Five Constitutional Rules and American Sports
The Box Score
The U.S. Constitution is the main rulebook in American politics. Here, we consider five of its most important rules for the politics of sports.
1. Republicanism and Representation. The Constitution establishes a republican government in which the will of the people is expressed through elected officials, but it doesn’t say how this should happen. Should politicians do what they think is best or what the people want? We’ll examine this dilemma through a Utah governor deciding whether or not to ban transgender athletes.
2. Federalism. Federalism divides powers between the national and state governments, but the line between the two isn’t always clear. Is gambling on sports a federal or state decision? We’ll see how the answer to this question has changed dramatically over the past few decades.
3. Separation of Powers and 4. Checks and Balances. The separation of powers is a system of government in which different branches do different things. Checks and balances are a set of rules that allow each branch some say in what the others do. Both concepts are analytically distinct, but together they constitute the defining feature of American politics. We’ll see how Congress, presidents, and the Courts have each played a role in creating Major League Baseball’s monopoly power, mandating gender equity in school sports, and professionalizing college athletics.
5. Civil Liberties and Civil Rights. Civil liberties limit how far the government can intrude into our personal lives. Civil rights requires that the government treat people equally. We examine both concepts through the NFL national anthem protests.
The Complete Game
As we’ve seen in the Introduction, both politics and sports are governed by rules. The U.S. Constitution is the most important, though not the only, “rulebook” in American politics.
We’ll soon take a look at the five most important rules in the Constitution, but before we do, a brief word on how this and subsequent posts are structured.
Each section begins with a basic definition of a political term or concept. “The Rules” then uses sports analogies to explain those terms and concepts. Sports analogies are imperfect descriptors of politics, and I’ll be sure to point out where they fall short. Nevertheless, using the familiar (sports) to explain the unfamiliar (American politics) can help us better understand political terms and retain information. Finally, “The Game” will show how these concepts play out in real cases involving the politics of sports.
Now, on to five of the most important rules of the U.S. Constitution.
1. Republicanism and Representation
Definition. Republicanism is a system of government in which the people exercise political power through elected officials. Representation is how politicians reflect the interests of their constituents.
The Rules. Why Being a Politician Is Like Being an NFL General Manager. The NFL Draft puts General Managers (GMs) in a bind similar to one faced by many politicians. Most NFL teams have a GM who has the final say on the roster, including draft picks. Being a GM is hard. They have little job security and face intense scrutiny from fans and the media. Unlike politicians, GMs aren’t elected by fans, which kind of screws up the “republicanism” part of this analogy. Still, the pressure and constraints of their decision-making are similar to the challenges the politicians face when representing their voters.
Having a top-10 pick in the NFL draft means that your team sucked last year, and now your team has the chance to draft one of the best players coming out of college. GMs can use their pick or trade it to another team, usually to stockpile later picks.
Using a top-10 pick to draft a quarterback might seem like the best strategy, but it’s usually not. Behavioral economists Cade Massey and Richard Thaler make a convincing case that teams would be much better off trading away overvalued top draft picks. Indeed, they find “That treasured first pick in the draft is, according to this analysis, actually the least valuable pick in the first round!”
Despite the evidence, GMs rarely follow Massey and Thaler's advice. Why? Perhaps GMs don’t read behavioral economics. Maybe they have read the literature, but trust their own instincts more than the work of some pencil-necked economists. Possibly, the owner is pressuring them to use the first pick to draft a quarterback. Or maybe the GM knows that trading down is the best move, but won’t do it because they fear the inevitable backlash from fans and media. I find this final possibility the most interesting and worth exploring further through a hypothetical.
Imagine you’re the second-year GM of a team with the first pick in the 2030 NFL draft. Your team has glaring needs at every position, but the biggest is rebuilding your offensive line. The popular pick would be to draft the Heisman-winning quarterback out of Alabama, who draft guru Mel Kiper has called a “generational talent.” But what good does it do to draft a quarterback if he’s playing behind a sieve of an offensive line? As the GM, you are convinced that trading down and picking up two offensive linemen later in the first round is far better for the team in the long run. However, you also know that the fans and pundits would throw a fit if you did, and you’re already on the hot seat. You now face the choice of doing what you think is best for the team or doing what is popular with the fans.
I suspect most GMs go with the popular choice and draft the Alabama quarterback.
American politicians often face a representation dilemma similar to that of our hypothetical NFL GM. There are several factors that could influence a politician’s vote on any given issue, including:
What the politician thinks best.
What the public wants.
What their political party wants.
What interest groups want.
What the president wants.
What the media might say.
When all these factors line up—for example, they all say to “vote no” on a bill—representation is easy. Representation only becomes a challenge for politicians when some of these factors say “vote no,” while others say “vote yes.” When this happens, politicians are said to be cross-pressured.
There are two competing models of political representation for cross-pressured politicians. The delegate model of representation says that, when push comes to shove, politicians should do what their constituents want. The trustee model of representation says that politicians should do what they think is best.
Before we explore both models in greater depth, it is important to consider the term constituents. At the broadest level, constituents are the people who live in the geographical area represented by a politician. For presidents, that is all Americans. For U.S. Senators, it is everyone in their state. And for members of the U.S. House of Representatives, it is the residents of their congressional district. However, politicians may have narrower conceptions of who their constituents are, which then affects how they govern. Some politicians might view their constituents as all voters rather than all citizens; as only those voters who voted for them; as those of the same party as themselves; as voters in primary elections; as those who pay the most attention to politics; or as big-money donors who fund campaigns.
Now, back to the delegate model. The rule of thumb for delegates is simply to do what their constituents want at all times. If voters want tax cuts, the politician votes to cut taxes. The politician exercises no independent judgment of whether tax cuts are good, bad, or indifferent; they simply do as they’re told.
There are a couple of advantages to the delegate model. First, it seems consistent with the whole idea of democracy. If a democracy is a system of government by the people and for the people, it seems only reasonable that politicians do what the people want. Second, public policy tends to be very responsive to changes in public opinion, even between elections. Politicians know that the best way to get reelected is to do what their voters want, which gives them a strong incentive to stay attuned to their voters’ preferences and to respond quickly to them.
There are, however, some downsides to the delegate model. First, it places significant weight on voters’ opinions, and sometimes, voters may not have the best grasp of the intricacies of politics or might actually want conflicting things. Should future Social Security benefits be calculated by the Consumer Price Index (CPI), CPI-U, CPI-W, C-CPI-U, or Core CPI? This is a billion-dollar decision, yet few Americans know how using these various inflation measures might affect Social Security payments. Moreover, Americans often want contradictory things, like more government spending and lower taxes. One reason the U.S. is massively in debt is that politicians have responded to these seemingly incompatible public preferences.
