Richard Mack: The County Sheriff: America’s Last Hope. Self-published, 2009.
Richard Mack: Are You a David? America’s Last Hope, Volume II. Self-published, 2014.
Frederic Bastiat: The Law. Dean Russell translation. Irvington-on Hudson: The Foundation for Economic Education, 1997 [1850].
Given the often overbearing actions of America’s administrative state, citizens seek ways to resist. Mr. Mack, formerly sheriff of Graham County, Arizona, hopes that he has found one in the office of county sheriff. Consonant with his esteem for rugged individualism, he published his books himself. In receiving my copies, I was surprised to find that the distributor had kindly added a copy of Frederic Bastiat’s The Law, and while any free-enterprise-oriented economist would rightly insist that there’s no such thing as a free book, I am grateful that some residue of my payment enabled him to be so generous. I interpreted the gesture as a hint that the Bastiat tract, long a staple among libertarians, provides the theoretical framework for Sheriff Mack’s modest proposals.
Mack sees that the regime of the American founders and the principles upon it rested has been partly replaced by a new regime, based upon such Marxian principles as “forced equality through governmental redistribution of wealth” and “the removal of religious beliefs and expressions from our public institutions.” What he adds to a defense of American constitutionalism and a critique of the Left is the claim that county sheriffs can legally resist the encroachments of the centralized, administrative state. His argument was first formulated by William Potter Gale, who founded the Posse Comitatus movement in the 1980s; Gale claimed, among other things, that citizen posses are entitled to hang public officials who, in the judgment of the posses, have violated the United States Constitution. [1] Mack offers a more sober agenda.
“The County Sheriff is our nation’s last line of defense, for the preservation and return to fundamental and individual liberty.” He begins with an account of his own rather impressive act of resistance. In his initial work as a police officer in Provo, Utah, he had followed the program of the city department, which demanded strict enforcement of local ordinances, generating revenues from fines, in exchange for more manpower and equipment for the police department. But he soon reversed course.
After reading the United States Constitution, which he had been sworn to uphold, he “gain[ed] a complete disdain for abusive government.” Moving to Arizona in 1988, he was elected Graham County sheriff in 1990, re-elected in 1992 and 1994. In those years Congress and the Clinton administration enacted the Brady Act, named for President Reagan’s aide, James Brady, who was seriously wounded by a would-be assassin wielding a handgun. The Brady Act required a five-day waiting period for purchase of handguns, during which time the chief law enforcement officer in a county or municipality would do a background check on the would-be purchaser. “This law literally forced each sheriff to become a pawn for the Federal Government and to do their bidding to promote gun control within our jurisdictions”—providing no funds for its enforcement. “Here’s the U.S. Congress making an unconstitutional gun control law, requiring a county official to enforce it and pay for it, and then threatening to arrest him if he refuses! What a government!” In 1997, Mack won his case (Mack v. U.S. 856 F Supp. 1372). While denying Mack’s claim that the law violated the Thirteenth Amendment’s prohibition of involuntary servitude (noting that, unlike a slave, Mack could evade compliance by leaving his job), the Court ruled that Mack was being “forced to choose between violating his oath or violating the Act,” which was a violation of the fifth and tenth amendments. The law’s requirement that sheriffs make a “reasonable effort” to enforce the law was too vague, and therefore in violation of the due process clause of the Fifth Amendment. And while the distribution and sale of firearms across state lines undoubtedly can be governed by federal law under the Tenth Amendment commerce clause, the federal government may not regulate interstate commerce in the way the Act did. Laws for that purpose must apply to states generally and not be specifically directed at a particular group—in this case, chief law enforcement officers. And while it was true, as the United States attorneys argued, that the Act didn’t require states to do anything to enforce its provisions, it did require sheriffs to do so, and Mack was within his rights to refuse.
Mack exaggerates when he claims that states are not subject to federal jurisdiction. He quotes Justice Antonin Scalia, who reaffirmed that “the Federal Government may not compel the states to enact or enforce a federal regulatory program,” but that is very far from saying that states are free of federal law. Federal officials are fully empowered to enact and to enforce federal laws within the states; that was one of the principal differences between the United State Constitution and the Articles of Confederation. The states have the right not to help them do so, but not the right to nullify federal law or to interfere with its enforcement. Neither Scalia nor any of the other Supreme Court justices made an argument for nullification.
