Pushkin.
I'm Michael Lewis, and this is against the rules. All this season, we're looking at the rise of sports betting, America's newest form of legalized gambling. Today it seems like it just suddenly happened, but it was actually a long road and I had to do a lot of background interviews to fully understand it. Today, I want to share
with you one of those conversations because it's fascinating. In our previous episode, we heard briefly from a legal historian and professor at the University of Chicago named Alison Lercroix. Alison and I actually talked a long time about the wider context for why in twenty eighteen, the Supreme Court decided to overturn a federal law called the Professional and Amateur Sports Protection Act. That context goes back to the founding of the country actually and tension between state and
federal jurisdictions. The State of New Jersey brought up all of that when it argued a case now called Murphy versus Nzuba before the Supreme Court. Do you know the case at all?
I do. I teach it in constitutional law. Yeah, oh, well, here we go.
Are there any cases from way back when of the federal government telling states they can't change their laws or they can't do something in their laws, rather than the federal government directly legislating something telling the states how they have to legislate it.
Well, I mean, then this gets to one of the I think trickiest points in the Murphy opinion, especially as Justice Alito writes it. And we actually usually spend a fair amount of time talking about this in class because I think just this Alito says, Look, this is a
clear case of what the Court calls commandeering. And even though it's Congress telling the states they can't do something that is, in a theoretical sense, the same as Congress telling the state legislatures they have to do something that's commandeering, can't do that even though it's a negative, and so
on and so forth. But I think he spends an enormous amount of time in the opinion dealing with the objection to his framing, which is, what about all the instances in which Congress passes a law, and we know, because of how the supremacy Clause of the Constitution operates in a doctrinal sense what lawyers call preemption, federal law preempts state law to the extent the two conflict, and Justice Alito says, well, that's true, but that's only true
if Congress is passing a law that isn't totally and only directed at state legislatures. So yes, preemption, but you've got to have some like normal regular individuals or companies or whatever not have it be a direct order to state legislatures. But if you go back to the nineteenth century, they're a lot looser about how they understand the supremacy clause operating. And there's another case in Virginia in eighteen twenty, which is another Supreme Court justice riding circuit.
What does that mean? Riding circuit?
It means they were sitting and acting as a judge, but they were not in the Supreme Court chamber. They weren't in DC. They always seem to kind of go out on a limb a little bit more when they were riding circuit. It's like they weren't sitting there with their brethren, and the cases they were hearing were often
trial court cases. It would be like if Justice Soda my or spent some portion of the year sitting in the New York Federal Court, like in the Second Circuit or the district court hearing essentially a lot of trial court cases, and people would be like, oh, that's Justice Soda my or but she's riding circuit and New York part of her circuit.
That's a weird thing to have done. So you could conceivably have rendered some judgment that you're then going to see again at the Supreme Court level.
Yes, and that happened a lot. And so you have situations. In this eighteen twenty case in Virginia, the circuit riding Justice Marshall was his kind of his turf, and so he's sitting there as a trial court judge, and it's a case about a ship that comes into Norfolk, Virginia, and it has these crew members, some of whom, according to the record, are quote persons of color. Virginia law says such persons cannot be imported or allowed to migrate into the state. Federal law says we support state law
whatever it is. And this I think is another complication for the Murphy line of argument, because Chief Justice Marshall basically says, we have been various Acts of Congress, including this one that says the federal government will support states in whatever they're doing. Visa VI persons of color, and he basically reads it to say that limits in some
cases or some instances, what states can do. Now he pulls back, He doesn't go all the way to saying, Virginia, you can't say that a person of color cannot migrate into Virginia because of federal law. And he kind of dodges it on what he terms what we would call statutory construction. He basically says, it's not clear from the
evidence that the law actually applies to these people. So the end, and then he writes letters to his fellow justices basically saying, I tried to avoid the deep constitutional question.