A second downside to the delegate model is that there is little deliberation in government. The Framers of the Constitution wanted the U.S. Congress to be a deliberative body in which politicians would reason with one another and choose the best policy for the country. However, if a politician always does what the public wants, there is no real deliberation inside government because everyone’s mind is already made up. Instead of deliberation, we get loud and angry debate with no possibility of compromise or conciliation.
A final downside of the delegate model of representation is that, in the words of former Speaker of the House Tip O’Neill (D-MA), all politics becomes local. Members of the United States Congress must consider what is best for the citizens of their respective states (if Senators) or districts (if U.S. Representatives), not necessarily what is best for the nation as a whole. As a result, Congress often takes on a local focus when it should arguably be responding to national needs.
The trustee model of representation takes the opposite approach. Here, politicians do what they think is best, not necessarily what their constituents may prefer. In a way, politicians act as caretakers for the public, much as parents do. When my kids were little, they wanted to eat at McDonald’s for every meal. My wife and I ignored our children’s will and forced them to eat vegetables. Our decision wasn’t popular—thank God we didn’t have to stand for reelection—but it was in our children’s best interest.
There are several advantages to the trustee model of representation. First, it allows for deliberation in government. Instead of being beholden to public opinion, politicians are free to reason among themselves about the best course of action. A second, related point is that politicians are arguably better positioned to debate the merits of policy than the average American. A politician’s job is politics. As such, they should know the intricacies of how things work, such as CPI and Social Security. By contrast, normal Americans are expected to be politically aware, but we cannot possibly know the ins and outs of every public policy. Finally, politicians who act as trustees can serve the best interests of all Americans rather than just those who reside in their state or district.
There are, however, some downsides to the trustee model. First, it risks a paternalistic government in which politicians think they know better than the people they serve. It is one thing for me to tell my kids they can’t eat McDonald’s; it is another for a politician to tell full-grown adults what’s best for them. Second, it seems wrong for politicians to ignore a strong majority opinion, especially if we’re part of that majority. Finally, responsiveness to public opinion tends to be slower under trustee representation because it depends on elections. In the delegate model, politicians constantly ask the public what they think and act accordingly. In the trustee model, voters elect a politician who then goes off to D.C. and makes whatever decision they like for the next two years (U.S. House), four years (President), or six years (U.S. Senate). If voters don’t like these decisions, they have to bide their time until the next election rolls around so they can vote the rascal out.
It’s up to you to decide which model of representation is best, but if you are anything like me, you’re probably not too principled on the matter. Selfishly, I want politicians to act as delegates when I’m in the majority, but as trustees when I’m in the minority. But regardless of what we might prefer, how do politicians usually act?
Most Americans believe that elected officials don’t care what they think, but that is usually not the case. In their classic work, political scientists James A. Stimson, Michael B. Mackuen, and Robert S. Erickson found that government policy closely tracks public opinion: when the country moves in a liberal or conservative direction, public policy soon follows. The U.S. government is surprisingly responsive to public preferences, but the mechanisms that underpin this responsiveness vary across institutions. Members of the U.S. House of Representatives are the most likely to act as delegates because their relatively short two-year terms mean they are constantly running for reelection. By contrast, Senators can more easily act as trustees, given that their six-year terms provide some shelter from the winds of public sentiment. First-term presidents are somewhere in the middle, but can more easily act as trustees in their second term because they can’t run for a third. Even the Courts, which are theoretically insulated from public opinion because they don’t stand for election, tend to be responsive to changes in public opinion through the nomination and confirmation process.
The Game. Political Representation, Transgender Athletes, and Utah HB11. One of the most contentious political issues in sports today is the status of transgender athletes. We’ll cover this issue in depth in a later post, but here, we’ll focus on how a Utah bill illustrates the dilemma of political representation.
In the early 2020s, a wave of bills across the United States sought to ban transgender athletes from athletic competition. Utah, however, sought a middle ground. In 2021, House Bill 11 (HB11) sought to create a commission to assess, on a case-by-case basis, whether transgender athletes could compete alongside cisgender athletes.
Among the supporters of the original version of HB11 was Republican Governor Spencer Cox, who favored a compromise that would avoid an outright ban on transgender athletes but would also ensure a safe and level athletic playing field.
At the last minute, however, opponents of the bill passed a substitute amendment that banned transgender athletes entirely. In March 2022, HB 11, as amended, arrived on the desk of Gov. Cox, who then had to decide whether to sign it into law or veto it.
Before we get to Gov. Cox’s decision, let’s consider the political context surrounding his decision.
By 2022, transgender athletes had suddenly become one of the fiercest battles in the American culture wars. From 2015 to 2018, just three bills were introduced in statehouses nationwide to limit or ban transgender athletes from competition; from 2019 to 2022, that number skyrocketed to 168.
Nationally, a majority of Americans opposed transgender athletes competing alongside cisgender athletes. In a 2022 Pew Research Center poll, 66 percent of all respondents felt that transgender athletes should be required to “compete on teams that match the sex they were assigned at birth, not the gender they identify with.” For Republicans, that number rose to 85 percent.
The political context in Utah doesn’t always fit neatly into the Red State vs. Blue State stereotype. Utah is among the most Republican-leaning and religious states in the nation. Given the national context and the state’s conservative leanings, one might expect strong support for an anti-transgender athlete bill in Utah. Yet Utah politics often runs counter to the conservative grain. Its lawmakers often speak of “The Utah Way,” which emphasizes civility, inclusion, and community. As evidence of a surprising progressive streak, the Utah state legislature has passed LGBTQ+ non-discrimination policies, and the Church of Jesus Christ of Latter-day Saints, which dominates Utah politics, has even endorsed federal legislation that would safeguard same-sex marriages so long as the Church doesn’t have to perform them.
But despite their unique brand of conservativism, most Utahns opposed allowing transgender athletes to compete in women’s sports. A Deseret News and Hinckley Institute of Politics poll in April 2022 found that 54 percent of all Utahns and 65 percent of Republicans supported HB11 as amended. While these numbers are lower than national averages, there was, nevertheless, a majority in the Beehive State that supported a ban on transgender athletes.
All of this leads us to the difficult choice facing Gov. Cox. Should he act as a delegate and sign HB11 into law, or as a trustee and veto it?
