Academic journal article Albany Law Review

I'd Wager It's Time for a Change: Reconsidering New York State's Constitutional Prohibition against Gambling

Academic journal article Albany Law Review

I'd Wager It's Time for a Change: Reconsidering New York State's Constitutional Prohibition against Gambling

Article excerpt


A. Constitutional Prohibitions Against Gambling Generally

The Bill of Rights of the New York State Constitution prohibits gambling except in limited circumstances. (1) Article I, section 9, states:

[N]o lottery or the sale of lottery tickets, pool-selling, book-making,
or any other kind of gambling, except lotteries operated by the state
and the sale of lottery tickets in connection therewith as may be
authorized and prescribed by the legislature, the net proceeds of which
shall be applied exclusively to or in aid or support of education in
this state as the legislature may prescribe, except pari-mutuel betting
on horse races as may be prescribed by the legislature and from which
the state shall derive a reasonable revenue for the support of
government, and except casino gambling at no more than seven facilities
as authorized and prescribed by the legislature shall hereafter be
authorized or allowed within this state; and the legislature shall pass
appropriate laws to prevent offenses against any of the provisions of
this section. (2)

This section was added in 1894 and was subsequently amended multiple times--most recently in 2013. (3) The Constitution does not define the term "gambling," however. (4) The New York State Penal Law describes criminal gambling as follows:

A person engages in gambling when he stakes or risks something of value
upon the outcome of a contest of chance or a future contingent event
not under his control or influence, upon an agreement or understanding
that he will receive something of value in the event of a certain
outcome. (5)

In addition, the New York General Obligations Law voids losses or authorizes the recovery of losses due to unlawful gambling activities. (6) For example, section 5-401 states: "All wagers, bets or stakes, made to depend upon any race, or upon any gaming by lot or chance, or upon any lot, chance, casualty, or unknown or contingent event whatever, shall be unlawful." (7) However, there is no body of law or regulation that specifically defines gambling.

The Constitution authorizes the legislature to pass appropriate laws to prevent offenses against prohibited types of gambling. (8) The New York State Penal Law and General Obligations Law provisions above are examples of the legislature exercising its constitutional authority to prevent unlawful gambling activities. The legislature has also passed gambling laws that clarify what is not prohibited gambling. (9) State courts have repeatedly held that the legislature has latitude in determining what activities do and do not constitute prohibited gaming within the meaning of the Constitution. (10)

History suggests that the general prohibition against gambling is rooted in morality. The New York State Court of Appeals has held that Article I, section 9, was "adopted with a view toward protecting the family man of meager resources from his own imprudence at the gaming tables." (11) While the state legislature can enact laws in furtherance of the constitutional prohibition against gambling, it may not expand gambling without a full amendment to New York's Constitution. (12)

B. Constitutional Amendments

This article argues that changes to the Article I, section 9, prohibitions on gambling are necessary in light of today's gambling environment. Amendments to New York's Constitution are achieved in two different ways. (13) The first method is via amendment by the legislature, subject to voter approval. (14) The second method is through a convention, called either by proposal of the legislature or through an automatic referendum every twenty years, subject to voter approval. (15) The main difference between constitutional revision through legislative amendment and amendment via convention is that a constitutional convention "allows for much wider modifications of the Constitution." (16) Conventions have generally been unpopular, though recent Albany scandals involving state legislators have prompted renewed interest in political reform through a constitutional convention. …

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