But I think what he was on the verge of saying, and what he and some of the other federal judges seem to be comfortable with, was this notion that acts of Congress, so like papsa in Murphy, whould remove certain options from the state legislature's toolkit, and that that wasn't itself a constitutional problem, It wasn't commandeering to say Congress was doing that.
Talk to me, like I am a curious seventh grader about how this argument even starts. What the federal government gets to do and what the states get to do.
One could go even further back and talk about the British Empire and kind of separations between layers of government during the colonial period. I mean, that was my first book. It was trying to figure out did the British Empire give a blueprint for how the founders in the seventeen
eighties thought about distributing power. And I think one of the things that was going on when we think about the Constitution and people drafting it in seventeen eighty seven was they weren't new to the idea that you would have a bunch of different levels of government that were competing, because that had been the imperial experience. So I think often we start like seventeen eighty seven, blank slate, but
that wasn't how they experienced it. So they're kind of thinking, Okay, we don't have an empire, we don't have Britain and the Crown. We're setting up this new national government. They called it the General Government. We would call it the federal government. But then they're kind of trying to figure out, how do we give it some power but not all the power because we don't want to be France. They're constantly kind of invoking France as a structure.
This is funny and what's wrong with France?
Well, okay, so first that's pre revolutionary France. So they're you know, they're like, there's a king, the king has absolute power. That's not good. But also the structure of government was like everything runs from the center. So even though you have you know, tax collectors out there out in the provinces in France, you know, hitting people up for money, they didn't They worked for the center. It wasn't like there was some local or what we would
think of as level government. There was just you know, a bunch of people who were appointed by the king. And the American founders were thinking, well, A, we don't want that as a sort of theoretical matter. B we don't have that because we have these colonial governments that we're now going to call states. And like Massachusetts thinks it has a certain set of powers, Virginia thinks it
has a certain set of powers. And so part of I think part of the story in the early nineteenth century is understanding several decades earlier that the Founders were like consumed by this question of how do you have multiple levels of government? And then how do we sort of set ground rules for how they'll interact and how do we distribute the power between the center and the peripheral.
Powers, Because we don't want to be France, because.
We don't want to be France, although maybe we do if you ask Jefferson and yeah.
But if we don't want to be friends, but that doesn't mean we want to be the United Kingdom.
Correct, We definitely don't want to be either of them, So we want to be in their words, something entirely knew, although again they knew that they couldn't create something from a blank slate. So so what they ended up doing in the Constitution was saying, Okay, we're going to write this down. That's pretty novel. Lots of countries, Britain especially
have constitutions, but they're not written down. We're going to write it down, and when we write it down, we're going to talk about the central The general government has certain powers and everything that we don't say in the constitution, or that the Constitution doesn't somehow give to the general government is a power that stays with the states or with the people, and we often, i think forget the or with the people part. Today it's like it's the
states versus the federal government. Well, the people are in there too.
What were the most contentious bits of this? Who is fighting about what on this subject?
I mean, part of me wants to say everything, but the specific bones of contention. The phrase they keep using, and they keep using into the early nineteenth century is the umpire? Who's the umpire? And one thing I love about this is we think, oh, yeah, umpire. There wasn't baseball yet at this point, so that's very funny.
This is riveting. Yeah, So where do they get this word?
Well, they get the word because to them it means something like impartial judge, kind of person overseeing general rules, a sort of judge like figure, but not necessarily in a court. So they talk about it as okay, we're going to have the system, it's going to be complicated, it's going to have lots of levels of government. We're okay with that. That's necessary, and theoretically we've worked out why it's okay. But who's the umpire? I mean, the way I describe it in class in constitutional law is
who decides? But then also who decides who decides? Because it's who's going to settle the frictions and the controversies that come up. So one of the things, and this is actually Aimes Madison's proposal at the Constitutional Convention. Madison says, I know what we'll do. It's going to be great. We'll give the Senate the power to veto state laws. And a few other states delegations support him at this
huh yeah. Now it's staggering to us because it's like, you can't do that for all sorts of reasons.