Therefore, when James Madison wrote that “We can safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority,” Sheriff Mack should less confident than he is, when he avers, “I am more than certain President Madison and his fellow framers would not mind one iota, if other town and county officials” joined their states in erecting such barriers, or did so unilaterally without their states’ approval. When Madison writes, “The local or municipal authorities form distinct and independent portions of [the people’s] supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them within its own sphere,” he means just that: there are indeed federal and state/local “spheres” of government, but they do not mean that a state or a county may constitutionally bar the federal government from passing legislation that ‘reaches into’ the territories of states and counties—only that federal officials may do so only in accordance with the powers granted by the people to the federal government, powers enumerated in the Constitution. Mack claims that “the original intention of our Founders [was] to maintain the federal ‘sphere’ as small and impotent,” he is talking nonsense, unless he means the Articles of Confederation government, not the United States Constitution—that is, the one Sheriff Mach swore to uphold.
None of this precludes the right to revolution, which the Constitution effectively ‘reserves’ to citizens by guaranteeing the right of the people to bear arms. As Mack exclaims, “Who did Paul Revere call to arms? None other than the citizens volunteers, the militia, who kept their ‘assault rifles’ in their closets just in case they were ever needed in defense of liberty. This is the very reason the Founders established the Second Amendment, so that the people or the ‘militia’ would always possess arms in defense of this nation against tyrannical government!” This right to revolution is indeed the final defense against “cruel or stupid laws,” the enforcement of which “is defined by the blind enforcement of stupid laws…. We are not puppets for the courts or legislatures!”
Mack hopes “to keep this revolution a peaceful one,” however. “There is a man who can stop the abuse, end the tyranny, and restore the Constitution, once again, as the supreme law of the land. Yes, it is you, SHERIFF!” Mack traces the office of sheriff to eleventh-century England, where the “shire reeve” was appointed by the sovereign monarch, defender of the realm. In America, a county sheriff is elected by the sovereign people, and has “the power to call out the ‘militia’ to support his efforts to keep the peace in his county.” The only other officials empowered to do so are state governors and the president of the United States, although Mack is careful not explicitly to name the latter. Since “the Constitution is no longer the compass that guides our country,” sheriffs must step up to interpose what he takes to be their constitutional authority against federal government encroachments. He cites the example of the Nye County, Nevada sheriff who “informed federal agents who came in to confiscate cattle from a local rancher, Wayne Hague, that if they tried to take the cows that he would arrest them. The cattle stayed right where they were.”
More ambitiously, Mack claims that county sheriffs could block the “Gestapo of America”—the agents of the Internal Revenue Service—from collecting income taxes. “The IRS should never have been in existence in the first place” because “there should be no tax on incomes,” as “the 16th amendment, which supposedly authorized congress to do so, was never ratified by the States.” Here he tacitly draws from the argument advanced by William J. Benson and Martin J. Beckman in their 1985 book, The Law That Never Was: The Fraud of the 16th Amendment and Personal Income Tax. Benson and Beckman argue that no state ratification conventions were called, and that the text of the amendment ratified by the state legislatures contained variants in capitalization, spelling, and punctuations. It should be almost needless to say that this argument has been rightly dismissed as trivial when advanced in federal courts.
In his peroration at the end of The County Sheriff, Mack asks “What would it really hurt if we actually tried this? What damage would it cause if all sheriffs and police literally followed the Constitution and refused to have anything to do with its violation? I only see one result; our officer and protectors and the people get their freedom back.” If, however, as seems likely, what Sheriff Mack intends to do is to reconstitute the Articles of Confederation under cover of constitutionalism, it could do substantial damage to rights local officials chose not to defend, and to the constitutional union that has protected Americans from foreign invasion since 1814.
