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July 20, 2007
The Ninth Amendment, Dog Fighting, Gambling, and Constitutional Originalism
When the Constitution was adopted, dog fighting was, it seems, legal in all 13 states.
Should those who believe in the interpretive doctrine of originalism be arguing that under the Constitution, the criminalization of conduct that was legal in all 13 states from the founding of our country until the late Nineteenth Century involving the use one's property that in no way injures another person violates the Ninth Amendment because the right to gamble on dog fighting was not only well recognized, but involves the use of one's own property in a manner that harms no other person. Is this not one of those unenumerated "rights" enshrined in the Ninth Amendment to be free for all time from federal government elimination -- as Vick faces no "time, place, or manner" problem, to borrow a 1st Amendment phrase.
How 'bout the due process clause -- as understood in 1789 -- because gambling on dog fights was perfectly legal? Does not the criminalization of behavior seen as legal since not long after the Jamestown settlement until William McKinley's presidency establish reasonable expectations in the limits of the federal criminal laws? And I'll toss in the Fifth Amendment's Taking's clause, as obviously, the criminalization of dog fighting takes -- to use a law school metaphor -- one of the sticks from the bundle of rights recognized at the founding as essential to ownership of a dog.
[To be clear, I'm no gambler. And I'm definitely no proponent of dog fighting.]
I'm also struck by the almost 'round-the-clock coverage of Vick's alleged participation in a dog-fighting conspiracy as proof of his, well, pathological badness . . . only a bad person would so mistreat a dog.
What Vick's case is really about, though barely audible above the current din, is his involvement -- allegedly -- in a gambling enterprise. Vick is an NFL quarterback. Quarterbacks handle the ball on nearly every every offensive play. No player is better positioned to change the outcome of a game than a quarterback.
The NFL seems happy to let the media make this case all about Vick's inhumane treatment of dogs. And the media seems pleased to treat the story as having nothing to do with gambling.
Why? Because otherwise the NFL would have to start explaining why a player as talented as Vick is basically a substandard passer with a .500 record. And the media might have to do some real investigative fact gathering (and let's not forget, we're talking about sports reporters here, not vintage Woodward & Bernstein).
That is, the NFL and media would have to deal with questions about whether, given the allegations, Vick's been throwing games (aargh . . . no pun here) to settle gambling debts.
Far fetched? Hardly. An NBA referee is under investigation by the FBI for point shaving.
Posted by shertaugh at July 20, 2007 6:46 PM