On March 22, 2022, Gov. Cox decided to act as a trustee and veto HB11 (recall this was the amended version that banned transgender athletes entirely, not the compromise version that he originally supported). He then laid out his rationale in a five-page message to the Utah legislature. Cox lamented the inability to reach a compromise, bemoaned the violations of normal legislative procedures in the 11th-hour amendment, and cited the huge costs the bill would impose on high school athletics. But the most striking part of his message was a recognition of how the bill would affect the four transgender high school athletes currently in the state. Here’s what Gov. Cox wrote:
Finally, there is one more important reason for this veto. I must admit, I am not an expert on transgenderism. I struggle to understand so much of it and the science is conflicting. When in doubt however, I always try to err on the side of kindness, mercy and compassion. I also try to get proximate and I am learning so much from our transgender community. They are great kids who face enormous struggles. Here are the numbers that have most impacted my decision: 75,000, 4, 1, 86 and 56.
● 75,000 high school kids participating in high school sports in Utah.
● 4 transgender kids playing high school sports in Utah.
● 1 transgender student playing girls sports.
● 86% of trans youth reporting suicidality.
● 56% of trans youth having attempted suicide
Four kids and only one of them playing girls sports. That’s what all of this is about. Four kids who aren’t dominating or winning trophies or taking scholarships. Four kids who are just trying to find some friends and feel like they are a part of something. Four kids trying to get through each day. Rarely has so much fear and anger been directed at so few. I don’t understand what they are going through or why they feel the way they do. But I want them to live. And all the research shows that even a little acceptance and connection can reduce suicidality significantly.
For that reason, as much as any other, I have taken this action in the hope that we can continue to work together and find a better way. If a veto override occurs, I hope we can work to find ways to show these four kids that we love them and they have a place in our state.
Did Gov. Cox make the right call? Well, I guess that depends on where you stand on the issue of transgender athletes. But at a deeper level, it also depends on what we want from our politicians. If we want politicians to follow the public will, then Utahans were poorly served by their governor’s veto. But if we want politicians to stand by their principles, then Gov. Cox made the right decision.
In the end, the Utah legislature overrode the veto, and HB11, as amended, became state law. The vote to override included 15 Republican lawmakers who originally voted against the bill. We can only speculate on what led those lawmakers to change their vote on HB11, but it seems likely that the cost of continuing to defy public opinion grew too high for some, especially with a primary election approaching. Others continued to stand on principle while recognizing the potential costs, including Republican Sen. Daniel Thatcher, who said, "I cannot support this bill. I cannot support the veto override and if it costs me my seat so be it.”
Summary of Political Representation. The United States is a republic in which the American people exercise power through elected representatives. Politicians are expected to represent their constituents, but the Constitution is silent on how they should represent them. Like an NFL GM deciding between the prudent and the popular draft choice, politicians often wrestle with whether to act as a trustee, doing what they think is best, or as a delegate, doing what their constituents want.
2. Federalism
Definition. Federalism is the division of political power between a national government and regional governments. The U.S. Constitution gives some political powers to the federal government in Washington, D.C., and reserves others to the states. The line between federal and state power is not always clear.
The Rules. Why Federalism in the United States is Like the Olympic Games. The Olympic Games have a federal-like organizational structure with the International Olympic Committee (IOC) at the top of the hierarchy. However, the IOC doesn’t call all the shots. In fact, arguably more power rests with sports’ governing bodies (e.g., FIFA and World Athletics) and National Olympic Committees (e.g., the United States Olympic & Paralympic Committee or the British Olympic Association). So, who makes policy on issues like performance-enhancing drugs or transgender athletes? The IOC has largely left these questions up to sports federations, which complicates things.
Let’s take a brief look at the federal-like structure of the Olympic Games through the controversy over Russian athletes, a topic we’ll explore in greater depth in a later post.
From 2014 to 2016, a mountain of evidence emerged that Russia was engaged in state-sponsored doping. The IOC declined to impose a total ban on Russian athletes, leaving the decision to each sport’s governing body. The result was that many Russian swimmers, gymnasts, and other athletes took home Olympic medals while Russian track & field athletes were banned from competition.
There are pros and cons to the IOC leaving the decision on Russian participation to sports’ governing bodies. On the one hand, the IOC’s unwillingness to adopt a blanket policy led to inconsistencies and concerns about fairness. If the Russian state-sponsored doping program was as widespread as it appeared, then all Russian athletes compete under a cloud of suspicion. It seems unfair for clean athletes from other countries to have to compete against quite possibly doped-up Russians in some sports but not others. On the other hand, perhaps Russian doping was more prevalent in some sports than others, in which case individual governing bodies would be best positioned to make the call on participation.
Federalism has always been one of the thorniest questions in American politics, largely because the stakes are high and the dividing line between federal and state power isn’t always clear.
The U.S. Constitution establishes a federal structure and defines the powers of the federal government. The enumerated powers, described in Article I, Section 8, lay out eighteen things that Congress can do, the first seventeen of which are specific tasks, including the power to tax and spend, coin money, and regulate commerce (this last one is, as we will see, the main justification for the federal government’s involvement in sports).
But the Framers of the Constitution were smart enough to realize they couldn’t name all the things the new Congress might need to run the country, so they gave it a wild card in Clause 18 of Article I, Section 8. The Necessary and Proper Clause, also known as the Elastic Clause, gives Congress additional implied powers to carry out its enumerated powers. For example, Congress has the enumerated powers to coin money and regulate commerce. But to do those things, you arguably need a national bank. Although the Constitution does say Congress can create a national bank, the Supreme Court’s McCulloch v. Maryland (1819) decision held that the Necessary and Proper Clause gives it the implied power to do so.
The Framers of the Constitution anticipated cases in which federal and state laws might conflict. The Supremacy Clause of the Constitution (Article VI, Clause 2) says that when that happens, federal law takes precedence. This is the constitutional equivalent of a tie going to the runner in baseball.
Although most of the Constitution focuses on what the federal government can do, it nevertheless delegates considerable powers to the states. The Tenth Amendment of the Constitution says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
There are two things to note about federalism in America.
First, it is a perennial source of conflict. The United States’ first attempt at a set of governing rules, the Articles of Confederation (1777-1789), gave so much power to the states that the federal government couldn’t even raise money for an army or issue its own currency. The Constitutional Convention featured a raucous debate between Federalists, who favored a stronger national government, and Anti-Federalists, who favored greater power for the states; the resulting Constitution (1789) reflects a compromise between the two. The Civil War (1861-1865) was fought over slavery and federal authority versus states’ rights, and, nearly a hundred years later, the South was still preaching “states’ rights” to keep segregated Jim Crow laws on the books (1877-1965). More recently, federalism battles have been fought over whether the federal government or the states can make policy on same-sex marriage, abortion, immigration, marijuana, the environment, health care, education, voting laws, and, as we will soon see, gambling.
The second thing to know about federalism is that while there has been an ebb and flow in power over American history, the trend has been toward a stronger federal government. Simply put, the federal government does a lot more things than it used to.