In the second volume of the work—heroically titled, Are You a David?—Mack elaborates and refines his argument. Distancing himself from the likes of Gale and the white supremacist militias, he assures us that “this book and its author will never advocate violence of any kind.” [1] He goes so far as to invoke the Reverend Dr. Martin Luther King, who “stated frequently that we have a moral responsibility to obey just laws. However, we likewise have a duty and moral responsibility to disobey unjust laws.” Very true, except that Dr. King’s doctrine of civil disobedience included a willingness to accept unjust punishment for violating unjust laws. This is precisely what Sheriff Mack prefers to avoid.
In so hoping, he again relies on the United States Constitution. He understands the purpose of American government to secure life, liberty, and the pursuit of happiness, very much including property ownership. The purpose of the Constitution is to establish and to preserve a governmental structure that contains parameters to protect individual rights—strict limitations on government as it operates to fulfill its purpose. The purpose of the Bill of Rights is to list certain innate and immutable rights that the government may not infringe. On the latter point, it would be more accurate to say that the Bill of Rights lists certain civil rights that the Framers take to follow from natural rights; for example, by human beings have the right to defend their lives, liberty, and property, and the civil rights to bear arms and to enjoy a speedy and public trial may well be said to follow from that.
It does not necessarily follow from natural right or from the Constitution that states have the constitutional right to nullify federal regulations whenever a state or group of states deems those regulations unconstitutional. Although Mack deems it “irrefutable” that “prescribed constitutional law enforcement assignments” are limited to treason, counterfeiting, piracies and felonies committed on the high seas, offenses against the Law of Nations, and invasion, he overlooks the constitutional power to lay and collect taxes, duties, imposts, and excises, to regulate interstate commerce, and to guarantee a republican form of government to every state.
This is not to say that Mack has some sensible things to say about constitutionally dubious bureaucratic overreach. He rightly observes that many Americans shy away from resisting encroachments for fear of losing federal grant monies or out of sheer complacency. The practice of the Environmental Protection Agency, which “now issues fines to citizens without due process” and the move toward government-mandated universal healthcare surely number among unconstitutional abuses of power, inasmuch as they obviously exceed the powers enumerated in the Constitution. It would be hard to gainsay the sheriff as he writes that “when the government controls the land, the jobs, the air, all waterways, industries, pensions, health care, education, and the re-distribution of wealth, the conclusion is inescapable; it’s communism!” And he is correct in saying that the school of constitutional interpretation that calls for an “elastic” or “living” Constitution has nothing to do with the thought of the Framers. Finally, he makes good sense in remarking, “the Constitution will never protect you. It will not stop tyranny or corruption or the criminality of government agents. But YOU can! The Constitution can only protect us IF we have someone willing to enforce it!”
Very well then, what specifically can a county sheriff do? In 2011, Sheriff Mack formed the Constitutional Sheriffs and Peace Officers Association. He devotes a chapter to reprinting its resolution announcing that its members will neither allow nor tolerate a number of government practices, including registration of personal firearms, confiscation of firearms, audits or searches “of a citizen’s personal affairs,” property inspections, detainment or search of citizens, and “arrests with continued incarcerations” without probable cause, due process, and “constitutionally compliant warrants.” The resolution also rejects “domestic utilization of our nation’s military or federal agencies operating under power granted under the laws of war against American citizens,” a stance that may or may not cast a shadow on the constitutionally stipulated Congressional power to provide for calling forth the militia to execute the laws of the Union and to suppress insurrections. As always, such brave pronouncements rest on solid grounds insofar as they amount to a refusal to do the federal government’s work for it, but tend to step outside the limits of constitutional law insofar as they aim at interfering with the enforcement of federal law, when constitutional. As long as the “Constitutional Sheriffs” understand that they are proposing extra-constitutional actions, they will exhibit a realistic sense of what they are doing. The fact that their actions are extra-constitutional is precisely what Sheriff Mack denies.
