"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.
II. 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. …