The federal government’s increased power over the years derives from two main sources. The first is an increased willingness to rely on the Necessary and Proper Clause to legislate, even if it isn’t explicitly invoked. Congress doesn’t always get away with it, but it usually tries.
A second source of expansive federal power is the Commerce Clause, which grants Congress the power to regulate commerce between the states and foreign nations. Technological advances have led to an increasingly interconnected U.S. economy. Just look around you and see how many products come from other states or countries. If almost all the products we buy cross state borders, then it gives Congress the right to stick its hand in nearly everything short of a farmer’s market or a lemonade stand.
As we will see, the Commerce Clause is the main reason why the federal government gets involved in sports. Professional and most college sports teams cross state lines to play games for money. That is interstate commerce. The real story is much longer and more surprising, but a subject for another time.
There are strong arguments for centralization, whose advocates favor the U.S. federal government making policy, and for devolution, whose proponents believe states should have a greater say in policy-making.
Advocates of centralization make several arguments. Sometimes it just makes sense to have a one-size-fits-all policy. Imagine if all 50 states could issue their own currency; interstate commerce would be a nightmare. Federal policymaking can also address inequalities within and between states. This is most apparent in racial policy as the Southern states used the “states’ rights” argument to deprive Black Americans of fundamental human rights during the slavery and Jim Crow eras.
Advocates of devolution want most policies to be left to the states. States are closer to the people than the federal government and can tailor policies better to meet their unique needs. Devolution also allows for “mini-laboratories of democracy,” where 50 different states can try 50 different things, helping us see what works and what doesn’t. It also provides an “exit option” for citizens: If you don’t like the policies in your state, you’re free to move elsewhere.
The Game. Federalism and Sports Gambling. One of the biggest changes in American sports has been the legalization of sports betting, which is also a story of federalism. Like most things involving politics and sports, it’s a long and complicated story. I’ll provide a shortish version here, focused on federalism. For those who are interested in learning more, you can read a longer version in the post “The Legalization of Sports Betting in America,” or several recent books on the subject, including Losing Big: America’s Reckless Bet on Sports Gambling by Jonathan D. Cohen (2025) and Everybody Loses: The Tumultuous Rise of American Sports Gambling by Danny Funt (2026).
For most of American history, the prevailing attitude was that (a) sports betting was a vice, albeit a popular one, (b) it should be left up to the states, and (c) no state, except for Nevada, wanted anything to do with it.
In 1949, Nevada became the first state to legalize sports betting. The federal government wasn’t happy and fretted about the growing influence of organized crime. But instead of trying to eliminate Nevada's gaming industry through legislation, Washington relied on a familiar playbook for all public vices: a sin tax. In 1951, Congress enacted a 10% excise tax on sports betting, effectively wiping out Nevada’s sportsbooks for decades. Legalized sports gambling didn’t take off in Nevada until the federal tax was lowered to 2% in 1974 and then to .25% in 1982, where it remains today.
For years, no other state followed Nevada’s footsteps because gambling was thought to be bad for people. There was also a concern that gambling on sports compromised the integrity of the game, and here, there was ample cause for concern. A number of high-profile gambling scandals—including the fixing of the 1919 World Series, an NCAA basketball point-shaving scandal in 1951, and the revelation that MLB all-time hit king Pete Rose had bet on Reds games as manager—convinced sports leagues, the federal government, and every statehouse except for the one in Carson City that gambling was a moral evil.
In the early 1990s, however, a steep recession led a dozen or so states to consider any possible source of revenue, including the legalization of sports gambling.
Anticipating that states would soon legalize sports gambling, Congress passed the Professional and Amateur Sports Protection Act (PASPA) of 1992, which barred any state outside Nevada from setting up sportsbooks. PASPA neither criminalized sports betting nor created a federal agency to prosecute illegal bookmakers and gamblers; it simply prohibited states from allowing it. This may seem like a minor distinction, but, as we will see, it became the basis for a future Supreme Court challenge.
For a while, PASPA was relatively uncontroversial. However, the Great Recession (2007-09) once again set states scrambling for additional revenue sources. New Jersey was one such state.
In 2011, New Jersey voters overwhelmingly approved a referendum authorizing sports gambling, and, a year later, the state legislature passed a bill permitting gambling on professional and college sports at casinos and racetracks. In response, the professional sports leagues and the NCAA sued New Jersey for violating PASPA.
In what became known as “Christie I,” after then-New Jersey Governor Chris Christie, the Third Circuit court considered the constitutionality of PASPA. New Jersey argued that PAPSA violated the Tenth Amendment and that gambling should be left to the states. The federal government contended that it was well within Congress’s purview to regulate gambling.
In a 2-1 decision, the Third Circuit upheld PASPA, ruling that Congress can preempt state laws under the Supremacy Clause of the Constitution. The Court found that PASPA didn’t compel states to regulate gambling; it merely prohibited states from legalizing it. Put differently, New Jersey didn’t have to pass a law that made gambling illegal; they just couldn’t pass a law making it legal.
After the Court’s ruling, it looked like it was game over for New Jersey and the other states that wanted to legalize sports gambling. But New Jersey had a trick play up its sleeve.
New Jersey drew up an innovative new game plan after its loss. Instead of legalizing sports gambling, it would now make it not illegal by repealing all state laws and regulations on sports betting for adults, but only at casinos and racetracks.
Whether a state makes sports betting legal or not illegal may sound like a distinction without a difference. However, it was a clever legal strategy. To see why, we must take a brief trip into the legal weeds.
At issue in the New Jersey case is a legal principle called anticommandeering, which holds that Congress can regulate individuals and businesses, but not states. That means Congress can’t tell a state to “pass this law,” or “enforce this federal law for us.” The term anticommandeering does not appear in the Constitution, but emerged as an important 10th Amendment legal doctrine through precedent, i.e., prior judicial decisions that establish principles and rules followed by subsequent courts.
Two anti-commandeering precedents are important here. In New York v. U.S. (1992), the Supreme Court held that Congress could not force New York to accept radioactive waste. And in Printz v. U.S. (1997), the Supreme Court held that Congress cannot compel local sheriffs to conduct federal background checks on firearm purchases.
The sports leagues again sued. This time, however, New Jersey argued that PASPA was forcing it to keep laws on the books it no longer wanted to keep. Eventually, the case reached the U.S. Supreme Court.
In Murphy v. NCAA (2018), the Supreme Court ruled 6-3 that PASPA violated the anticommandeering doctrine of the 10th Amendment. Authoring the majority opinion, Samuel Alito wrote, “Congress cannot issue direct orders to states.”
There is a subtle but important distinction here. If Congress had passed a law that forbade any American from betting on sports, that law would probably be constitutional. But that is not what Congress did. Instead, PASPA told states they could not pass a law legalizing gambling or, in New Jersey’s case, repeal an existing law. That, according to the Court, is commandeering and unconstitutional.
