John Marshall Harlan II

“ We cannot agree that the constitutional privilege is meaningfully waived merely because those 'inherently suspect of criminal activities' have been commanded either to cease wagering or to provide information incriminating to themselves, and have ultimately elected to do neither.
The Court held in both Kahriger and Lewis that the registration and occupational tax requirements are entirely prospective in their application, and that the constitutional privilege, since it offers protection only as to past and present acts, is accordingly unavailable. ”

“ The hazards of incrimination created by §§ 4411 and 4412 as to future acts are not trifling or imaginary. Prospective registrants can reasonably expect that registration and payment of the occupational tax will significantly enhance the likelihood of their prosecution for future acts, and that it will readily provide evidence which will facilitate their convictions. Indeed, they can reasonably fear that registration, and acquisition of a wagering tax stamp, may serve as decisive evidence that they have in fact subsequently violated state gambling prohibitions. ”

“ We would be required not merely to strike out words, but to insert words that are not now in the statute. Here, as in the analogous circumstances of United States v. Reese, 92 U.S. 214, 23 L.Ed. 563, 'This would, to some extent, substitute the judicial for the legislative department of the government. * * * To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of duty.' 92 U.S., at 221.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105) . ”

“ Further, the acquisition of a federal gambling tax stamp, requiring as it does the declaration of a present intent to commence gambling activities, obliges even a prospective gambler to accuse himself of conspiracy to violate either state gambling prohibitions, or federal laws forbidding the use of interstate facilities for gambling purposes. ”

“ Substantial hazards of incrimination as to past or present acts plainly may stem from the requirements to register and to pay the occupational tax. See generally McKee, The Fifth Amendment and the Federal Gambling Tax, 5 Duke B.J. 86. In the first place, satisfaction of those requirements increases the likelihood that any past or present gambling offenses will be discovered and successfully prosecuted. ”

“ Baum, 230 La. 247, 88 So.2d 209.↑ One State has gone a step further to facilitate the enforcement of its gambling prohibitions through the federal wagering tax. Illinois requires each holder of a wagering tax stamp to register with the clerk of the county in which he resides or conducts any business, and imposes fines and imprisonment upon those who do not. ”

“ It imposes criminal penalties upon any person who possesses, keeps or maintains premises in which policy playing occurs, or lotteries are conducted, and upon any person who becomes the custodian of books, property, appliances, or apparatus employed for wagering. ”

“ Even Nevada, which permits many forms of gambling, retains criminal penalties upon lotteries and certain other wagering activities taxable under these statutes. Nev.Rev.Stat. §§ 293.603, 465.010 (1957) .
Connecticut, in which petitioner allegedly conducted his activities, has adopted a variety of measures for the punishment of gambling and wagering. It punishes ' (a) ny person, whether as principal, agent or servant, who owns, possesses, keeps, manages, maintains or occupies' premises employed for purposes of wagering or pool selling. ”

“ We are, in any event, bid to view the constitutional commands as 'organic living institutions' whose significance is 'vital not formal.' Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 695, 58 L.Ed. ”

“ Third, the requirements at issue in Shapiro were imposed in 'an essentially non-criminal and regulatory area of inquiry' while those here are directed at a 'selective group inherently suspect of criminal activities.' Cf. Albertson v. SACB, 382 U.S. 70, 79, 86 S.Ct. 194, 199, 15 L.Ed.2d 165. The United States' principal interest is evidently the collection of revenue and not the punishment of gamblers, see United States v. ”