DEAR EDITOR:

Perhaps the most powerful and instructive components of the Constitution is the one mostly ignored by the courts — until recently.

The 10th Amendment is short and states:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to its states, are reserved to the states respectively, or to the people” (emphasis supplied).

In 2005 the U.S. Supreme Court in Kelo vs City of New London decided that a long-time home owner’s property could be taken by the city of New London, Connecticut to transfer to a private developer for commercial purposes and increase the tax base with economic development.

Regrettably, the high court permitted the taking of Mrs. Kelo’s home but also decided to permit individual States to restrict this practice to prevent a “Kelo” type taking. Thus, the court deferred to the clear mandates of the 10th Amendment reserving the power to the individual States.

Ohio took advantage of this opportunity and in 2006 the Ohio Supreme Court rejected a similar Kelo “taking.” The Ohio General Assembly in a Senate bill added additional private property owner safeguards against governmental taking it for a public use prohibited by the 5th Amendment to the Constitution.

The 5th Amendment limits the government to taking private property for public use. Taking Mrs. Kelo’s home for other reasons was wrong but the U.S. Supreme Court permitted it nevertheless.

Again, back to the 10th Amendment. The Supreme Court took up a sports betting case that in 2018 struck down the federal Professional and Amateur Sports Protection Act in favor of allowing states to permit state-sponsored sports betting.

The court stated “Conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States.”

The 10th Amendment is best utilized in what is known as the anti-commandeering doctrine that prevents the federal government from forcing state and local governments to enforce federal laws. This was the basis for the Supreme Court to rule in favor of permitting sports betting.

In its wake, most States now permit legalized sports betting. Like other vices, little usage frequently leads to user abuse.

Just as alcohol production and distribution is state-regulated due to the repeal of probation in the 1933 25th Constitutional Amendment, the Supreme Court leaves no other alternative but to prohibit sports betting by Constitutional Amendment. Constitutionally, the court properly construes the 10th amendment, but the predictable adverse consequences to society sometimes follow.

ATTY. C. RAFOTH

Boardman