The gift of Frederic Bastiat’s The Law provides an opportunity to wonder if the underlying theory of the Constitutional Sheriff movement lies neither in the American founding nor in white-supremacy ‘race science’ but in libertarianism. Bastiat’s esteem for law puts him, and his form of libertarianism, at odds with anarcho-capitalism à la Murray Rothbard, with whom constitutional sheriffs could not treat, inasmuch as they depend upon tax revenues from the sovereign people. [2]
Bastiat asserts that the law and the police power of the modern state have been “perverted,” having become weapons “of every kind of greed.” Although life in its physical, intellectual, and moral dimension is a gift from God, He “has entrusted us with the responsibility of preserving, developing, and perfecting it.” Laws exist because life, liberty, and property need to be secured; that is the right function of law, properly “the collective organization of the individual right [or ‘natural right’] to lawful defense.” “If every person has the right to defend—even by force—his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly.” Such a “collective right” stems from “individual right.” There is no other purpose for a legal code. Conversely, under this definition of law, “the common force…cannot lawfully be used to destroy the person liberty, or property of individuals or groups.” The common force may “do only what the individual forces have a natural and lawful right to do.”
Bastiat brushes off the question of regimes, of “political form.” Any form is just, so long as the stated criteria are met. Given the instability of the regimes in France between the 1780s and Bastiat’s lifetime, it makes sense for him to downplay the regime question, protesting that “no one would have any argument with government, provided that his person was respected, his labor was free, and the fruits of his labor were protected against all unjust attack.” By “argument” he likely means “rightful argument,” as there is seldom any shortage of souls unsatisfied with mere guarantees of life, liberty, and property.
And indeed, “the law has been used to destroy its own objective, “plac[ing] the collective force at the disposal of the unscrupulous who wish, without risk, to exploit the person, liberty, and property of others,” “convert[ing] plunder into a right, in order to protect plunder,” “lawful defense into a crime, in order to punish lawful defense”—crimes committed by “stupid greed” and “false philanthropy.” Such misrule often marches behind the flag of ‘progress,’ but “if everyone enjoyed the unrestricted use of his faculties and the free disposition of the fruits of his labor, social progress would be ceaseless, uninterrupted, and unfailing.”
Unfortunately, too many people “wish to live and prosper at the expense of others”—a “fatal desire [which] has its origin in the very nature of man,” in “that primitive, universal, and insuppressible instinct that impels him to satisfy his desires with least possible pain.” To live and to “satisfy his wants,” someone must work. But better you than me. “Since man is naturally inclined to avoid pain—and since labor is painful in itself—it follows that men will resort to plunder whenever plunder is easier than work.” Plunder stops “when it becomes more painful and more dangerous than labor,” and it is the right function of law to arrange that. Unfortunately, law must itself be made by men, “by one man or one class of men.” Hence “the almost universal perversion of the law.” Hence also the tendency toward democracy; the plundered want “somehow to enter—by peaceful or revolutionary means—into the making of laws,” intending either “to stop lawful plunder” or “to share in it.”
Legal plunder is the perversion of law and it intensifies the moral perversion that led to it. First, “it erases from everyone’s conscience the distinction between justice and injustice,” imposing upon citizens “the cruel alternative of either losing his moral sense or losing his respect for the law.” And so, “if there exists a law which sanctions slavery or monopoly, oppression or robbery, in any form whatever, it must not even be mentioned.” Second, legal plunder perverts education by causing universities to endow teaching positions intended to promote regulation of industry,” twisting work itself to its purposes.
All of this “gives an exaggerated importance to political passions and conflicts, and to politics in general.” Universal suffrage, for example, should not be considered “one of those sacred dogmas which it is a crime to examine or doubt,” and probably isn’t worth fighting for. After all, it isn’t really universal—women, minors, criminals, and the insane being excluded. “This controversy over universal suffrage (as well as most other political questions) which agitates, excites, and overthrows nations, would lose nearly all of its importance if the law had always been what it ought to be.” Then, no one would care. Bastiat already has given us the refutation of his own utopianism, however, having admitted that many people are eager to live at the expense of others. And indeed he corrects himself: Under prevailing circumstances, “certainly every class will aspire to grasp the law, and logically so”—even “beggars and vagabonds will then prove to you that they also have an incontestable title to vote.” Ah, but M. Bastiat, not only under prevailing circumstances, but under the circumstance of right law that you esteem there will always be those who want more—as you admit, citing human nature.
