopoly power in Washington D.C. to advance their own policy principle.

Mike Maharrey

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