The Murphy decision not only changed the landscape of American sports but has also been cited as precedent in a wide range of important cases unrelated to sports, including immigration, guns, marijuana, the environment, and health care.
Murphy did not legalize sports gambling nationwide; it left it to the states. As of March 2026, sports betting is now legal in 38 states, the District of Columbia, and Puerto Rico.
The devolution of sports betting to the states has created a bewildering patchwork of laws; a perfectly legal bet in one state can be illegal in another. There are, however, two glaring loopholes that allow almost every American to bet on sports, no matter where you live.
Prediction markets, like Kalshi or Polymarket, get around state gambling laws by claiming they are a “financial exchange” where people buy and sell contracts on a future event. Unlike a normal sportsbook, prediction markets do not act as the “house.” Instead, they facilitate binary transactions—e.g., “yes/no,” “win/lose” or “over/under”—between users for a fee. They call these transactions “contracts,” not “bets.”
There are two things to know about prediction markets. First, for all the semantic gymnastics, sports prediction markets are sports gambling. Calling something a “contract” rather than a “bet” doesn’t change the fact that people are wagering money on the outcome of a game.
Second, although sports gambling is regulated by states, prediction markets are regulated by the federal government, and right now, those markets are legally open to all Americans over 18. During the Biden administration, the Commodity Futures Trading Commission (CFTC), which oversees futures trading, took steps to halt prediction markets from offering contracts on elections and sports. However, the 2024 Presidential Election changed everything. A week before the start of the second Trump administration, Kalshi appointed Donald Trump Jr. as a strategic advisor. President-elect Trump then stacked the CFTC with Republicans who are committed to preserving sports prediction markets. Until there’s a change in the White House or the CFTC loses in court—at last count, seven states have filed legal action—sports prediction markets are here to stay.
The second loophole in sports gambling laws is daily fantasy sports (DFS). DFS is basically a one-game fantasy football, baseball, or basketball contest with a wager; the practice is legal in all states except Washington and Hawaii. DFS sits in a legal gray area between sports gaming and prediction markets. Advocates of legalized DFS argue that it is a game of skill, not chance, and is therefore not technically gambling. Opponents say that it’s gambling.
There are pros and cons to having states make their own laws regarding sports gambling.
One of the benefits of devolution, or states making policy, is that it brings democracy closer to the people. If Utahns think gambling is a sin but New Jerseyans love a good parlay, then devolution allows both to have what they want. And if you live in Salt Lake but really like gambling, you can always move to Atlantic City. You don’t get these options in a system where the federal government calls all the shots.
Moreover, state-based gambling policies serve as “mini-laboratories of democracy,” where states can experiment with different models and adopt those that work. For example, if the states that allow mobile gaming enjoy greater revenue, other states might learn from that and adopt the practice.
Finally, there is the Constitutional argument that, under the 10th Amendment, any power not delegated to the federal government is reserved to the states. Since the federal government has been unwilling to take a definitive stand on sports gambling, that decision rightly belongs to the states, as the Supreme Court concluded in Murphy.
There are, however, considerable downsides to devolving sports gambling policy to the states. The most notable is the patchwork of state laws, which makes things confusing for citizens and a headache for companies.
Devolution also makes it hard to address problematic issues related to sports betting. Take prop bets. Prop bets let you wager on nearly anything imaginable, from how many yards a quarterback will throw to whether the pre-game coin flip turns up heads at the Super Bowl. Compared to traditional sports bets, prop bets are much easier to fix, and those fixes are harder to detect. As a gambler wanting to fix a prop bet, all you need is to find a college power forward with some money problems and give him $1,000 to be lazy on the boards in the first half. A number of states have banned prop bets, but that does little good if others don’t follow. This is a case where a centralized, one-size-fits-all policy makes sense.
The strangest thing about the current sports gambling environment is that it is a confusing mix of federal policy and state policies. Prediction markets and, to a lesser extent, DFS are legal for all Americans, while sports gambling is technically up to the states. In effect, the U.S. government has said, “Gambling on sports is legal for all Americans,” and “states can choose whether to legalize gambling.” That makes no sense.
Summary of Federalism. Just as the federal-like structure of the Olympics raises questions about Russian athletes, the American federal system raises questions about sports gambling. Until 1992, the decision was largely left to the states, with only Nevada accepting bets. Congress then attempted to prevent more states from legalizing sports betting with its Professional and Amateur Sports Protection Act (PASPA) of 1992. The Murphy v. NCAA (2018) ruling held that Congress overreached its authority by forcing states to do things they did not want to do. After Murphy, the regulation of gambling reverted to the states; this time, however, most states have jumped into the action.
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The next two constitutional principles—the separation of powers and checks and balances—are analytically distinct yet so intertwined in the American political system that they are often conflated. I’ll first provide definitions and brief discussions of The Rules for both concepts, before previewing how, together, they help explain much of the American sporting world.
3. Separation of Powers
Definition. The separation of powers is a system of government in which the legislative branch makes laws, the executive branch enforces them, and the judicial branch interprets them.
The Rules. Why the Separation of Powers is Like NFL Teams’ Front Office and Coaching Staff. Most NFL teams divvy up responsibilities: the GM builds the roster, and coaches coach those players. Sounds reasonable, but this separation of powers raises many questions. What if the GM drafts players that don’t fit in the coach’s system? What if the coach doesn’t adapt their system to fit their players? Who is to blame if the team is bad: the GM or the Head Coach?
While NFL teams separate powers to manage workloads, the U.S. Constitution separates powers to prevent a tyrannical system in which power is concentrated in a single ruler or branch of government that then acts as the judge, jury, and executioner of the law. The Framers of the Constitution, drawing on the writings of John Locke, believed the best way to preserve liberty was to fragment political power across the branches of government. The idea is that, by dividing power, no one branch could run roughshod over the American people. As such, they created a constitutional system in which Congress makes the laws (Article I), the president and the executive branch carry them out (Article II), and the Courts interpret them (Article III).
The Constitution achieves separation of powers in two ways. Electoral independence ensures separation between the executive and legislative branches. Citizens cast a vote for president, another for a member of the U.S. House of Representatives, and, since the 17th Amendment in 1913, still another for a U.S. Senator. Because each position is elected by a distinct constituency, no branch or chamber can hire or fire another. For example, Republican President Donald Trump dislikes many members of Congress, including Rep. Ilhan Omar (D-MN), whom he has called “garbage.” But unlike in Trump’s reality show, The Apprentice, he can’t just say, “You’re fired!” Representative Omar is elected by the people of Minneapolis, and as long as they like the job she’s doing, she can remain in Congress no matter what Trump thinks. The same is true in reverse: short of impeachment and conviction, there is no way for progressives like Omar to fire Trump. The hiring or firing of politicians is the people's job.
