When does a gambling prohibition not prohibit gambling? Or an alternative Mad Hatter's riddle and how it helps us to understand constitutional change in New York.

• Author: Benjamin, Gerald

1. INTRODUCTION

   "When does a gambling prohibition not prohibit gambling?"

   This--not "'[W]hy is a raven like a writing desk?'"--might have been the Mad Hatter's riddle for Alice, in Wonderland. (1) Of course, it was not--maybe because Lewis Carroll was not a New Yorker, or maybe because, when Carroll wrote, the facts of the matter did not present such a paradox. Whatever the reason, if Carroll were writing today, he certainly would not choose this modern alternative. The reason? The Mad Hatter's riddle was designed to be unanswerable, (2) whereas the answer to this one is just too easy:

   "A gambling prohibition does not prohibit gambling when it is in the New York Constitution."

   As the second decade of the twenty-first century began, parimutuel betting on horse races was occurring routinely not only at New York's ten race tracks, but also through five regional off-track-betting agencies that offer live streaming of races within and outside of the state, and telephone and internet betting accounts. (3) The New York State lottery was the largest such system in North America; (4) the state also offered New Yorkers access to multi-state mega-jackpot games. (5) Winners were picked for a Quick Draw game every four minutes. (6) The sale of instant scratch-off tickets offered the opportunity to gamble twenty-four hours a day, seven days a week, three hundred and sixty-five days a year. One national web-based directory indicated twenty-one different active casinos or racinos in New York and one gambling cruise operator based in the state. (7) Access to other gambling opportunities was available to New Yorkers electronically. And, of course, illegal gambling persisted. Bennett Liebman, a leading authority in the field, has written that "[s]wiss cheese has fewer holes than the state's ban on gambling." (8)

   All this opportunity to gamble, and yet, removing or amending the constitutional gambling limitation still emerged as an issue. During the summer of 2011, Governor Andrew Cuomo said that "his administration was 'actively"' considering an initiative to permit what the New York Times described as "full-scale commercial gambling." (9) Meanwhile, Assembly Speaker Sheldon Silver endorsed the idea: '"We have it all over, in New Jersey, Connecticut, Pennsylvania, in Native American casinos in New York,' Silver said in September 2011, 'so we might as well take part in the revenues that come from casino gaming."' (10) Meanwhile, Senate Majority Leader Dean Skelos, through a spokesman, indicated support for "let[ting] the people of New York decide." (11) Both Silver and Skelos, however, also favored retaining some limits on casino location, Silver to avoid exploitation of the poor, Skelos to assure consideration of "community impact and support." (12)

   As the New York State government once again begins to seriously consider altering or removing its gambling prohibition by constitutional amendment--an action that must be taken by the legislature alone, without formal gubernatorial involvement--the real puzzle is not what the riddle's answer is, but why it is what it is. The answers to this why question--derived from taking a centuries-long view of state constitutional history and a constantly shifting political landscape--offers insights into the source of state constitutional limits on the state legislature and the capacity of these to be effectively limiting. These answers also reveal the manner in which intended limits are altered: by amendment, through statutory action, court interpretation, and preemptive national government action. And in the end, understanding these answers may help New York State take a small step away from a puzzling constitutional wonderland, and closer to a world in which law and practice reach a healthful and legitimate convergence.

2. WHEN IT COMES TO THE LEGISLATURE WHAT IS A STATE CONSTITUTION SUPPOSED TO DO ANYWAY?

   Classically, reformers have been critical of state constitutions for being insufficiently limited to the fundamental structures and processes of government, that is, for not being truly constitutional. (13) The length of state constitutions has been widely used as an indicator of their lack of appropriate focus. (14) The average state constitution was 26,271 words long in 2009, about three times the length of the U.S. Constitution (the New York Constitution contained 51,700 words in that year). (15)

