Are Casinos Banned by Kentucky Constitution?

At various times while researching these articles I leaned in different directions with regard to casino gambling and whether or not it is, is not or ever was banned by the constitution of the Commonwealth of Kentucky.

To understand the conclusions it is important to understand the history and the path that leads to those conclusions. If you read this and find errors in the logic you may fairly arrive at a different conclusion than this author did.

Kentucky was initially (pre 1792) a part of Virginia and Virginia was an English Colony prior to becoming a state. The first and the fourth ( present) constitution of Kentucky clearly states that all laws that were in effect in Virginia in 1792 that have not been modified by this Constitution or laws enacted by the General Assembly are still in force. [1]

Much of the early law in both Virginia and Kentucky is based on English comon law as modified by the Constitution and Bill of Rights of the United States. It is a fairly safe assumption that any laws of England not modified by Kentucky or Virginia have some bearing on our interpretation of the laws in Kentucky and Virginia.

The writers of the 4th Constitution of Kentucky should have been aware of the existing laws whether written or unwritten and they surely had a particular goal in mind as they wrote the document. I have no doubt that that it was constructed in such a manner as to achieve the goals of the writers with statements included and things omitted. Such is the nature of a compromise that creates such a document.

Sir William Blackstone (1723 ? 1780) was an English jurist and professor who produced the historical and analytic treatise on the common law called Commentaries on the Laws of England. It remains an important source on classical views of the common law and its principles.

In his Commentaries on the Laws of England, he noted that the term "lottery" defined a wide range of activities. "All private lotteries by tickets, cards, or dice ... are prohibited under a penalty ... for him that shall erect such lotteries.... Public lotteries, unless by authority of parliament, and all manner of ingenious devices, under the denomination of sales or otherwise, which in the end are equivalent to lotteries, were ... prohibited...."

While you and I may only know the lottery as what exists today, these educated men, the writers of the constitution either knew that the term 'lottery' had a legal definition or they chose the term that best described the commercial gambling enterprises that existed at that time. Their intention was to completely eliminate commercial gambling enterprises. So, they wrote in Section 226 of the Constitution that all lotteries, gift enterprises and any similar scheme shall not be allowed. [2].

There was no way for them to use the term casino because the now common usage of that word did not exist at that time. Webster's Revised Unabridged Dictionary (1913) defines a casino as:
1. A small country house.
2. A building or room used for meetings, or public amusements, for dancing, gaming, etc. [3]
It is important to note here that the term "gaming" to describe gambling is an even more modern usage coined by the casino industry to sugar coat the reality of their business.

There is evidence in the constitutional debate notes that an amendment to outlaw all forms of gambling was introduced by one of the representatives and that amendment was rejected [4] "thus indicating that it was the intention of the Convention not to include in section 226 anything but lotteries of the type familiar at the time."

Blackstone defined a lottery as any game of chance using tickets, cards, dice or all manner of ingenious devices where people paid in money in the hopes of winning more money. Amazing that a man who died at least a 100 years before most of the modern casino games and their equipment was invented could cover it all in about two sentences.

The courts in Kentucky and several other states have supported that view. The Kentucky case was Commonwealth v Kentucky Jockey Club, Inc., [5]. Where the court affirmed the position that a lottery is a species of gambling where people pay in small amounts money in the hopes of winning more money.

While I have now reversed my previously held opinion and believe that the framers of the constitution did in fact intend to ban all forms of commercial gambling the final answer to that question can only be decided in the courts of the Commonwealth of Kentucky or by a constitutional amendment authorizing casino gambling.

Footnotes & Source attribution

[1] 4th Constitution of Kentucky Section 233 Virginia---what laws of force in this State. All laws which, on the first day of June, one thousand seven hundred and ninety-two, were in force in the State of Virginia, and of which are of a general nature and not local to that State, and not repugnant to this Constitution, nor to the laws which have been enacted by the General Assembly of this Commonwealth, shall be in force within this State until they shall be altered or repealed by the General Assembly.

[2] 4th Constitution of Kentucky Section 226. Lotteries and gift enterprises forbidden. Lotteries and gift enterprises are forbidden, and no privileges shall be granted for such purpose, and none shall be exercised, and no schemes for similar purposes shall be allowed. The General Assembly shall enforce this section by proper penalties. All lottery or charters heretofore granted are revoked.

[3] Webster's Revised Unabridged Dictionary (1913 + 1828)
ARTFL > Webster's Dictionary > Searching for casino:
Displaying 1 result(s) from the 1913 edition:
------------------------------- Casino (Page: 223)
Ca*si"no (?), n.; pl. E. Casinos (#), It. Casini (#). [It. casino, dim. of casa house, fr. L. casa cottage. Cf. Cassing.]
1. A small country house.
2. A building or room used for meetings, or public amusements, for dancing, gaming, etc.
3. A game at cards. See Cassino.
No results found in the 1828 edition. Please modify your search and try again.

[4] Source OAG 05-003 - March 21, 2005 - Greg Stumbo, Attorney General
The Court drew directly upon the Debates of the Constitutional Convention and found:
At the time section 226 was being considered in the convention that framed the Constitution, an amendment was proposed forbidding every species of gambling. Volume 1. Debates of Constitutional Convention p.1172. The delegate who proposed the amendment was asked whether his proposition embraced the prohibition of betting upon the speed of horses, to which he responded that it was his purpose to forbid all species of gambling and all games of chance in every conceivable form. He argued that all gambling was equally wrong, and that it was unfair to denounce gambling in the form of a lottery and to countenance it in other forms, such as betting upon horse races, and the like. The delegate from Lexington argued that it was not the appropriate place to deal with pooling privileges upon race courses, and other forms of gambling, because lotteries theretofore had been licensed by the Legislature, and the object of the pending section was not to deal with any other species of gambling, but to prohibit the Legislature from granting licenses to lotteries. The amendment was rejected, thus indicating that it was the intention of the Convention not to include in section 226 anything but lotteries of the type familiar at the time.?

[5] Source OAG 93-58 - August 5, 1993 - Chris Gorman, Attorney General
In the case: 238 Ky 739, 38 SW2d 987, 994 (1931).
The court approached the issue by adopting a textbook definition of lottery: A lottery, it is said, is a species of gambling, described as a scheme for the distribution of prizes or things of value, by lot or by chance, among persons who have paid, or agree to pay, a valuable consideration, for the chance to share in the distribution, or as a game or hazard in which small sums of money are ventured for the chance of obtaining a larger value in money or other articles.

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