No, it's like running the wrong way around the bases or something.
Exactly.
It's like it's a rule that you can't imagine someone thinking about adopting.
Right, And it's Madison, of all people. So it's not just some you know, lesser known member of the Philadelphia Convention sitting off in a corner, the author of the Federalist papers exactly. And Madison calls this the federal negative or the veto, and he's like, listen, this is the umpire problem. The states are going to pass a whole bunch of different laws. They'll be kind of self motivated
or parochial. We know that they'll do that. So the problem will be to harmonize them, to keep them from doing things that are that are focused on themselves and selfish as opposed to being mindful of the needs of the whole union, the sort of general welfare of everybody.
He saw Nevada coming a mile away.
That's exactly right. And so he kind of goes day after day in the convention telling people like, this is great, and he even at one point invokes the British Empire and he's like, you know, yeah, problems and implementation, but it was a good idea, and other people support him. There are other delegates that go along with him for a while on this. Obviously, in the end it doesn't
end up passing. What they end up putting in instead is what we know, which is a system with an umpire in the form of the Supreme Court of the United States. They don't really specify what it's going to look like, and things like enumeration and the enumerated powers, so the federal government only has certain powers, the states
have the rest. And also something in the Constitution that we call the Supremacy Clause Article six, which basically says federal law is supreme even if state law appears to contradict it. What's really interesting about all this, though, to me is that Madison, to the end of his life and he lived to eighteen thirty six, was still defending the negative and still saying this would have been better.
It's kind of great that even James Madison doesn't change his mind exactly, and nobody ever changes their minds, they just die. So but if you're you saying that if Madison's argument had won, we wouldn't have a Supreme Court, we.
Would have a Supreme Court, I think because that is in the Constitution. And I think he did not view that as he didn't view it as one or the other, the federal negative or the Supreme Court. But I see, but he thought that a lot of the time, and this is how he talked about the negative. You would just say, okay, state legislature, like Illinois legislature, you've passed
a law. Before the law becomes fine, the Senate of the United States will essentially have to ratify it, so it's part of the legislative process, and then later down the road maybe someone will challenge it in court for some other reason. But that's a kind of after the
fact corrective. And actually there's this interesting exchange of letters that Madison had with Thomas Jefferson, who's off in Paris, and Madison's kind of reporting to him on his plans, very proud about the Federal Negative, and Jefferson just writes back and says, prima facia, I do not like it, which just feels like that must have been a tough letter to get. And Jefferson's like it's too big, like it will cover ninety nine out of one hundred cases
that it doesn't need to. We can just wait. If people are really aggrieved and the states have overstepped down the road, some person will bring a lawsuit and that's how we'll deal with it. And that's what happened, and that's what happened.
When we return, Alison and I get into a what if scenario for James Madison's alternate vision for American government. I'm back with the University of Chicago law professor and legal historian Alison Lacroix. She's the author of a book called The Innerbellum Constitution. I found it fascinating to think about the America that James Madison wanted to construct with the Constitution, a nation where Congress would have veto power
over state laws. He called it the Federal Negative. What would the world look like if Madison had his way.
That is a very interesting question. So one thought would be we would not have as many great constitutional questions in the Supreme Court. We would probably have had a lot of them fought out in the Senate, and that would have gone in lots of different ways. So, for instance, South Carolina in eighteen nineteen passes this law that they call the police Bill. It has various other names, and that state law basically says any sailor or seaman who's
a black person. They use the color distinctions of the time, but we could think of it as an African American sailor from anywhere in the world who comes into port in South Carolina has to be jailed while their ship is in port. And it leads to this whole federal court case, a literal federal court case. And so it's
an interesting question to think. Okay, imagine Madison's negative. South Carolina passes this police bill, Does it die in the Senate or does South Carolina get Georgia some of the other sort of deep southern states to go along with it. Does some of the northern states feel like it's pro trade. So I think we'd be having those constitutional fights in the Senate on top of the other constitutional fights that were going on in the Senate.
