Board Games,Textualism, and the South Carolina Anti-Gambling Statute:

As both a Legislation professor and board game player, I am intrigued by the South Carolina anti-gambling statute discussed in Paul Cassell's recent post. The statute bans the playing of "any game with cards or dice" in a wide variety of locations, including "any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open place."

A strict textualist reading of the statute suggests that South Carolinians are forbidden to play board games such as Monopoly and Risk in the listed locations. After all, these games have both cards and dice. Dungeons and Dragons is also apparently forbidden, since it has many different kinds of dice, ranging from 4-sided to 20-sided. No more playing Monopoly or D&D in your barn, stable, kitchen, or outhouse in South Carolina!

This textualist reading is reinforced by the statute's list of exceptions to the ban, which includes "the games of billiards, bowls, backgammon, chess, draughts, or whist when there is no betting on any such game." Notice that Monopoly, Risk, Dungeons and Dragons, and so on, are not on the list of exceptions. That strongly suggests that they come within the terms of the general ban. Lawyers call this the rule of "expressio unius est exclusio alterius" (if something is not on a statutory list, that suggests it was deliberately excluded from it).

Of course, a purpose-based interpretation might suggest that the legislators simply didn't have these games in mind, and were instead focused on banning games that typically involve gambling. Not many people place bets on Monopoly and Risk. That possibility, however, is undermined by the fact that the banned games are forbidden even if no gambling is involved. The games on the list of exceptions are permitted so long as "there is no betting on any such game." The state legislature could have adopted the same relatively permissive rule for all board games - allowing people to play them so long as they don't do any betting. But South Carolina's legislative solons apparently rejected this approach.

The bottom line: This South Carolina statute is either an example of ridiculous puritanism run amok or an example of extremely poor drafting. It's also possible that there are some complex public choice machinations involved (e.g. - manufacturers of the exempt games lobbied for the statute so that South Carolinians would be incentivized to buy those games rather than those that are now banned).

UPDATE: This article suggests that the law in question dates back to 1802, a time when there were far fewer dice and card board games on the market than today. However, the state legislature has revised the law on various occasions since then, and hasn't changed the ridiculous wording. Indeed, the article indicates that the state legislature defeated an effort to liberalize the law just last year. Thus, it seems that today's South Carolina legislators (or at least a majority of them), not just the benighted ones of 1802, are satisfied with the statute's wording.

The article also notes that the state attorney general interprets the law as banning only games where "chance" plays a larger role than "skill." That isn't as comforting as you might think. It can easily be argued that chance matters more than skill in Monopoly, for example; the outcome of a game is often determined by which player managed to land on certain key properties first, which is in turn determined by dice rolls. Games of Risk between mediocre players are also often decided by chance dice rolls. The same can be said for many common dice-based boardgames where chance plays a large role (e.g. - Parcheesi, Life, etc.).

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