And so one does indeed see in the United States of 1850, where a better-than-usual set of laws exists. This notwithstanding, Americans are wracked by two evils which “have always endangered the public peace there”: slavery, “a violation, by law, of liberty,” and tariffs, “a violation, by law, of property.” These are two examples of “legal crime.” Meanwhile, in Europe, socialism arises—legal plunder par excellence, whereby “the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong.” Legal plunder has many ways of proceeding: tariffs, protection, benefits, subsidies, encouragements, progressive taxation, public schools, guaranteed jobs, guaranteed profits, minimum wages, a right to relief, a right to the tools of labor, free credit, and so on and so on. “All these plans as a whole—with their common aim of legal plunder—constitute socialism.”
There are three possible ways to deal with plunder: the few plunder the many; everybody plunders everybody; nobody plunders anybody. (Given Aristotle’s observation that the many might also plunder the few, Bastiat’s first category should by ‘somebody plunders somebody,’ but that is a mere refinement.) It should be needless to say that Bastiat prefers the last choice, whereby nobody plunders anybody.
This means that Bastiat advocates what is sometimes called ‘negative liberty.’ “When law and force keep a person within the bounds of justice, they impose nothing but a mere negation. They oblige him only to abstain from harming others. They violate neither his personality, his liberty, nor his property. They safeguard all of these. They are defensive; they defend equally the rights of all.” The idea of just law “excludes the idea of using law (force) to organize any human activity whatever [presumably other than legislation and law enforcement] whether it be labor, charity, agriculture, commerce, industry, education, art, or religion.” Law may (for example) rightly restrain religious acts injurious life, liberty, and property—prohibiting the sacrifice of virgins to the sun god, let’s say—but it may neither encourage nor restrain religious practices that injure no one. Law must not be used for philanthropic purposes. The democratic-socialist president of France during the short-lived Second Republic, Alphonse de Lamartine, wrote to Bastiat, invoking the slogan of the French revolutionaries: “Your doctrine is only the half of my program. You have stopped at liberty. I go on to fraternity.” “I answered him: ‘The second half of your program will destroy the first.'” Bastiat explains that fraternity must be voluntary, and that fraternity cannot be “legally enforced without liberty being legally destroyed, and thus justice being legally trampled underfoot.” If selfishness or greed is one extreme that ruins liberty, the other is this “false philanthropy”—false because while it may be heartfelt it does not achieve its intended purpose, loving mankind not wisely but too well, thoughtlessly ardent in its enforced transfer from one person to another. “We repudiate forced fraternity, not true fraternity…. We do not repudiate the natural unity of mankind under providence.”
Bastiat admits of degrees of plunder, from the “limited” plunder of protectionism to the “complete” plunder of communism. Plunder “substitutes the will of the legislator for their own wills; the initiative of the legislator for their own initiatives.” Laws that plunder denature human beings by obviating the “need to discuss, to compare, to plan ahead,” making their intelligence, the distinctively human characteristic, “a useless prop.” “They cease to be men.” Public education only reinforces this malign practice by its tendency to indoctrinate, to discourage independent thought.
What about the third element of the French revolutionary slogan, equality? Bastiat claims (rather implausibly) that iniequality exists only because “old conquests and lootings”—acts of plunder by persons who eventually came to call themselves aristocrats—were legitimized, their economic and social results long since solemnized. Socialists are the new would-be aristocrats. Every socialist writer imagines “that he himself—under the title of organizer, discoverer, legislator, or founder—is this will and hand, this universal motivating force, this creative power whose sublime mission is to mold these scattered materials—persons—into a society,” rather as a gardener shapes trees and shrubs. Bastiat blames this ambition on “classical education.” Study of the classics is “the mother of socialism” because “conventional classical thought everywhere says that behind passive society there is a concealed power called law or legislator…which moves, controls, benefits, and improves mankind.” This same education seduced almost all of the major French thinkers from Bossuet to Fénelon to Montesquieu to Rousseau (“leader of the democrats”) to Raynal, Mably, and Condillac. Bastiat overlooks the possibility that these ‘moderns’ may have gotten the ‘ancients’ wrong, intentionally or by mistake. A founder or legislator as conceived by Machiavelli or Rousseau (for example) may differ from a founder as conceived by Aristotle, Livy, or Polybius.
