FEDERAL ANTI-ONLINE GAMBLING LEGISLATION AND THE UNITED STATES CONSTITUTION
Something we can all agree on?

by norton weisner

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As we shall see in this article, there is general agreement amongst the founding fathers, modern conservatives, liberals, gambling law experts, and the general public that any anti-online gambling legislation implemented by the United States federal government - whatever its specifics - is contrary to the letter and to the spirit of the United States constitution.

Before going into the exact reasons why federal anti-online gambling legislation is generally considered to be unconstitutional, it is interesting to note that law concerning gambling in general has a history in this context. It seems that anti-gambling tends to be a cause willingly championed by politicians wishing to make a name for themselves regardless of the constitutional implications, and the public interest generated by the issue and the recent small extra-legal successes the federal government has won (namely, the pressure put on financial institutions) suggest that there is some justification for this choice of topic as a cause to champion. To be specific, the Bradley Act of 1992 stands out as a particularly frightening example of federal disdain for the constitution when gambling is concerned. To quote the exact text contained in the law, the Bradley Act made it illegal for "a governmental entity to sponsor, operate, advertise, promote, license or authorize by law or compact a lottery, sweepstakes or other betting, gambling, or wagering scheme based, directly or indirectly."

The unconstitutional nature of this act of congress brings us to the main reason why it is argued that anti-online gambling is also unconstitutional. Like any potential anti-online gambling legislation, the Bradley Act directly interferred with the activity - most notably the ability to raise funds - within individual states in areas not specifically designated to the federal government by the US Constitution, an action which directly contravenes the tenth amendment of the US Constitution. The tenth amendment is the last of the ten amendments to the US Constitution which make up the Bill of Rights, the document which was largely motivated by the fears of the individual state governments of too much federal interference in the running of their affairs. In particular, the tenth amendment which states:

Therefore is seems clear that the decision of whether or not people should be allowed to gamble online lies with the individual states or with the people, and the general consensus of both the above seems to be not to make criminals of gamblers, either online or on land. 47 out of 50 US states have legalised gambling of at least some variety or other. Courts throughout the Union have generally held that regulation of gambling is a power reserved to the states by the Tenth Amendment to the Constitution. In a CNN poll published on their website, 76% of voters agreed that Internet gambling should not be made illegal. I. Nelson Rose, the leading American expert on the legalities of gambling and author of the book "Gambling And The Law" is unequivocal in his condemnation of ALL federal law concerning any form of gambling as unconstitutional.

In this context, even the attempt to bring the Wire Act up to speed with the existence of the Internet is unconstitutional in nature. The federal government has the constitutional right to interfere with commercial activity which crosses state boundaries and the Wire Act originally only applied to phoneline gambling between US states. The addendum to this act in reference to Interent gambling included gambling within a state's borders, thus transforming a constitutional act into an unconstituional one.

Even the strongly anti-gambling conservatives in the form of the Free Congress Foundation condemn anti-online gambling legislation, which they say "flies in the face of conservative principles of federalism, individual responsibility, and limited government". They even condemn federal government attempts to regulate gambling funding as "Big Brother" tactics which forces credit card companies "to monitor our online activities and report them to the government".

Other aspects apart from the tenth amendment are also cited by many as strong argument against legislation to ban online gambling. The first amendment itself is sometimes mentioned, the argument being that online gambling is a means of peaceful congregation or even a religion. This argument is obviously weak if not spurious, but it doesn't do the cause any harm. The United States is, afterall, the land of the free and adults should be allowed to spend their money and free time as they choose so long as no one else gets hurt. Some may consider it to be a waste of money, but that is obviously no reason to make it illegal or where would that end? Others quote the famous constitutional "unalienable rights to the Pursuit of Happiness", and in this context it is worth noting that the authors of these words were avid gamblers themselves. Thomas Jefferson, George Washington, Benjamin Franklin, and John Hancock all actively participated in a wide range of gambling pursuits and also actively sponsored, promoted and ran gambling activities and institutions.

If history tells us anything, it's that nothing can be taken for granted. With the removal of a couple of key building blocks, a civilisation can become a bloodbath of cavemen in alarming rapidity. As we were warned at the last election between Gore and Bush when the outcome was unknown for weeks, things can become shaky very quickly and unexpectedly, which is why we have a constitution. The success of the United States over the past two and half centuries is testimony if anything to the wisdom of the founding fathers so we should listen to them. Their voice, in our view, is unequivocal. When it comes to gambling of any flavor, a man has the right to dispose of his income any way he sees fit as long as he does so peaceably. And if, as a small minority still believe, online gambling is considered in any way a threat to the peace and prosperity of our nation, then that is a matter for the state legislatures, not the federal government.