What are in the innerbellum period? Are there any states rights cases that come before the Supreme Court that have any kind of relevance for the present moment and that might become relevant all of a sudden before the Supreme Court.
Absolutely, I mean, one of the most interesting things about the interbellum period is you start looking for states rights type arguments, and they're everywhere. So there are lots of states rights arguments, but they're basically like proto or very explicitly pro slavery. They're like South Carolina nullifying federal law or seceding. But in fact, we see them coming up in all sorts of different guises and from different places.
So one of my favorite examples is one that I talk about in the last chapter of the book involving Wisconsin. So in eighteen fifty, Congress passes this Fugitive Slave Act that basically says slavery is the national norm. Essentially, so even if a state says, like Wisconsin, slavery is not permitted Wisconsin as a free state, if someone who is alleged to be a fugitive slave ends up in Wisconsin.
There enslaver can come find them and bring the full force of the federal government to bear and capturing their fugitive. And so there's a case that comes up in eighteen fifty four with an individual, one person, a man named Joshua Glover, and he's a free black man. He is a fugitive. He is living in Racine, Wisconsin, and he's captured by federal authorities. He's dragged to Milwaukee jailed, and there's this dramatic jail break on behalf of helping Glover
become free. And then there's this year's long political and legal conflict because Wisconsin claims states' rights. They basically say, Wisconsin is a sovereign state. How dare these other states or even the federal government tell us what sorts of
protections we can give to persons within our borders. And if you take away the name Wisconsin and you look at some of the documents or the arguments, and I've done this, you show it to students or other folks who are coming to the materials, they're shocked that it's Wisconsin because they think, well, no, the state's rights arguments, that's what the Southerners are making, that's what the sort
of pro slavery people are making. But the fact is that some of the northern and Midwestern states make the argument too, because they view it as a state invading them the preferences of other states like South Carolina, North Carolina, Georgia invading the sovereign territory of Wisconsin, and they regard that as an offense against their state's sovereignty.
What happens with this case, well.
It ends up going to the Supreme Court. And so this is now eighteen fifty nine on what we know.
Yeah, and where is his name, Joshua Glover?
Joshua Glover?
Where is Joshua Glover?
For these five he has escaped to Canada, so he's no longer even he's no longer even interested in it. The case is now a journalist from Milwaukee named Sherman Booth who was involved in stirring up the crowd and breaking Clever out of the jail in Milwaukee at a federal marshal. The federal marshal, who again we're very primed by twentieth century and recent history to think the federal government on this they're going to be like the nineteen sixties,
they're going to be like Eisenhower and Little Rock. They're going to be the ones saying, you know, emancipation and equal rights. No, the federal Marshal is trying to bring suit and penalties against the journalists for helping the fugitive.
And so in that moment, the federal government, had they got their myths on Joshua Glover, would have returned him to his owner.
Yes, yes, who was his owner?
Who was his owner?
It was a man by the name of Benamey Garland from Missouri.
Wrong side of history, that dude. Yeah, But all right, So and where was he? Where was he?
He was outside Saint Louis, who was in Missouri, had a plantation, and he was actually there. I mean, he came to Wisconsin and sort of got his law abiding group of people, you know, who to us are vigilante kidnappers, but under the terms of the law at the time, they were complying with federal law. And so it goes up to the Supreme Court of the United States in eighteen fifty nine and the court issues a unanimous decision and they say, Wisconsin, you are not allowed to nullify
federal law, but you know that's eighteen fifty nine. That's what the Court says. The Wisconsin legislature maintains for three more years that it has the power to nullify the Federal Fugitive Slave Law. The Legislature of Wisconsin only reverses that view in I think six once the Civil War has started, and then they're like, Okay, yeah, we're not doing the state's rights thing anymore. We'll be right back.
