Every law student learns about “judge-made law.” No one talks about jury-made law.

For many years South Carolina had rigid limitations on serving alcoholic beverages. This was a huge handicap to restaurants.

While the rest of South Carolina enforced these restrictions, there were open bars in Charleston. It is said that in the 1940s Governor Johnston (“a personal and political dry”) once called the Mayor of Charleston and told him to close those bars.

The Mayor replied, “You close them.”

That was the end of the debate. Charleston stayed wet while the rest of the state played with liquor-by-the-drink laws.

Finally a bartender in Columbia hit upon a grand scheme. He sold SETUPS. He GAVE away little liquor bottles the customer could pour into the nonalcoholic setup he bought.

A judge ruled in his favor. The judge said, “There is no law against a man giving away his liquor.”

Liquor by the drink became legal. That’s why so many South Carolina bars give you those little bottles. But this was not judge-made law. This was jury-made law.

The reason the judge made that decision was because no jury would convict those who served mixed drinks any more. The juries had repealed the law.

Exactly the same thing has happened over and over in Anglo-Saxon history. The laws on the books in the early ninteenth century still made picking pockets a capital offense, but no jury would convict because they simply wouldn’t hang a ten-year-old child.

In 1834, Andrew Jackson did what no president since had the guts to do. The Supreme Court made a decision, and Jackson said, “The Supreme Court made this law. Now let the Supreme Court ENFORCE it.”

If any President since had had that kind of courage, there would be no judge-made law.

The unique characteristic of Anglo-Saxon law is that everyone has a right to a jury trial. The legislature may have passed the law unanimously, but it doesn’t mean a thing if the jury won’t enforce it.

When I was coming up, if anyone had sold drugs on school grounds, a parent would have blown his head off, in public, with a twelve-gauge shotgun loaded with 4s.

Under the law, that was cold-blooded, premeditated, first degree murder.

And no jury would have convicted him.

Back then, nobody sold drugs on school grounds.