The separation of powers between the Courts and the other two branches comes from lifetime appointments. Once members of the federal courts, including the Supreme Court, are confirmed by the Senate, they can sit on the bench as long as they want, provided they are not impeached. Theoretically, this allows justices the freedom to make decisions that might be unpopular with a president or Congress.
Americans are so used to the separation of powers system that most of us tend to think it is a requirement for democracies. It is not. In fact, the fragmented American system tends to be an outlier in the democratic world. Consider a more unitary system, like that of the United Kingdom (UK). In the UK, its legislative body, Parliament, reigns supreme. The Prime Minister and Cabinet members are not independently elected by voters, but are chosen by the majority party in Parliament. In fact, the Prime Minister and Cabinet members are all sitting members of Parliament and can be removed at any time with a vote of no confidence. Moreover, UK courts do not have the same power of judicial review as American courts, meaning that they generally cannot declare acts of Parliament unconstitutional.
4. Checks and Balances
Definition. Checks and balances are a set of rules that allow each branch some say in what the others do.
The Rules. Why Checks and Balances are Like the NBA. All professional sports leagues want some level of competitive balance since fans tend to lose interest if the same teams always win or lose. The NBA does many things to maintain competitive balance, including a reverse-order draft, a salary cap, and revenue sharing. Sometimes this works, and the Association is fairly competitive from top to bottom. At other times, the balance is off, and one team dominates (e.g., Boston Celtics of the 1960s).
One of the truly innovative rules that emerged from the Constitutional Convention was the marriage of a separation-of-powers system with checks and balances. Political theorists, such as John Locke (1689) and Baron de Montesquieu (1748), advocated for the separation of powers well before the Framers met in Philadelphia in 1787. In their conception, however, each power was more or less supreme within its sphere. That is, the legislature would legislate, the executive would execute, and the judiciary would adjudicate. But because the Framers were so worried about tyranny, they created a system of overlapping authority in which each branch could check the power of the others to prevent any one from becoming too powerful.
There are many checks and balances in the Constitution, but let’s focus on lawmaking. Only Congress can pass a bill. However, presidents can veto bills, propose new ones, and shape how laws are carried out by the executive branch. The Courts also have a role in this process, determining the constitutionality of these laws and how they are to be interpreted.
Like the NBA’s attempts to maintain competitive balance, the power in the United States is sometimes well-balanced and is sometimes out of whack. The “textbook era” of American politics from the 1930s to the late 1960s was arguably closer to the Framers’ vision of relatively coequal branches. The combined effects of Vietnam and Watergate, however, brought about charges of an unconstrained “imperial presidency.” We see similar charges today with the “No Kings” protests against the Trump administration. Other critics charge that the Supreme Court has assumed powers the Framers never imagined nor intended. In fact, many of the biggest political changes in the past 20 years have come from decisions made by the nine unelected members of the Supreme Court. The certainly does not seem to fit Alexander Hamilton’s description of the Court as “the least dangerous branch.”
3 & 4. Separation of Powers and Checks and Balances.
We’ve looked at how the separation of powers and checks and balances are analytically distinct concepts. Together, they are arguably the defining feature of the American government.
The benefit of such a system is that, by fragmenting power, it helps prevent a tyrannical government from trampling on its citizens’ rights. It also creates a slow-moving government in which policy doesn’t lurch to the left or right with every election. Theoretically, policies that are passed are well-vetted and at least minimally acceptable to each of the three branches.
The main downside of the American system is its tendency toward gridlock. If you wanted to make governance difficult, then you couldn’t do much better than the U.S. Constitution. There are times when the current policy sucks, everyone knows it sucks, and still, nothing can be done. You don’t get that gridlock in unitary systems. And, as with NFL GMs and Head Coaches, it is hard to know who to credit or blame. If we don’t like federal deficits or governmental shutdowns, who do we blame? Congressional Republicans? Democratic Senators? The President? The Supreme Court? Each has a hand in policy-making, yet each can plausibly deny responsibility for the nation’s woes. Democratic accountability then becomes difficult, if not impossible, if you don’t know where to pin the blame.
The Game. Separation of powers and checks and balances feature prominently in most of the cases that appear in this book. Here, I briefly preview three cases to explain the concepts and prime readers for the full cases to come.
Curt Flood and Baseball’s Antitrust Exemption. Baseball’s long-standing “reserve clause” allowed team owners to pay players a pittance of their worth. Three Supreme Court decisions—Federal Baseball (1922), Toolson (1953), and Flood (1972)—exempted Major League Baseball from antitrust laws, thus allowing it to do things that would be illegal in any other industry. For decades, the Courts and the U.S. Congress blamed each other for failing to address this “anomaly.” We examine this case more fully in Curt Flood, the Supreme Court, and Baseball’s Antitrust Exemption.
Title IX. Title IX of the Educational Amendments of 1972 mandates gender equity in all educational programs receiving federal funding, including athletics. Since then, the law has repeatedly been challenged in court, expanded by Congress, vetoed by President Reagan, restored by Congress, and strengthened or weakened by every administration since Ford. We examine this case more fully in a future post.
Paying College Athletes. The professionalization of college athletics is arguably the most significant change in American sports in the 21st Century. A series of court cases not only allowed student-athletes to be paid but also created an unregulated Wild West version of collegiate athletics. Congress could go a long way toward solving many problems, but so far, it has been unable to act. President Trump has attempted to address the issue, though he lacks the power to implement serious reforms. We examine this case more fully in The Professionalization of College Athletics.
5. Civil Liberties and Civil Rights
Definitions. Civil liberties limit how far the government can intrude into our personal lives. Civil rights requires that the government treat people equally.
Why Civil Liberties and Civil Rights are like My Kids’ High School Athletic Department. Both my children enjoyed certain liberties and rights as athletes at Santa Barbara High School (SBHS). Their coaches couldn’t tell them who to vote for, whether to go to church, or who to hang out with on a Friday night. The SBHS Athletic Department also adheres to Santa Barbara School District policy, which strictly prohibits discrimination and harassment based on perceived characteristics, including race, gender, sexual orientation, religion, or nationality. Moreover, if injured, SBHS athletes have the right not to return to the field until they feel ready.
Few would object to those liberties and rights, but the interesting stuff occurs in the gray areas. Can a high school coach tell players how to wear their hair? Can schools randomly drug-test their athletes? Can a public school offer a prayer over the public address system before a football game? Can a coach pray with their players? Do transgender athletes have the right to compete alongside cisgender athletes? Can a player fire off a profanity-laden social media post criticizing a coach and still remain on the team? We’ll examine many of these questions in subsequent posts.
