Nine Stories of Baby Ninths: Two—A Constitutional Gallon

Anthony Sanders · March 13, 2023

[This is the second in a series of nine posts on nine stories of how Baby Ninth Amendments made a difference in real cases. They’re part of the lead-up to the publication of the book Baby Ninth Amendments: How Americans Embraced Unenumerated Rights and Why It Matters.]

Have you ever transported one gallon of “spiritous, vinous and malt liquors”? Then you did what a Mr. Jake Williams did on July 10, 1907 in Burke County, North Carolina. He was indicted with having transported that gallon of liquor in violation of a state law that prohibited transporting more than half a gallon into the county. Burke was a “dry county,” where—with limited medical exceptions—no one could sell or make alcohol. To help facilitate that ban, transportation or more than half a gallon was deemed to constitute an intent to sell. However, it was not illegal to transport into the county a half gallon or less of liquor or to consume it.

This was only a few years before prohibition and dry counties were not at all uncommon. Even a few states were dry at this point. What was uncommon was what happened to Jake Williams at the North Carolina Supreme Court. In the trial court he successfully moved to quash his indictment. The state appealed. And then, on April 1, 1908 the state supreme court affirmed the dismissal in one of the most energetic affirmations of judicial engagement you will ever read. Along the way it invoked the North Carolina Constitution’s Baby Ninth Amendment. Which is why this case is one of our Nine Stories of Baby Ninths.

Shooting for the moonshine

The case is a light one on facts. About all we know of what happened to Williams is that he was indicted for transporting into the county a gallon of liquor (exactly what kind of liquor is unclear). The indictment also said that he brought the liquor into the county “with force and arms.” Yet, there’s no evidence he was indicted or otherwise charged for any crime of violence or illegal weapons possession. So it may have simply been that he was armed while carrying the liquor. We also don’t know if he was in an automobile, on a horse (it was 1907, after all), on a train (perhaps stopping at the Morganton Depot?), or on foot. Further, we know that although Williams moved to quash the indictment in the trial court neither he nor an attorney on his behalf appeared at the Supreme Court. Just the attorney general. And yet, Williams won!

After stating the sparce facts the majority opinion exploded with quotes and affirmations on the power of judicial review. Such as “It is the right of the citizen, when called to the bar of the court, to appeal to the Constitution and demand that the court declare whether the statute which he is charged with violating be ‘the law of the land.’”

Although Williams didn’t argue at the supreme court, the majority cited to his motion from below, which invoked a number of provisions in North Carolina’s then-Constitution (adopted in 1868). This included:

  • Article I, Section 1: “among the inalienable rights of all men are life, liberty, the enjoyment of the fruits of their own labor, and the pursuit of happiness.”
  • Article I, Section 17: “No person ought to be taken, imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land.”
  • Article I, Section 37: This enumeration of rights shall not be construed to impair or deny others, retained by the people”. (The Baby Ninth Amendment.)

The court also repeatedly referred to the state constitution as the expression of the people’s sovereignty and the various branches of government as subordinate to it, contrasting this to the British system of Parliamentary supremacy. (Someone else has done this as well.)

Selling a gallon? Seriously?

After this windup the court examined the nature of the liquor law he was charged with breaking. It did not question that the state had the power to outright prohibit the production and sale of liquor. Yet, it found troubling the fact that a near-prohibition was in place while allowing for possession of a half gallon or less. A private possession of a half gallon was not only legal, asserted the court, but something that “‘neither produces nor threatens any harm to the public.’” It also pointed to the exceptions for medical use, and possession by pharmacies and hospitals. And it implied that possession of a little bit more—William’s one gallon—was not that different than the lawful half gallon. It was such a small amount that there was an “improbability of any reasonable person carrying” it with the intent to sell. Thus, asked the majority, “can it be insisted that any such real or substantial relation to the sale exists?”

Like many unenumerated rights cases, the opinion did not parse too closely the various clauses of the state constitution. The Baby Ninth was cited to demonstrate that there were rights that were protected beyond those enumerated and that the court had a duty to protect them. The court placed some emphasis on the “fruit of their own labor” language of Section 1, but the primary thrust of its reasoning was simply that the prohibition of possessing a small amount of liquor was not reasonably related to the real and constitutional purpose of prohibiting its sale in the county.

There was also a dissent (which you can find at this link). Essentially it read the protections of the state constitution narrowly and found no “right” to bring any amount of liquor into the county. This despite the Baby Ninth’s admonition to not “impair or deny others, retained by the people.”

Freedom to fiddle

As for Jake Williams, we don’t know what happened to him after his indictment went away. Was he actually a big-time bootlegger who was lucky enough to be caught with only a gallon? Or was he a simple family man just bringing home some tipple for himself and his family? Like our story from last week we don’t know. But I like to think it’s the latter.

Burke county is a rural area in the uplands of North Carolina that today is a bit over an hour’s drive from Charlotte. Visitors in 2023 can enjoy the various ski slopes, golf courses, and forested parks in the area. Times were different, of course, in the day of Jake Williams. In the 1910 U.S. Census the county had just over twenty-one thousand people living there. In keeping with much of the Appalachian upcountry, its European immigration had predominately been of the “Scott-Irish” variety—hearty people who came from a culture of widespread poverty and the ever-present threat of violence. (“Scotch-Irish” is a bit of a misnomer. It’s a generic term for immigrants generally from today’s Northern Ireland, the Scottish lowlands and the Scottish and English borders.) Perhaps Jake was one of these and a gallon of drink was a way to make a hard life a little bit easier.

Another way to make life a little bit easier is through music. Scotch-Irish culture famously introduced its fiddle-centric music into America, eventually giving us bluegrass, modern country, today’s folk, and other varieties. A tiny example of this is reported in the Morgantown (the seat of Burke County) News-Herald of January 6, 1910. An item in the paper detailed an “Old Fiddler’s Convention” in the recent week between Christmas and New Years. At the convention there was a fiddling competition. And one of the prizes went to a Jake Williams, who walked away with two dollars. Was it the same man as the one who transported a gallon of constitutional booze? I don’t know, but if it was then we can credit North Carolina’s Baby Ninth Amendment as having helped him stay free and play his fiddle.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.