Constitutional Mumbo Jumbo

November 7, 2022

In Kansas, voters get to decide on Election Day whether or not sheriffs should be a “constitutional office.” Currently, they're not, much to the dismay of “constitutional sheriff” Calvin Hayden of Johnson County, who has been spreading misinformation about Kansas Constitutional Amendment 2.

Hayden has been in the news since the summer as one of the far-right sheriffs who partnered with Richard Mack, the Constitutional Sheriffs and Peace Officers Association, and True the Vote to encourage sheriffs to pursue claims of “election fraud.” Local reporters found out that Hayden had already been inserting himself into the (normally uneventful) process of voting and counting ballots, but to date, he has found no fraud.

With the referendum, Hayden has again appeared in various local Republican forums to stump for Amendment 2. These partisan undertakings have not improved his reputation for accuracy, as for example when he posted on the department’s Facebook page that voting no on Amendment 2 would “take away your right to elect your local sheriff,” as if failing to amend a constitution could somehow upend extant election procedures. 

Hayden is just wrong, of course. If the amendment does not pass, counties keep their elected sheriffs. In Kansas, as in a minority of states, the sheriff is a creature of state legislation. This would not change, regardless of the proposed constitutional amendment. The proposed amendment would, however, make it harder to remove a sheriff. The current system allows the county prosecutor to initiate proceedings to remove a sheriff; the amendment would keep a recall process but shift it away from local prosecutors to the state attorney general.

The idea behind enshrining sheriffs in the constitution is to make the office “more permanent” – as what the legislature maketh, it can taketh away – which is another way of saying less accountable. What does this mean in Kansas? For one thing, counties can eliminate the office of sheriff; one county did and replaced the sheriff with a county police system. If the amendment passes, counties would be unable to replace their sheriff’s office. It so happens that Johnson County, where Hayden is sheriff, did consider altering the county charter to provide more oversight of the sheriff’s office. (This was part of a 10-year review of the county charter in which various amendments are proposed.) The changes did not pass. (Last year, Florida passed something similar, and Miami is in the process of re-creating a sheriff’s office it had previously eliminated.)

Hayden and the CSPOA continue to make hay out of the alleged “constitutionality” of the sheriff’s office. To explain: Many sheriffs are established through state constitutions, alongside a list of other county officials, like judges, prosecutors, etc. Every square inch of a state is in a county (with the exception of Hawaii and Alaska, which don’t have sheriffs), and state constitutions set up county government. Cities, on the other hand, usually incorporate through some kind of state process and set up their city government at that time. (There are different types of counties, like home rule counties and charter counties, but I’m not going to get into that here.)

Sheriffs are actually established by about 2/3 of state constitutions; in the rest, sheriffs’ offices are creatures of the legislature. But even where sheriffs are a constitutional office, they are also subject to state legislation. Legislators generally decide everything from what sheriffs get paid, to what they do to how they can be removed from office. Some states treat their state constitutions with more reverence – remember, this is state law – so there are a variety of ways in which courts have interpreted the “constitutionality” of the sheriff’s office. But this does not mean that sheriffs have any extraordinary powers because of their constitutionality (or not).

Now, I would argue that it makes no sense to have elected sheriffs, and it makes even less sense to treat state constitutions as somehow thoughtful exercises in popular sovereignty and government theory. At the time these constitutions were written – often sloppily and lazily – there was no police state as we know it, no mass incarceration, and – most importantly – no funding from the federal level. “Policing” wasn’t a field of study and regulation, just in many states like there also weren’t nuclear power plants, pre-packed meals, or paved roads.

Though I am no mind reader, I suspect I know why far-right sheriffs are so fixated on “constitutionality” and not creating legislation – it’s because the far-right opposes the so-called administrative state. A right-wing think tank like the Claremont Institute (and, currently, the Supreme Court) would happily eliminate administrative agencies like the FDA, the EPA, and IRS, etc etc. “The Police” is, of course, another administrative agency (as are ICE and DHS) but consistency is the hobgoblin of small minds, right?

Take the testimony of Special Deputy Greg Smith of the Johnson County Sheriff’s Office. He testified in favor of Amendment 2, focusing on how elected sheriffs are “beholden to the electorate,” not county supervisors. Here’s Smith writing that he, among all the other members of his county’s Charter Commission, was uniquely able to listen to the people.

Under this logic, if you are an administrator of the police state, that’s not a very justifiable position. It’s pretty uncool in the eyes of the hardcore far-right. But, if you are a constitutional officer endowed with … originalisms? … well then, in addition to extra special listening powers, deference becomes mandatory.  “Constitutional” is to sheriffs what “stare decisis” is to judges, except without even that logic.  It’s just a talismanic incantation to justify unchecked, unreviewable power.  Power, one suspects, that only “care[s] more what” a very certain subset of “citizens were saying.”