Shuffle Up and Deal

This week I read an interesting discussion on The Washington Post website with World Poker Tour founder Steve Lipscomb:

Poker was declared a game of skill in California almost a hundred years ago, yet it is still lumped in with all gaming in many states. There is a great piece of dicta in a Supreme Court case involving a poker player in which the Government attorney suggested poker was a game of luck -- one of the justices said, he would be happy to have the attorney step up with his own money to prove it against the defendant.

Lipscomb raises an interesting issue - most state gambling codes apply to games of chance. For example, the Code of Virginia defines "illegal gambling" as "the making of any bet or wager of money or other thing of value, made in exchange for a chance to win a prize, stake or other consideration or thing of value, dependent upon the result of any game, contest or any other event the outcome of which is uncertain or a matter of chance."

There is an important distinction between a game of chance and a game of skill. In 1911, California Attorney General Harold Siegel Webb issued an opinion declaring draw poker to be a game of skill, thus it was not subject to the California gambling laws. In 1925, a California court held that the game of bridge is also a game of skill, not a game of chance in the case In re Allen, 59 Cal.2d 5, 377 P.2d 280. The court outlined this distinction between luck and skill:

The term "game of chance" has an accepted meaning established by numerous adjudications. It is the character of the game rather than a particular player's skill or lack of it that determines whether the game is one of chance or skill. The test is not whether the game contains an element of chance or an element of skill but which of them is the dominating factor in determining the result of the game.

Or, as Matt Damon put it in Rounders: "Why do you think the same five guys make it to the final table of the World Series of Poker every single year? What are they, the five luckiest guys in Vegas? It's a skill game." (This film was made in 1998, when the World Series was still pretty small. Since then many new faces have made the final table, but the underlying point is still valid.)

But considering the explosion of poker on the Internet and on television in the past couple of years, I asurpriseded there have not been lawsuits in states like Virginia to establish poker as a game of skill. But alas, I guess I will still have to drive to Atlantic City to get my fill of poker. Maybe someday other states will come to the same conclusion as California and deal a better hand to poker enthusiasts.

Of Mice and Men

I love reading about the Supreme Court, legal theory, or any other topic that would make an average reader bored out of his mind. I received a fascinating book about the inner working of the Court for Christmas last year, which I want to bring to your attention. It is Marshall, the Courthouse Mouse by Peter and Cheryl Barnes.

Hear ye, hear ye! All rise and draw near! America's mice, with good will and good cheer, Are pleased to announce and proud to report; The opening term of the mouse Supreme Court. The Court now in session is nine special mice, They're all very smart and they're all very nice! They are called "justices," and their great contribution; Is to guard and protect the Mouse Constitution.

It does this whenever it choose to hear; A question of a law that's unclear; For disputes about laws aren't all that unusual - In fact, some laws can be unconstitutional. Here's an example the Mouse Congress created: It once passed a law that directed and stated; That mice could not eat the same cheese every day- It was a strict law all mice had to obey!

But some of the mice had thought all along, "This law is confusing and odd - and just wrong! Each mouse family should always be able; To put any cheese that it wants on the table!"

In the cheese case, Marshall stood from the table. "Fellow justices," he said, "I am sure you are able; to see the constitution grants a most basic right; That allows any mouse with a good appetite; To choose the cheese he or she wants for a meal - Swiss, Blue or Cheddar - whatever they feel!

This means that the cheese law, I'm sure you can see; Must be struck down now - constitutionally." "Here, here," said the others, "We consent and agree!" And they voted with Marshall, unani-mouse-ly!

The justices also hand down their decision - announced from their bench with care and precision, Read aloud by a justice, a great declaration, To all who are gathered and the rest of the nation.

Excerpts from Freedom of Cheese Coalition v. Daily Cheese Group:

MR. JUSTICE BLACKMOUSE delivered the opinion of the Court.

It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage…We are told that, at the time of the Persian Empire, deviations from the cheese diet laws were severely punished. We are also told, however, that cheese choice was practiced in Greek times as well as in the Roman Era, and that "it was resorted to without scruple." Ancient religion did not bar cheese choice.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a mouse’s decision to eat a diet of his or her own choosing.

On the basis of elements such as these, appellant and some amici argue that the mouse's right is absolute and that she is entitled to eat cheese at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. As noted above, a State may properly assert important interests in safeguarding health and in maintaining medical standards.

MR. JUSTICE OLIVER WENDELL MOUSE, dissenting

This case is decided upon a culinary theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the cheese-eating liberty. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Max McCalman’s A Connoisseur’s Guide to the World’s Best Cheese.

And now for something completely different!

I know it is hard to believe that I care about something other con law, but I wanted to mention the biggest news story of the day. Pitchers and catchers report to Spring Training today!!! This means Opening Day is only 44 days away.

For those of you who don't know, I am a huge Washington Nationals fan. I went to 20 or so games last year, and my family has a half season's worth of tickets this year. I am also planning a trip to Florida during Spring Training, where I am going to see the Nats take on the Panama National Team in a tune up for the World Baseball Classic as well as the Nats' hated rivals, the Orioles.