Bastiat claims that later writers “did not understand that knowledge appears and grows with the passage of time; and that in proportion to this growth of knowledge, might takes the side of right, and society regains possession of itself.” In point of fact, the moderns above all touted the notion of human progress and therefore supposed that human institutions could be designed to rechannel human nature or even (as in the case of the later moderns) to transform it. The ancients were more modest—very much including Plato, whose ideal politeia is presented with Socrates’ characteristic irony. It is rather Bastiat who shares the optimism of the Enlightenment, replacing egalitarianism and fraternity with liberty as the agent of human perfection.
Bastiat’s negative liberty doesn’t aim at merely prevention of plunder and despotism. “Is not liberty the freedom of every person to make full use of his faculties, so long as he does not harm other persons while doing so?” By “organizing the right of the individual to lawful self-defense” and “punishing injustice,” and doing no more than that, law rightly understood will liberate human beings to achieve their nature. But to define liberty as power, to claim that civil societies owe every person an education aimed at ’empowering’ him, will have the opposite effect: “the total inertness of mankind, the omnipotence of the law, and the infallibility of the legislator.” This socialism is anti-social, “regard[ing] mankind as little better than mud”—clay in the hands of a Legislator who sets himself up as a god but is in fact nothing more than a would-be sculptor of dumb idols. And socialists who proclaim themselves to be egalitarians, to be democrats, respect elections only until they are safely in office. “The people are returned to assertiveness, inertness, and unconsciousness; the legislator enters into omnipotence.”
Attempting to subordinate politics altogether, Bastiat insists that “a science of economics must be developed before a science of politics can be logically formulated.” Economics, not politics, is “the science of determining whether the interests of human beings are harmonious or antagonistic.” After that question has been answered, the science of law must precede political science, inasmuch as “law is the common force organized to act as an obstacle to injustice,” that is, to minimize antagonism, maximize harmony, by restricting itself to matters of public safety, including the protection of property, but surely (he confidently anticipates) not to “regulate our consciences, our ideas, our wills, our education, our opinions, our work, our trade, our talents, or our pleasures.” This is where the “constitutional sheriff” can be fitted in, the person who represents “the collective force” which “use[s] force for lawful self-defense.” Beyond that, a society will travel “the high road to communism.”
Naively, Bastiat “def[ies] anyone to say how even the thought of revolution, of insurrection, of the slightest uprising could arise against a government whose organized force was confined only to suppressing injustice.” The people never rose against the Court of Appeals, the Justice of the Peace, “in order to get higher wages, free credit, tools of production, favorable tariffs, or government-created jobs.” Quite possibly so, but what has that to do with the tribe of the lion and the eagle? “If government were limited to its proper functions, everyone would soon learn that these matters are not within the jurisdiction of the law itself.” Yes, but tyrannical souls can dream, can’t they? Bastiat remarks, if “these organizers of humanity” claim that “the natural tendencies of mankind are so bad that it is not safe to permit people to be free, how is it that the tendencies of these organizers are always good?” Their answer will be, ‘We are the vanguard of historical progress.’ But even if, with Bastiat, one disbelieves such pretensions, Bastiat’s own argument only shows why the political problem is perpetual, not that liberty as he defines it will solve it. “The solution to the problems of human relationships is to be found in liberty.” But what if there is no solution to human problems, absent divine intervention?
Whether propounded by a citizen like Sheriff Mack or by a thinker like Frederic Bastiat, plans for reducing government to the function of protecting lives and property (broadly understood), minimize the importance of political regimes, and of political activity generally. They incline to reduce politics to sub-political categories (law enforcement, economics) without seriously considering the possibility that Aristotle is right to consider human beings political animals.
Note
- Gale was a white supremacist, a fact that looms large in any ad hominem argument against his movement. As with all ad hominem arguments, it cannot be used to refute his argument about lynching public officials, an argument which has its own difficulties, as Sheriff Mack evidently sees. Similar charges of racism against Mack and his associates themselves may or may not be true but also stand as irrelevant to the question of whether the arguments they actually make follow the principles of the Declaration of Independence and the Constitution.
- This point is lost on the Republican Party of Hillsdale County, Michigan, where I live, whose leaders endorse both the slogan, ‘Taxation is theft’ and the notion of constitutional sheriffhood.
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