On May 14, the U.S. Supreme Court considered the Professional and Amateur Sports Protection Act of 1992 (PASPA), which prohibited states from legalizing or regulating sports betting — apart from Nevada and some limited betting grandfathered into three other states. Six of the highest court’s justices ruled that provisions of PASPA were unconstitutional, and in so doing they rediscovered the Tenth Amendment to the U.S. Constitution, a clear statement of decentralized political power: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
To revive its casino industry, New Jersey had legalized sports betting despite the passage of PASPA, ultimately leading to this Supreme Court case. The National Collegiate Athletic Association, the National Basketball Association, the National Football League, the National Hockey League, and Major League Baseball all went to court to stop people from betting on the winners of their games. They lost.
“The Constitution confers on Congress not plenary legislative power but only certain enumerated powers,” the court said in its ruling. “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.”
The federal government should not be regulating gambling. But neither should the states or local governments. The only justification for regulation of gambling is to prevent rigged games or other fraudulent activity.
“This is a good decision as far as it goes,” said Nicholas Sarwark, chair of the Libertarian National Committee and a former trial lawyer. “It doesn’t go quite far enough, though. The Tenth Amendment grants powers not delegated to the federal government not only to the states, but also to the people. They forgot about the people.”
Eliminating laws against victimless consensual crimes would release about half of our prison and jail population and allow those people to be productive members of society rather than a drain on government resources.
“Libertarians are clear,” Sarwark said. “Consensual activity among adults should never be criminalized. That includes gambling, drug use, prostitution, and any other activity that does not involve hurting people, taking their stuff, or hiring politicians and government bureaucrats to do it for you.”
This Supreme Court decision will ultimately affect far more than sports betting, according to Sam Kamin, Vicente Sederberg professor of marijuana law and policy at the University of Denver and amicus contributor to the Murphy case.
“It is now clear that the federal government cannot prohibit states from implementing marijuana law reform,” Kamin wrote in The Hill. “Just as it cannot force the states to enforce the federal marijuana prohibition, it cannot require them to keep their own prohibitions in place, or force states that have regulated and taxed marijuana to undo such laws.”
Those often overlooked provisions at the end of the Bill of Rights are a powerful statement for individual rights and a blueprint for reducing government power, if the courts will acknowledge them.
“Revival of the Tenth Amendment, and hopefully also the Ninth Amendment, from dead letter status is a hopeful sign that could lead to smaller and less intrusive and meddlesome government,” Sarwark concluded. “Libertarians plan to help that process along by fielding more than 2,000 candidates for federal, state, and local office in 2018.”