Liberty, aka freedom, is a bedrock principle in U.S. politics. The Framers of the Constitution were primarily concerned with creating a limited government that would preserve the natural rights —i.e., the fundamental, inalienable rights of every person, regardless of the governmental or legal system they’re born into—of the American people. The first Ten Amendments to the Constitution, known as the Bill of Rights, establish most of the civil liberties Americans enjoy. For example, the First Amendment says that the government cannot force a religion on you (the Establishment Clause), tell you how to worship (the Free Exercise Clause), what to say or think (the Free Speech Clause), prevent you from joining with others to protest governmental policies or advocate for new ones, or limit the press.
While these civil liberties seem straightforward in the abstract, they are often contentious in practice. There are three main reasons why.
First, Americans cannot even agree on how to define “liberty.” Proponents of negative liberty argue that you can do whatever you want as long as you don’t harm anyone else. By contrast, advocates of positive liberty argue that the government must play a role in helping citizens flourish. Let’s use sports gambling to flesh out the debate between negative and positive liberty.
The negative liberty folks argue that gambling on sports should be an individual decision. While some people might think gambling is a sin, most do not. And while some people are problem gamblers, most are not. Proponents of negative liberty say that it is not the government’s job to enforce morality or even protect us from ourselves. As Al Williams, a Georgia state representative and president-elect of the National Council of Legislators from Gaming States (NCLGS), put it, “Every man should have the right to go to hell if he wants to.”
A positive liberty approach to sports betting holds that gambling addicts or those who can ill-afford gambling losses are not living their best lives. Instead, they are trapped in a dark world of compulsion and loss chasing. Anyone who has suffered through addiction or watched someone else go through it knows that its depths look like anything but freedom. Moreover, the harm done by gambling is not limited to the gambler. Family fortunes can be lost. Players are harassed and threatened. And gambling scandals threaten the integrity of the game, which hurts everyone but the crooked gamblers and players on the take. Therefore, it is the government’s responsibility to protect people from themselves, from others, and to ensure the integrity of the game.
A second problem is that liberty often clashes with other political values we consider important, such as order and equality. Consider the tradeoff between liberty and order in the upcoming FIFA World Cup and the 2028 Los Angeles Summer Olympic Games. Enhanced security and surveillance will accompany both events, including travel restrictions, expanded airport screenings, technology, extensive electronic and social media searches, restrictions on protests, and homeless encampment sweeps. Are these prudent safety measures or gross violations of fundamental liberties? Reasonable people disagree.
Another tradeoff occurs between the values of liberty and equality. As we will see, Title IX has done wonders to promote gender equity in high school and college athletics. However, it has often come at the expense of athletic departments’ freedom to choose which sports to offer.
The final issue concerning civil liberties is that the line between what is and is not permissible under the Constitution isn’t always clear. For instance, the First Amendment protects Americans’ freedom of speech, but that freedom is not absolute. Words that incite violence, threaten serious harm, are obscene, or defame another are not protected. Moreover, the government can restrict where, when, and how you exercise your right to free speech. All this opens up a lot of gray area. For instance, was Trump’s speech to supporters at the White House on January 6, 2021, protected political speech, or did he incite the violence that occurred on Capitol Hill later that day?
If civil liberties tell the government what it cannot do, civil rights specify what the government must do to ensure that people are treated equally and fairly.
Two constitutional provisions are largely responsible for extending civil rights to previously marginalized groups: the Due Process Clause and the Equal Protection Clause.
The language of the Due Process Clauses of the 5th and 14th Amendments is nearly identical, with one important exception. Both clauses state that no person can be deprived of “…life, liberty, or property, without the due process of law.” This means the government can take away your liberty, your property, and even your life, but it cannot do so arbitrarily. Due process requires the government to act within the law and guarantees a fair hearing to those accused of wrongdoing. From the ratification of the Constitution until the 14th Amendment (1868), the Courts generally held that the Due Process Clause of the 5th Amendment applied only to federal cases. The 14th Amendment was so important because it required states to abide by the principle of due process, even in local or state matters.
The second constitutional protection that has advanced civil rights is the Equal Protection Clause of the 14th Amendment. The Clause says “…nor shall any State deny to any person within its jurisdiction the equal protection of the laws.” That means governments cannot discriminate against people on arbitrary grounds, such as race or national origin.
The combination of civil liberties and civil rights in the U.S. Constitution is what makes the United States a liberal democracy. Here, “liberal” does not mean “progressive” in the modern political sense, but rather refers to the classical liberal tradition of a limited government that protects the natural rights of its citizens. In a pure democracy, the majority always wins. But in a liberal democracy, some matters are removed from democratic politics to protect individual rights. Simply put, Americans vote on some things (e.g., taxes, health care, war or peace) but not others (e.g., what to say, which god to worship, and who can or can’t vote).
Again, the interesting stuff occurs in the gray areas, where it isn’t entirely clear whether something is or is not protected by the Constitution. Consider just a few recent examples:
Is abortion a fundamental human right, or can states restrict the practice? What about same-sex marriage?
Do corporations have the same rights to freedom of speech and religion as individuals?
Do restrictive voting laws violate the civil rights of voters of color?
Can homeless individuals sleep on public property?
Can colleges consider race as a factor in admission?
Can people be fined for not having health care insurance?
Can the government force people to be vaccinated?
Can public schools or libraries ban certain books?
One final point about civil liberties and civil rights is that they’ve been unevenly applied throughout American history. It’s impossible to fully trace that history here, but we’ll unpack some of it throughout this website. For now, let’s see how civil liberties and civil rights play out in the context of the NFL’s national anthem protests.
The Game. Colin Kaepernick and the NFL National Anthem Protest. From 2012 to 2016, a string of killings of young Black men by police raised charges of systemic racism in law enforcement. In protest, San Francisco 49ers quarterback Colin Kaepernick and other NFL players knelt during the national anthem in the 2016 NFL season. Concerns about civil rights prompted the protests, but here we’ll focus more narrowly on the civil liberties questions they raised.
Were Colin Kaepernick’s actions protected by the First Amendment? Could the NFL punish him for kneeling?
The answer to both questions is “yes.”
Kaepernick’s actions illustrate the difference between the expansive rights Americans have as citizens and the more limited ones they have as employees. The First Amendment says that “Congress shall make no law... abridging the freedom of speech.” That means that the government cannot punish political speech or symbolic actions it finds objectionable. For example, the Supreme Court ruled in Texas v. Johnson (1989) that burning an American flag is symbolic speech protected by the First Amendment. As a private citizen, Kaepernick’s protest during the national anthem falls into the same category. Simply put, there is nothing the government could do to punish Kaepernick for taking a knee.
