What gives Congress the power to make sports betting a crime?

By Seth Grossman, Political Columnist

?No gambling of any kind shall be authorized by the Legislature unless the specific kind, restrictions, and control thereof have been heretofore submitted to, and authorized by a majority of the voters.?

? New Jersey Constitution, Article 4, Section 7, Paragraph 2.


Since 1844, New Jersey voters allowed the Legislature to make several types of gambling legal in this state: bingo and raffles by certain organizations, the New Jersey State Lottery, casinos in Atlantic City, and betting on horse races.

On Tuesday, Nov. 8 we will vote on whether to change (amend) this section of the state constitution to allow another type of gambling ? betting on amateur and professional sports events ? but only at racetracks or Atlantic City casinos.

Unlike California and most western states, New Jersey voters have no power to put questions like this on the ballot by petition. We can only vote on these questions when three-fifths of the members of both the state Senate and state Assembly (or a simple majority in separate votes over two consecutive years) decide to let us.

During the past two years, local Democrats Jim Whelan and Jeff Van Drew worked with North Jersey Democrat Ray Lesniak in the state Senate, and Democrats Mat Milam and Nelson Abano worked with Democrats John Burzichelli and Lou Greenwald in the Assembly to put this sports betting question on the ballot.

Republican Gov. Chris Christie called these efforts ?pointless? since federal law makes sports betting a crime in New Jersey no matter what our state constitution says.

Nineteen years ago, Democratic U.S. Sen. Bill Bradley, a former college and professional basketball star, pushed through a federal law that made it a crime for anyone in the country to bet on any amateur or professional sports event, unless they did it in states where it was permitted by state law by the end of 1993.

New Jersey Republicans blocked efforts to let voters approve sports betting in the November 1993 elections. Some say they were bought off or bullied by Nevada money. Others say they were afraid a sports betting referendum would boost voter turnout in Democratic strongholds and make it harder for Republican Christine Todd Whitman to defeat Democratic Gov. Jim Florio.

So federal law permits sports betting only in Nevada and three other states that allowed it in 1993. It is a federal crime in the other 46 states including New Jersey.

Article VI of the U.S. Constitution states: ?This Constitution and the Laws of the United States which shall be made in pursuance thereof ? shall be the supreme Law of the Land ? anything in the Constitution or laws of any state to the contrary notwithstanding.

How can we avoid a federal law by amending our state constitution?

Lesniak, Whelan and the other Democrats claim the federal law against sports betting is unconstitutional, but they never say why. If they did, they would support tea party, conservative and libertarian arguments that federal laws against medical marijuana, Obamacare and federal government control of our schools, light bulbs and toilets are just as unconstitutional.

Article VI of the Constitution does not say that all laws passed by Congress are the supreme Law of the Land ? just laws made ?in pursuance? of the U.S. Constitution. Laws made by Congress that are not made ?in pursuance? of the U.S. Constitution do not invalidate contrary provisions of state laws or constitutions.

To make that point clear, Americans in 1788 refused to ratify the Constitution until 10 amendments, together called the Bill of Rights, were added to it.

The 10th Amendment, a key part of that Bill of Rights, states, ?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.?

Therefore, New Jersey can permit sports betting, unless something in the U.S. Constitution gives Congress the power to control gambling in an individual state.

The powers of Congress are listed or ?enumerated? in Article I, Section 8. They give the national government the power to address national problems that individual state governments could not handle on their own: regulating foreign trade and ?commerce among the several states,? delivering mail, patents and copyrights to protect inventors and writers, national defense, etc.

What in the U.S. Constitution gives Congress the right to make it a federal crime to bet on the outcome of a baseball or football game?

(Reprinted from October 19, 2011 Current-Gazette Newspapers of Atlantic and Cape May Counties, http://www.shorenewstoday.com/snt/news/index.php/politics/17409-what-gives-congress-the-power-to-make-sports-betting-a-crime.html)

Somers Point attorney Seth Grossman appears on 1400AM talk radio 3-4 p.m. Monday and Wednesday and on 92.1FM 8-9 a.m. Saturday. For information see www.libertyandprosperity.org, email


or call (609) 927-7333. Breakfast discussions are held 9:30-10:30 a.m. every Saturday at the Shore Diner on Fire and Tilton roads in Egg Harbor Township.

(Image Source – http://www.cartoonaday.com/images/cartoons/2010/11/BasketballBetting3-598×433.jpg)

  • Seth Grossman

    Seth Grossman is executive director of Liberty And Prosperity, which he co-founded in 2003. It promotes American liberty and limited constitutional government through weekly radio and in-person discussions, its website, email newsletters and various events. Seth Grossman is also a general practice lawyer.

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1 thought on “What gives Congress the power to make sports betting a crime?”

  1. Patrick J. McGowan

    Seth, I listen to you quite often and agree with you most of the time. I watched the ABC world news and they were telling us how much the occupy movement was costing, 2 million dollars in Boston so far. Last week I was in Boston on vacation and went by the occupy Boston people in the financial district. I talked to a couple of them and said hello to the police officers that were there, all great people. The problem is as I see it is that the police work for the politicians and the politicians are afraid, as they should be. Most of them have been dis-honest and greedy and not answering to the will of the people so, instead of saying I’m sorry we have been doing a bad job this is what we are going to do to correct it, they send the police who blindly obey every stupid order because their jobs depend on the politicians. We love or police department and appreciate the job they do but, they need to pick their battles wisely.
    In Boston ther were dozens of policeman just standing around the occupy Boston people which ther were maybe 30 or 40 and the occupy people were doing nothing and the police were doing nothing, of course the cops were on OT. Later in the day the occupy movement went on a march escorted by way many more police then marchers, they didn’t do anything, they could have been escorted by Barney Fife and Andy and everything would have been fine.

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