Look, I'm aware my show isn't the History Channel, and we've been covering a lot of legal history with my guest Alison Lercroix. But all of this history gets us to the constitutional back door that's allowed states to legalize sports betting. It goes back to arguments about federalism, a concept in the Constitution about how power should be shared between the national government and the states. The Supreme Court's built to be the umpire of such things, but the
umpire is changing all the time. So I'm kind of curious how federalists the Supreme Court has been over time and where we are when we get to Murphever's NCAA compared to other times in history.
Well, even what the Court means when it talks about federalism has sometimes changed, and so there's a little bit of a yes, yeah, the sort of moving target kind of are we all agreed about what this term that's so important but very underspecified actually means. Yes, It's not a sort of straight line one way or the other. It's not like in the olden days whenever those were
they didn't care about federalism, and now we do. Nor was it they used to care a lot and now we don't, which I think goes to sometimes how again, the Supreme Court today sort of acts like in the good old days, everybody understood federalism was real and this
is what it meant. We need to bring that back because one of the most significant facts or kind of again surprises in many ways about the early nineteenth century is just how nationalistic in lots of ways the Supreme Court was of people were and they disagreed what the purpose of the union, what the purpose of that was, what it was supposed to look like, wild disagreement. But did they believe in significant federal national power much of
the time. The answer is yes, in part because Southerners, to take the usual objection right, which would be wholl but what about all these Southern slave owners who want states rights they do when they don't, because when you look more closely, you can find plenty of Southern slave owners, including James Madison, including John Marshall, and lots of others who think they're going to control the national government because of all the things in the Constitution that give them
more power. From the three fifths clause, which says, for purposes of Congressional representation, a state with a lot of enslaved people, those people all count for purposes of population at least three fifths of a person. We look at that and where like, how could they have counted any
person as three fifths of a person? But it was giving additional representation in Congress to states that had slavery, which meant for much of the early nineteenth century, the federal government is in the hands of Southern slaveholders, and that goes just from Congress all the way to things like the Electoral College to appointments to the Supreme Court. So, in a sense the sort of where is slavery and
all this, the answer is it's kind of everywhere. But I think much of the impetus of Marshall and even Jefferson, people who we think of as skeptics of some forms of national power. Their primary focus was building a union and having a union, and so they believed in national power, and they said, federalism means both, we have this national layer of government, but the states are not just districts
administrative arms of the center. There's a tension there. And then I think, for say eighteen fifteen to eighteen sixty one, tons of federalism talk, but very different views of what federalism is. Like, does it mean Andrew Jackson as president gets to tell South Carolina stop nullifying federal law or I'll send in the army. Yes, in fact Jackson says that right, But it also means, you know, Jackson is comfortable allowing Georgia to expropriate land from the Cherokee Nation
and lots of other indigenous nations. And then around about I would say eighteen sixty three, it's like midway through the Civil War that I think we start to get a resurgence of kind of unabashed nationalism and not as much states rights ism. And then the twentieth century, the New Deal, the civil rights movement, a lot of expansion of federal power. And then I think the nineteen eighties
and nineteen nineties, the Supreme Court. He discovers what it calls federalism, and that's where we get the cases that lead us to Murphy versus NCAA, the commandeering or anti commandeering cases that say, take states seriously, don't let Congress commandeer, and reading the Tenth Amendment as all about preserving power for the states.
Why do you teach Murphy?