However, the NFL is a private employer, not a state actor. As such, the NFL does not have to extend the full complement of First Amendment protections to its employees. Instead, the rights of NFL players are negotiated with owners through collective bargaining agreements (a subject we will return to in a future post). This gives the NFL and the San Francisco 49ers the right to punish or fire Kaepernick if his actions hurt “the brand.”
For the record, neither the NFL nor the 49ers punished Kaepernick for kneeling during the national anthem. But despite leading the 49ers to the 2012 Super Bowl and being a dangerous dual-threat quarterback, no team signed Kaepernick after the 2016 season, and he never played another down in the NFL. He eventually filed a lawsuit alleging that NFL teams colluded to keep him out of the league, and the case settled in 2019 for an undisclosed amount. To be clear, Kaepernick’s suit was not over free speech, a case he most likely would have lost, but rather about contract law and the allegedly nefarious behavior of NFL owners.
I mentioned earlier that the really interesting stuff about civil liberties occurs in the gray areas. So, let’s journey into the gray with a fictitious story, inspired by Kaepernick, about John D., the star quarterback at North High School. I ask that you play the role of a Supreme Court justice in this tale.
North High is a public school in Anytown, U.S.A. Before the 2017 season, Head Football Coach James S. was concerned that some of his players might follow Kaepernick’s example and kneel during the national anthem. Coach S. believed that such a protest would not only divide the team but also spark a firestorm of controversy among parents and across their small town.
Acting on this concern, Coach S. presented the team with a written set of team rules to sign prior to the season, including the requirement that the team stand for the national anthem. Every player signed the contract, though some, like John D., did so reluctantly.
In the weeks leading up to the first game, John D. and five other players increasingly felt it was their duty to protest racial inequities and police violence in America. So, the players knelt during the national anthem in the season-opener against South High. Coach S. then kicked the kneeling players off the team, a decision supported by North High’s Athletic Director, Principal, and the Anytown U.S.A. School Board.
Both sides lawyered up, and the case is now before you and the eight other members of the U.S. Supreme Court. You now must consider the question: Can a public high school force student-athletes to stand for the national anthem?
The counsel for John D. begins his oral arguments by stating that public high school student-athletes enjoy broad civil liberties protections, even more so than NFL players. Unlike the NFL or the 49ers, public school coaches and athletic directors are state actors and, as such, must honor students’ rights and liberties. The attorney then cites precedent. In West Virginia State Board of Education v.Barnette (1943), the Supreme Court ruled that public schools could not force students to salute the American flag. In Tinker v. Des Moines Independent Community School District (1969), the Supreme Court concluded that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The counsel closes by arguing that kneeling during the national anthem is clearly protected symbolic political speech and, as such, any punishment of the players is unconstitutional.
The school district’s attorney counters with several arguments. First, most high school student-athletes are minors with limited rights. Second, high school sports are extracurricular activities, and because they are voluntary, the courts have routinely held that coaches and athletic departments have greater control over student-athletes’ behavior than teachers or principals do over the average student. Third, the school district's attorney points out that if John D. and the others didn’t want to stand for the national anthem, they shouldn't have signed the contract. But all of this was a mere prelude for what the attorney felt was her strongest argument.
The school district’s attorney then explains to the Court that although Coach S.’s policy did limit political speech, such a restriction was necessary to avoid a “substantial disruption” to the team and to the school. Coach S. had good reason to believe that a national anthem protest would be so divisive that it could lead to fights between players, between parents, and, heck, maybe even to threats from the townsfolk. The attorney then cited Morse v. Frederick (2007), in which the Supreme Court held that school officials may prohibit students from displaying banners promoting illegal drug use in order to avoid a “substantial disruption” and uphold school discipline. The attorney concludes that kneeling during the national anthem is not protected by the First Amendment because any reasonable person would consider the act to be “a substantial disruption” at a school-sponsored event.
If you were a Supreme Court justice, how would you rule?
I’ve observed the Supreme Court long enough to know that trying to predict how it will rule is a fool’s errand, along the lines of drafting a Kansas City Chiefs running back in fantasy football. But if I were to bet, I would wager the Court would rule in favor of John D. His actions seem to me to be symbolic political speech, to which the Court has afforded its highest protection. Moreover, his protest was peaceful, and he cannot be held responsible for how others might respond. Still, there are strong arguments on the other side, particularly the “substantial disruption” one.
For the sake of argument, let’s assume the Court rules that kneeling during the national anthem is protected speech. Now, let’s add just one more wrinkle to our hypothetical,
Following the national anthem protest at North High, some student-athletes at Trinity High School, a private Christian school across town, also took a knee during the national anthem and were then kicked off the team. Can those Trinity players cite the North case to avoid disciplinary action?
The answer is most likely no.
The main difference between North High School and Trinity High School is that North is a public school and Trinity is a private school. Private schools, like Trinity, are not required to uphold the full suite of constitutional protections for their students or employees. In a legal sense, private schools are more like the NFL than they are a public school, like North High. The public/private school contrast is clearest in the area of religion—public school teachers can’t proselytize to their students during class time, while Christian school teachers can—but it also applies to speech. At a private school, therefore, the kneeling student-athletes would have no legal basis to challenge their suspension.
Okay, here is a recap on players kneeling during the national anthem:
NFL players. Can’t be arrested or charged with a crime. Can be disciplined by their team or by the League.
Public High School Athletes. Can’t be arrested or charged with a crime. It is unlikely that they can be disciplined by their school.
Private High School Athletes. Can’t be arrested or charged with a crime. Can be disciplined by their school.
Public College Athletes. Can’t be arrested or charged with a crime. It is unlikely that they can be disciplined by their school.
Private College Athletes. Can’t be arrested or charged with a crime. Can be disciplined by their school.
The one common denominator above is that, depending on when and how you do it, you cannot be arrested or charged with a crime for exercising your right to free speech in the public square. You can, however, be disciplined or fired by an employer or private school.
Summary. Civil liberties and civil rights are different things, a distinction illustrated by two arguments we’ve all made at one time or another:
“You can’t tell me what to do!” = civil liberties
“That’s not fair?” = civil rights
Civil liberties keep the government out of our business; civil rights require the government to ensure that people are treated fairly and equally.
We examined the case of civil liberties and rights through the NFL’s national anthem protests. Concerns over civil rights violations led to the protests, but the question of whether kneeling athletes could be punished for their actions concerns civil liberties. And this case shows how muddled things can get. While no American can be sent to jail for failing to stand for the national anthem, some can be fired or suspended for their actions (e.g., NFL and private school athletes), while others likely can’t (public school athletes). There are many more interesting questions about sports that live in the gray areas of civil liberties and civil rights, cases that we’ll explore throughout this website.
