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Sports Gambling Legalized?

The libertarian perspective on issue

Does not violate the non-aggression principle

No one takes your stuff without your consent

No one beats you up

Who gets to choose if you gamble on sports?

You

Someone else

The supreme court’s view

Justice Alito writes majority 6-3 opinion

PASPA ruled unconstitutional for wrong reason

The Professional and Amateur Sports Protection Act

 

The Professional and Amateur Sports Protection Act (PASPA) makes it

unlawful for a State or its subdivisions “to sponsor, operate, advertise,

promote, license, or authorize by law or compact . . . a lottery,

sweepstakes, or other betting, gambling, or wagering scheme based

. . . on” competitive sporting events, 28 U. S. C. §3702(1), and for “a

person to sponsor, operate, advertise, or promote” those same gambling

schemes if done “pursuant to the law or compact of a governmental

entity,”

 

And the Constitution indirectly restricts the

States by granting certain legislative powers to Congress,

see Art. I, §8, while providing in the

 

Supremacy Clause

that federal law is the “supreme Law of the Land . . . any

Thing in the Constitution or Laws of any State to the

Contrary notwithstanding,” Art. VI, cl. 2. This means that

when federal and state law conflict, federal law prevails

and state law is preempted.

[Actual text of the article VI clause 2 supremacy clause:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.]

[Laws passed that are unconstitutional are not the “supreme law of the land.”  Reductio ad absurdum.  Congress passes law that says you must kill your firstborn child.]

 

The legislative powers granted to Congress are sizable[see Madison contradicting statement],

but they are not unlimited. The Constitution confers[should be delegates] on

Congress not plenary legislative power but only certain

enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms.  And conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States.[How about the power to prohibit gambling not in article 1 section 8?]

 

…The PASPA provision at issue here—prohibiting state

authorization of sports gambling—violates the anticommandeering

rule.

…It is as if federal officers were installed in state legislative

chambers and were armed with the authority to stop

legislators from voting on any offending proposals. A more

direct affront to state sovereignty is not easy to imagine.

…Congress can regulate sports gambling directly but if it elects not to do so each state is free to act on its own.[Again, no authority in article 1 section 8 to regulate sports gambling]

Article 1 Section 8 of the U.S. Constitution

Does not authorize much of what Congress has done

Social security

Providing health insurance

Involvement in education

Prohibition of alcohol and drugs

18th amendment established alcohol prohibition

21st amendment repealed the eighteenth amendment

Prohibition of gambling

The text

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

 

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

 

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

 

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

 

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

 

To establish Post Offices and Post Roads;

 

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

 

To constitute Tribunals inferior to the supreme Court;

 

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

 

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

 

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

 

To provide and maintain a Navy;

 

To make Rules for the Government and Regulation of the land and naval Forces;

 

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

 

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Comments by the Founding Fathers

Federalist 45- James Madison

“The powers delegated by the proposed constitution to the federal government are few and defined,” not “sizable” as Justice Alito writes in this opinion.

Federalist 39- James Madison

“The local or municipal authorities form distinct and independent portions of supremacy, no more subject in their respective spheres to the general authority than the general authority is subject to them within their own sphere.  In this relation then the proposed government cannot be deemed a national one because its jurisdiction pertains to enumerated objects only and leaves to the states a residuary and inviolable sovereignty over all other objects.”

Federalist 83- Alexander Hamilton

“An affirmative grant of special powers would be absurd as well as useless if a general authority was intended.”

Madison in 1792 on the House floor regarding the Constitution’s commerce clause

“I venture to declare it as my opinion, that, were the power of Congress to be established in the latitude contended for, it would subvert the very foundations, and transmute the very nature of the limited government established by the people of America.”

 

… “If Congress can employ money indefinitely to the general welfare and are the sole and supreme judges  of the general welfare they may take care of religion into their own hands; they may appoint teachers in every state, county and parish; they may pay them out of the public treasury; they may take into their own hands the education of children establishing in like manner schools throughout the Union; they may assume provision for the poor; they may undertake the regulation of all roads other than post roads.  In short, everything from the highest object of state legislation down to the most minute object of police would be thrown under the power of Congress, for every object I have mentioned would admit the obvious application of money that might be called provisions for the general welfare.”

 

LMV:  In other words, the general welfare, necessary and proper, and commerce clauses were not powers of their own but descriptions of the purposes of those limited and enumerated powers already mentioned in the Constitution.

Libertarian Humor

This graphic shows some people crawling under a barbed wire fence.  The caption reads “Look at me crawling under barbed wire to escape free market capitalism.  Said no one ever.”

Reminiscent of the wall separating East Berlin from West Berlin

Reagan “tear down this wall” clip

LMV:  That’s the show.  See you next time.