Well, I teach Murphy because I teach the commandeering cases that preceded it, which are Congress telling the states do this thing like pass a law that allows hazardous waste disposal or else you the state own the hazardous waste. Court says, no, you can't do that. Another case where the Court says, hey, states help set up gun registries and state officials have to maintain them while we get the federal system up and running. The Court says, no,
you can't do that. Commandeering and Murphy is like the hypothetical you would ask in class where you said, Okay, Congress can't take over and command your state legislatures and state officials by telling them what to do? Can I tell them what not to do? And that is like a classic law professor move to say okay, we talked about the positive case, what about the negative? Can Congress
say you can't do this? And that's Murphy? Murphy is the hypothetical that a lot of us were asking, because it's can Congress say to the states, here are things you cannot do? And pre Murphy, I think the answer would have been, that's basically a supremacy clause preemption question. They do it all the time, and that's why Justice Alito and the majority in Murphy have to do this intense hair splitting that they do about this is targeting the states, it's not private parties.
When you say this to the class, can Congress tell states what they can't do? What kind of responses do you get?
I think people are suspicious, they feel like they're being tricked. Maybe that's just you know, another day in a law school classroom. But I mean it depends how you frame the hypothetical, because I think if you say, can Congress tell the states the state legislature is what they can't do, well, let's say Congress passes wage and hour's laws, federal minimum
wage or things about safety. Isn't that implicitly telling the state you can't have a law that says you can pay people sub federal minimum wage.
You can't have child labor.
You can't have child labor. Yeah, and the answer has to be read the supremacy Clause Article six says federal laws supreme any state law to the contrary notwithstanding. So what is it that's different? And I actually find it it's actually quite hard to frame the holding of Murphy in a way that brings the class along. It feels very hair splitting. I think because the overall picture of Congress can put things on the table for the states,
it can take things off the table. It can't compel the states to do things.
What are the consequences of having Murphy as.
A precedent, As often happens, when you take a federal rule off the table, you get this explosion of state activity. And the happy federalism story is the states act as laboratories of democracy, and the sad federalism story is race to the bottom. But you get states that say great, you know, the states are more in touch with their constituencies, like New Jersey can decide to have sports gambling to the extenate wants to California.
But are there broader consequences outside of sports? Gambling. If you've got the president of Murphy, where the Supreme Court has said Congress can't tell the states what they can't do, what else might Congress not be able to tell the states they can't do.
Well, potentially a whole host of things. I think Justice Alito has this line in his opinion in Murphy, where he says, this is like a member of Congress is standing over the shoulder of the state legislators. That's different from Congress passes a federal law that says, you know, drug labels have to have the following information, or you have to have the following kind of environmental standards or
scrubbers on factories or whatever. Because we understand that to mean, okay, the states can't pass a conflicting state law, but the federal law is directed at other players beyond just the state legislature, like they're also talking there to you know,
to factories or to other parties. But sure, you can certainly imagine, especially in our moment right now, a situation where whatever we're talking about, whether it's all the different federalism adjacent issues right now, abortion, the border, the mif of pristone with the interstate shipment of abortion inducing medication and having a federal rule in lots of cases seems
desirable because we have uniformity. But it's also true that people are going to have very different policy views about those things and might in fact say, you know, no, it's actually better to have different states having different rules.
So a rule that says Congress can't prohibit the states from doing things potentially, I mean, this is one of the ironies actually in the Court's opinion right where they I think they think of themselves as doing They say they don't want to do judicial activism, they're not big fans of broad judicial power and so on and so forth, but they issue rules that do really affect the behavior of other institutions and other people. Congress has to be
very clear what it's preempting in the statute. Get some private parties, not just state actors in there. But we're going to have a lot of litigation about what can states do up to that point, and you know, can they make their own rules or can they not make their own rules?
Thank you so much for this.
Thank you very much.
Alison Ler Croix is the Robert Newton Reed Professor of Law at the University of Chicago. And author of the Interebellum Constitution, Union, Commerce, and Slavery in the Age of Federalisms. Against the Rules is written and hosted by me Michael Lewis and produced by Lydia gen Kott, Catherine Gerardeau and Ariella Markowitz. Our editor is Julia Barton. Our engineer is Sarah Bruguer. Against the Rules is a production of Pushkin Industries.
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