The 10th Amendment to the Constitution is perhaps the most important of James Madison’s many contributions to the nation’s founding documents. Unfortunately for advocates of limited, enumerated government, its power has been eclipsed by the continuing growth of government in Washington.
The amendment’s purpose, to “present obstructions which the federal government would hardly be willing to encounter,” as Alexander Hamilton wrote in Federalist 28, was to safeguard state power and the power of the people from being intruded upon by the federal government. Former U.S. Senator Bob Dole used to carry a copy of it around with him as a reminder his power as a legislator and the power of Congress were, by design, limited.
It has not worked out that way. Government has grown in size and influence to a point beyond what many scholars believer was the founders’ intention. That may soon change as the United States Supreme Court is considering a case that may begin the process of putting the genie at least partways back in the bottle. On December 4 the justices heard oral arguments in Christie v. National Collegiate Athletic Association which, depending on how it is decided, may rekindle the spirit of Madison’s original intent.
The case is about the Professional and Amateur Sports Protection Act, a piece of restrictive legislation that prevented states from legalizing sports-related gaming unless a state had previously authorized commercial gaming at least 10 years before the act was passed. States wanting to have legal sports gambling were given an unrealistic window of time to change their laws in line with the exemption.
Despite Congress’ efforts to enact bans of various types Americans spend billions on gaming, both legal and illegal, every year. It’s a major industry experiencing considerable growth as state leaders look for creative ways to increase revenues. New Jersey legalized table games and casinos decades ago and, 20 years after PASPA went into effect, got around to making betting on sports legal as well.
After it did it was dragged into court by the NCAA and found, eventually, to be in violation of federal law, though the decision by the U.S. Court of Appeals was not unanimous. Three judges dissented and New Jersey decided to appeal the case to the next level.
The high court will soon rule on whether New Jersey is correct in its argument that Congress did not outlaw sports gambling, but merely froze it in place to prevent its expansion beyond where it was in 1992. The state’s belief it is being conscripted into enforcing a law they want to repeal is persuasive and, should, under the plain reading of the 10th Amendment, be enough to carry the day.
Justice Anthony Kennedy, likely the swing vote in the case, seemed to agree as the case was presented. “The citizens of the State of New Jersey are bound to obey a law that the state doesn’t want but that the federal government compels the state to have,” he said, adding “That’s precisely what federalism is designed to prevent.”
Since gaming regulation is omitted from the list of enumerated powers granted to the federal government by the Constitution, it is a seemingly sensible conclusion to say neither New Jersey nor any other state can be compelled by the federal government to ban legal betting sports, or for that matter compel it.
Justice Kennedy may have tipped his hand. It’s difficult to know but the implications of the case go beyond just sports betting. New Jersey and nearly half a dozen other states are being pushed to rescind their decisions to sell lottery tickets online. If successful, this new restriction would cost New Jersey alone hundreds of millions annually in revenue
Many constitutional questions are difficult, but when it comes to gambling, it’s simple: the Founding Fathers gave states the right to decide their own gambling policies. There is no argument to be made successfully that Utah, which bans all forms of gambling, should be required to legalize it. It must therefore be true conversely that federal prohibition is equally out of order.
The high court could do much to restore the balance of power between Washington, D.C., and the states by finding in New Jersey’s favor.