10th Amendment Overview

Gaming law will come under more and more scrutiny as States move into the field of online lotteries.  Basically, there could be a problem between the States and the Federal government over jurisdictions relating to online gaming.

The Ammendment states:

"The 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. "

Now the last time I checked, IGaming wasn't anywhere in the Constitution of the United States. 

Since there is no clear definition on IGaming, States have the right to enact their own laws to define and regulate IGaming without Federal interference.  And there will be a fight.

In Canada, the Federal Government ceded  the right to run gaming operations to the Provinces a few decades ago.  Now these Provincial Governments are able to take in vast amounts of taxation revenues without any interference from Ottawa.

Clearly, this is not the ideal way of sharing the wealth.

And in the USA, given basis in the 10th Amendment, States won't have to share any revenues with Washington either.

Combined with the Commerce Clause, there are going to be some pretty interesting debates in our Capitol Buildings.

The Legalese

Ammendment X

The 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.

Scope and Purpose

''The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified.'' 1 ''The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.'' 2 That this provision was not conceived to be a yardstick for measuring the powers granted to the Federal Government or reserved to the States was firmly settled by the refusal of both Houses of Congress to insert the word ''expressly'' before the word ''delegated,'' 3 and was confirmed by Madison's remarks in the course of the debate which took place while the proposed amendment was pending concerning Hamilton's plan to establish a national bank. ''Interference with the power of the States was no constitutional criterion of the power of Congress. If the power was not given, Congress could not exercise it; if given, they might exercise it, although it should interfere with the laws, or even the Constitutions of the States.'' 4 Nevertheless, for approximately a century, from the death of Marshall until 1937, the Tenth Amendment was frequently invoked to curtail powers expressly granted to Congress, notably the powers to regulate commerce, to enforce the Fourteenth Amendment, and to lay and collect taxes.

In McCulloch v. Maryland, 5 Marshall rejected the proffer of a Tenth Amendment objection and offered instead an expansive interpretation of the necessary and proper clause 6 to counter the argument. The counsel for the State of Maryland cited fears of opponents of ratification of the Constitution about the possible swallowing up of states' rights and referred to the Tenth Amendment to allay these apprehensions, all in support of his claim that the power to create corporations was reserved by that Amendment to the States. 7 Stressing the fact that the Amendment, unlike the cognate section of the Articles of Confederation, omitted the word ''expressly'' as a qualification of granted powers, Marshall declared that its effect was to leave the question ''whether the particular power which may become the subject of contest has been delegated to the one government, or prohibited to the other, to depend upon a fair construction of the whole instrument.''

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