The Supreme Court issued a landmark ruling today, paving the way for states to legalize sports gambling. This will have massive reverberations across the country, and not just when it comes to betting on sports. This case is a distillation of the tension between state and federal governance in America. Sports gambling was illegal in the United States thanks to the 1992 Professional and Amateur Sports Protection Act that made Nevada the only state where someone could wager on the results of a single game.
The Supreme Court today decided that federal law violated the 10th Amendment, which was the founders’ failsafe as a way to guard against unforeseen circumstances. Effectively, the 10th Amendment means that the states have powers which are not expressly delegated to the federal government, and because the constitution doesn’t say anything about gambling on sports, seven of our nine justices agreed that the Professional and Amateur Sports Protection Act doesn’t line up with our constitutionally stated principles. This is where marijuana legalization comes into play.
The United States federal government has declared marijuana to be a schedule one narcotic—meaning that it has “no currently accepted medical use and a high potential for abuse,” according to the Drug Enforcement Administration. Other schedule one narcotics include peyote, ecstasy and heroin—proving beyond a shadow of a doubt the utter insanity of this position. The list of states who have defied this classification is longer than those who adhere to it.
Colorado, Washington, Oregon, Alaska, Nevada, California, Massachusetts, Vermont and Maine have legalized it for recreational use, while Montana, Arizona, New Mexico, North Dakota, Minnesota, Michigan, Illinois, Arkansas, Hawaii, Ohio, West Virginia, Pennsylvania, New York, New Jersey, Connecticut, Delaware, Rhode Island, New Hampshire, Maryland and Florida have legalized medical marijuana. Eventually, a court will have to choose who gets to take the lead on this issue, and it’s difficult to see how banning marijuana is a power explicitly given to the federal government.
Like sports betting, the constitution didn’t leave any room for marijuana legalization, so the DEA’s position should seemingly be a 10th Amendment violation by the United States federal government. Plus, there are other cases that buttress marijuana legalization’s case on this issue. Precedent is the most important predictor of how our Supreme Court will act. Per Justice Sandra Day O’Connor on behalf of the majority opinion of the Supreme Court in New York v. United States (emphasis mine):
This case implicates one of our Nation’s newest problems of public policy, and perhaps our oldest question of constitutional law. The public policy issue involves the disposal of radioactive waste: in this case, we address the constitutionality of three provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985. The constitutional question is as old as the Constitution: it consists of discerning the proper division of authority between the Federal Government and the States. We conclude that, while Congress has substantial power under the Constitution to encourage the States to provide for the disposal of the radioactive waste generated within their borders, the Constitution does not confer upon Congress the ability simply to compel the States to do so.
So the logic would go: if the Supreme Court has already found that Congress is not allowed to order states how to dispose of their radioactive waste—a power obviously not delegated in the constitution—how can they compel states to comply with federal law on a similarly ambiguous topic? Not to mention, the Supreme Court has already deemed one federal marijuana act to be unconstitutional, and you can draw a direct line between that and current law.
The Controlled Substances Act made marijuana illegal in 1970, which had to be created because the Marijuana Tax Act of 1937 was unanimously deemed unconstitutional in Leary v. United States. Marijuana prohibition is actually a very recent phenomenon, and stop me if this sounds familiar, but it arose out of a panic from Mexican immigration. The law effectively banning it in 1937 was accompanied by a litany of racist imagery and utterly insane lies. White America effectively argued that they needed to ban the drug in order to protect white women. This wasn’t some fringe belief either, as exemplified by the first commissioner of the Federal Bureau of Narcotics (the predecessor to the DEA), Harry Anslinger, when he said:
“There are 100,000 total marijuana smokers in the U.S., and most are Negroes, Hispanics, Filipinos and entertainers. Their Satanic music, jazz and swing result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others.”
“Reefer makes darkies think they’re as good as white men.”
Marijuana prohibition is an explicitly racist law that has already been repudiated by most states. However, as Jeff Sessions’ Department of Justice has demonstrated, so long as federal law is in place, enforcement agencies can assert that it supersedes state law. If you’re confused, welcome to the federal government’s hypocrisy surrounding the 10th Amendment, where states de jure should already have these rights, but in order to obtain them de facto, they must present the case to a judge.
Prior to today’s Supreme Court ruling on sports betting, 18 states already drafted bills to legalize betting on sports. The fact of the matter is that states are battling budget crunches across the country, and marijuana and gambling are the two most immediate sources of serious revenue that states can tap into. It’s crazier to keep them illegal given our hyper-inequality, low taxation and even less funding for social services. Today’s Supreme Court ruling ensures that it’s just a matter of time before some well-funded group gets in front of the highest court in the land to prove the hypocrisy and illegality of America’s marijuana prohibition once and for all.
Jacob Weindling is a staff writer for Paste politics. Follow him on Twitter at @Jakeweindling.