   Approaching the matter differently near the close of the twentieth century, political scientist Christopher Hammons considered the number of provisions in each of the state constitutions in force and the character of those provisions. "On average," he wrote, "state constitutions contain 828 provisions, and 324 are devoted to ... statutory-type issues. This means that 39% of the typical state constitution is devoted to matters that most scholars consider extraneous at best." (16) New York's 1894 Constitution, the one most recently adopted, Hammons found, had about one-third more provisions than the mean (1,093), but was at the mean in its proportion to statutory material. (17)

   Articulately advancing the traditional reform sentiment, an essay by federal judge J. Harvie Wilkinson III, written in 2006 in reaction to the constitutionalization of same-sex marriage in an increased number of jurisdictions, bemoaned "the evolution of many state constitutions into baroque collections of essentially statutory material." (18) Judge Wilkinson continued, "We should [not] surrender our commitment to constitutions as articulations of fundamental rather than positive law. When states burden their constitutions with essentially statutory provisions, they risk trivializing them." (19)

   An alternative view argues in defense of the greater length of state constitutions; they are more detailed because they perform a fundamentally different role than does the national constitution in the federal system. (20) Congress, created de novo at a convention with state representation and ratified in the states, may do only what it is affirmatively given by the U.S. Constitution to do. In contrast state legislatures, antecedent inheritors of sovereign authority as a result of successful revolution, may do all but what they are prohibited from doing by the state constitutions. (21) Columbia Law Professor Richard Briffault recently quoted the classic summary of this point from Thomas Cooley's benchmark nineteenth century book, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union:

   We look in the Constitution of the United States for grants of legislative power, but in the constitution of the State to ascertain if any limitations have been imposed upon the complete power with which the legislative department of the State was vested in its creation.... [T]he State legislature has jurisdiction of all subjects on which its legislation is not prohibited. (22) Documents that grant power may be brief. Documents that place limits on power that is otherwise plenary must anticipate all that requires limiting; they are necessarily longer and more detailed. So, for example, the gambling prohibitions in the New York State Constitution may be too "statutory" and unnecessarily contributory to its length by one standard. But by another they may be the only means of limiting plenary legislative power in this area of policy, if limitation is indeed judged desirable.

3. THE LEGISLATURE IS RARELY DISPOSED TO LIMIT ITS OWN POWER BY STATE CONSTITUTIONAL PROVISION

   Provisions enter into state constitutions by two paths; through the legislature and/or without (or around) the legislature. (23) Almost always, popular ratification at referendum is required. (24)

   It is common in American state constitutions for state legislatures to be given a means for initiating constitutional amendment or revision. (25) In New York, the legislature may propose a constitutional amendment by passing it in two successive sessions, with a general election intervening. (26) Amendments are adopted if they receive approval of a majority of those voting on the question at a statewide election thereafter. (27)

   Previous analyses established that though these are often introduced by individual members (e.g., term limitation or session length), the legislature in New York does not propose for a vote amendments that limit itself. (28) An analysis performed for this essay indicated that of eleven amendments placed on the ballot by the legislature in the fifteen years between 1995 and 2010, none were limiting of the legislature. (29) In fact only two were of statewide institutional reach and consequence. (30) The first, passed in 2001, made the language of the constitution itself gender neutral. (31) The second, a proposal to re-empower the legislature in budgeting after an adverse decision for it in the Court of Appeals, failed at the polls. (32)

   The legislature may also propose the calling of a constitutional convention, by placing on the ballot this question, prescribed in the constitution: "'Shall there be a convention to revise the constitution or amend the same?'" (33) If the voters answer "yes," delegates are elected and a convention meets at the capitol in Albany, at a time and in accord with a process specified in the constitution. (34) But recent legislatures have not been inclined to do this. The 1801, 1821, and, with reluctance, 1846 conventions were called at legislative initiative. (35) In 1914 the legislature placed the convention question on the ballot at a special election, in anticipation of it otherwise being put to a vote in 1916, a presidential year. (36) Since then, the legislature successfully proposed the calling of a convention only once, in 1967. (37)

   As noted, the state constitution is an actual or potential locus of limitations on the legislature. Conventions have a single purpose: to revise or amend the constitution. (38) Unlike legislatures, they are not continuing institutions...