I urge my fellow baseball fans to check out Ball-Wonk.com, a blog about the Nationals which combines a creative sense of humor with solid baseball analysis. Also for a good laugh, check out Oyez Baseball, which is administered by the Oyez Project at Northwestern University.

Quote of the week

"How did I miss two chances to get on the Court?"

No, that's not the quote. Last week before the Senate Judiciary Committee, Attorney General Alberto "How do you say Souter in Spanish?" Gonzales made a shocking revelation about the history of executive power in America: "President Washington, President Lincoln, President Wilson, President Roosevelt have all authorized electronic surveillance on a far broader scale."

In a Supreme Dicta exclusive, here is an excerpt from President George Washington's private diary concerning the domestic electronic surveillance he authorized:

Monday, August 30, 1790. Today, I received a most disturbing message from the Northwest Territory concerning a planned Indian insurrection. I immediately called upon my National Security Adviser and noted voluptuary, Benjamin Franklin. Upon Dr. Franklin's arrival, I inquired as to the progress on the "Philadelphia Project." The details of the project are strictly confidential, thus I may only say the experiment involves a Predator Drone attached to a kite. Much to my grave disappointment, Dr. Franklin informed me the project has not yet reached a satisfactory conclusion. We debated whether we could obtain information about the Indians by attaching a long string to two tin cans, but we decided against it. Finally, we decided to direct covert operatives into Indian territory to intercept smoke signals.

I summoned members of Congress to my residence to brief them on the details of the surveillance plan. The Federalists members in attendance expressed strong approval and urged me to commence an invasion into Indian Territory. I responded that we had not yet collected enough information to justify an invasion, but Treasury Secretary Alexander Hamilton insisted the case for war was "a slam dunk." Everyone was quite puzzled by that remark, which Hamilton explained was a reference to a game played by freedmen in the West Indies during his childhood. I asked Hamilton if he were an accomplished player of the game, to which Hamilton replied, "White men can't jump... because of their pantaloons."

The Jeffersonian members of Congress, on the other hand, just sat there cowering in fear. James Madison asked, "May I make a polite supplication?" Hamilton responded, "Any idea you may have to offer will result in you being tried on charges of treason!" At that point Aaron Burr became ill and excused himself from the meeting. Madison fell silent and resigned himself
to losing at least two more elections.

Of Rights and Commitments

When I was learning about the enumerated powers of the federal government in my high school government class, I often wondered why Congress couldn't find a basis for a law based upon the preamble of the Constitution. I quickly discovered that there is a difference between the legally enforceable text of the Constitution and the mere rhetoric of the preamble. In a sense, the preamble is akin to the Declaration of Independence; they both are poetic expressions of American values. But the Declaration is a social contract, rather than a legal contract. It is, as Cass Sunstein puts it, a constitutive commitment. In his recent work, The Second Bill of Rights, Sunstein describes the New Deal legislation as the most important set of constitutive commitments of the 20th century.

Sunstein points out that although the post-New Deal Supreme Court has a fundamentally different understanding of the Constitution, the text itself has not changed with regards to economic rights. That was intentional: President Franklin Delano Roosevelt wanted to achieve constitutional change without formal amendment. Sunstein compares the U.S. Constitution with other constitutions around the globe, many of which do contain economic rights provisions. For example, the bill of rights in the constitution of South Africa states: "Everyone has the right to have access to ­health care services, sufficient food and water, and social security... The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights."

However, we do not have to look beyond the shores of the United States in order to find a constitution that encompasses economic rights. Forty-nine state constitutions include a right to education (sorry Iowa). But perhaps the most interesting approach to economic rights among the state constitutions is New York. Article XVII, section 1 of the New York constitution declares: "The aid, care and support of the needy are public concerns and shall be provided by the state and by such of its subdivisions, and in such manner and by such means, as the legislature may from time to time determine." This provision was adopted in 1938 for two purposes, according to Sunstein: "The first was to establish the legitimacy of social welfare programs and thus insulate them from constitutional attack. The second, more important for my purposes, was to establish that the state had a positive duty to assist those in need."

State courts in New York on a number of occasions have interpreted this provision as having substantive import. In 1974, the New York Court of Appeals (all good Law and Order fans know that the Supreme Court of New York is the trial-level court) struck down a law which denied welfare benefits to those under 21 who did not live with a parent. The court in Tucker v. Toia wrote, "Although our Constitution provides the Legislature with discretion in determining the means by which this objective is to be effectuated, in determining the amount of aid, and in classifying recipients and defining the term 'needy,' it unequivocally prevents the Legislature from simply refusing to aid those whom it has classified as needy. "

The New York Constitution raises a number of interesting questions. Why did New York (FDR's home state) take a different approach from other states as well as the federal government? Did the framers of that provision expect it to be judicially enforceable? Is the provision a more secure guarantee of public benefits than the democratic process (i.e. Social Security as the third rail of American politics)? I believe these questions deserve to be answered and the story of the 1938 New York constitutional convention is one that deserves to be chronicled. I hope someday soon I will have enough time to tackle these issues.