The relation between the fifty states and the national government under the U.S. Constitution is a federal one in which power is divided and shared between the states and the national government.
Or at least it is supposed to be a federal relationship.
James Madison succinctly explained this simple federal system of government in Federalist No. 45:
The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part be connected. The powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement, and prosperity of the State.
In contrast, the relationship between the states and their counties, cities, and towns is not a federal one. Those entities are not sovereign. Whatever power they exercise is granted or delegated by their state governments.
Article I, Section 8, of the Constitution spells out in eighteen paragraphs the “few and defined” powers granted to the national government. One paragraph each is devoted to commerce, naturalization and bankruptcies, post offices and post roads, copyrights and patents, federal courts, maritime crimes, and the governance of the District of Columbia. Four paragraphs concern money or taxes. Six concern the military or the militia. The list of powers delegated to the national government concludes with the power “to make all laws which shall be necessary and proper for carrying into execution the foregoing Powers.”
It should be noted that there is no article that grants any powers to the states, because the states existed before the Constitution and retained their sovereignty when they ratified the Constitution.
The Bill of Rights that was added to the Constitution in 1791 protects the rights of the people. It grants to the national government no additional powers. In fact, the Ninth and Tenth Amendments of the Bill of Rights further protect rights and reinforce federalism:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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.
Of the constitutional amendments that were added later (11-27), only two of them directly increased the power of the national government. The Eighteenth Amendment allowed the national government to prohibit the manufacture and sale of alcohol, but only until it was repealed by the Twenty-First Amendment. The Sixteenth Amendment allows Congress to levy an income tax without apportioning it among the states.
So, why the civics lesson?
I’m afraid that federal gambling laws have reared their ugly head again.
The Third U.S. Circuit Court of Appeals in Philadelphia recently ruled against a New Jersey law authorizing sports gambling in the state, upholding a lower court ruling that voided the state’s repeal of some prohibitions against betting on games. The 2-1 ruling prevents New Jersey from joining just four other states (Nevada, Oregon, Montana, and Delaware) that are allowed by the federal government to have sports betting. Maryanne Trump Barry, the sister of Republican presidential candidate Donald Trump and a judge on the court, voted with the majority. According to Geoff Freeman, president of the American Gaming Association, the casino industry’s national trade organization, Americans bet “at least $140 billion on sports illegally each year.”
The Restoration of America’s Wire Act (RAWA) was recently introduced in the U.S. Senate by Republican presidential candidate Lindsey Graham. It is co-sponsored by another Republican presidential candidate, Marco Rubio. This legislation seeks to restore what opponents of online gambling believe to be the original and correct interpretation of the 1961 Federal Wire Act that specifically prohibited “betting or wagering” using “a wire communication facility for the transmission.” The Federal Wire Act was reinterpreted by the Justice Department in 2011, which concluded that “interstate transmissions of wire communications that do not relate to a ‘sporting event or contest’ fall outside the reach of the Wire Act.” The RAWA, as explained by former Republican congressman and presidential candidate Ron Paul, who opposes the legislation, “makes it a federal crime to gamble online.” “It nullifies laws in three states allowing online gambling and it pre-empts ongoing debates in several states considering legalizing Internet gambling.”
But in spite of each of these undertakings, the U.S. national government has been delegated by the Constitution no authority whatsoever to legislate, regulate, monitor, or dictate to the states anything related to gambling. There is nothing in the Constitution that relates in any way to gambling — or any other vice for that matter. Gambling was not unknown to the Framers of the Constitution. It has been around in various forms for thousands of years. The absence of any mention of gambling in the Constitution was therefore deliberate. None of the twenty-seven amendments to the Constitution relates in any way to gambling. During the Progressive Era, when the national government wanted to prohibit another vice — drinking alcohol — it proposed a constitutional amendment, which it sent to the states, that, if ratified, would give it the power to prohibit for beverage purposes “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof.” If the states had rejected the proposed constitutional amendment — instead of the requisite number of them ratifying it on January 16, 1919 — the Prohibition Era would not have begun a year later on January 17, 1920.
That means that members of Congress who introduce, debate about, hold hearings on, and pass bills that relate in any way to gambling, just like rule-making bureaucrats in government agencies who issue gambling regulations, are woefully ignorant of basic middle-school civics. In our federal system of government, only the states can legislate and establish regulations concerning gambling. The states could choose to not do anything relating to gambling within their borders, make some basic rules for its operation, regulate it, control it, tax it, or ban it altogether. But whatever a state chose to do would have nothing to do with any action of the federal government.
No member of Congress, no federal official, no Democratic or Republican presidential candidate, and no liberal or conservative think tank is even questioning the legitimacy of the federal government’s involving itself with restricting and regulating gambling — even though it is a gross violation of federalism and the Constitution.
To the libertarian, such questioning would be a good and necessary first step, but still a long way from a free society. Even though the states may have the power to legislate and establish regulations concerning gambling, it does not follow that it would be a good thing or a legitimate purpose of government for them to do so.
Casinos are illegal in most states. In states where they are legal they are heavily regulated. Most forms of public and private gambling are forbidden. Yet most states have state lotteries — which are just as much a form of gambling as playing slot machines, roulette, blackjack, or poker — and state residents are encouraged to “play the lottery.” It is the height of absurdity for states, on the one hand, not just to permit a statewide lottery, but to actually run a lottery themselves and, on the other hand, to prohibit other forms of gambling. What governments don’t like is unregulated gambling. It is strictly forbidden, but not because it is immoral, addictive, or ruinous. It is prohibited because the government doesn’t get a cut of the action.
But even as the government permits and promotes gambling, it plays the role of a nanny state—with a great deal of support from religious groups and secular moralists—and demonizes gambling. And, as Ron Paul made clear in his opposition to the RAWA, “a ‘conservative’ nanny state is just as unconstitutional, and as dangerous to liberty, as a liberal one.” “Those with moral objections to gambling,” he explains, “have the right to try to persuade their fellow citizens to not gamble. What they do not have the right to do is use government force to stop people from engaging in activities, like gambling, that do not involve force or fraud.”
In a libertarian society, that is, a free society, there would be no laws or regulations of any kind at any level of government — national, state, or local — concerning gambling. The decision to gamble — like the decision to abuse drugs or alcohol, partake in dangerous activities, smoke or chew tobacco, engage in risky behavior, or commit fornication or adultery — is a personal and individual decision and none of any government’s business as long as one’s conduct and interactions are peaceful, voluntary, and consensual.