I like the color blue. For several years when I worked at Purdue University, then Northwestern University School of Law, then again at Purdue in those schools' libraries, I usually wore any of half-a-dozen powder-blue Oxford shirts I owned. The way in which the color blends with blue jeans never has been a consideration, although I like the blue there, too.
If in the next weeks the City-County Council of Indianapolis and Marion County were to pass an ordinance, and Indy's intrepid Mayor Greg Ballard were to sign it, that banned blue shirts in all public places, would that be a constitutional use of the local government's powers? Let me add, in this hypothetical, the City's citation to a study conducted and produced on the City's dime that establishes certain health risks from people who are exposed to the color blue in their environment. Also, that the Blue Ordinance would have a definition of "blue" derived from an evaluation of light frequencies that bounce off of a surface of blue color. For purposes of our discussion, that would quell any argument as to the Blue Ordinance being overly vague.
The Blue Ordinance presumably would be brought under the so-called police powers of the City. The police power is "A state's Tenth Amendment right, subject to due-process and other limitations, to establish and enforce laws protecting the public's health, safety, and general welfare, or to delegate this right to local governments." Black's Law Dictionary, Pocket ed., 1996, p. 486. I would correct that scholarly source on one point. States do not have "rights." The Tenth Amendment does not provide a state with rights. The Tenth reads: "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 is no mention of "rights" of States. (I also find interesting the use of a capital letter for "State" but not for "people" in the Tenth.) In contrast, the Ninth Amendment reads: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." There is no mention of "rights" retained by the States.
In a concept of the social contract---a fictional concept of which John Locke was one of the first writers in which a person somehow has agreed to allow the government to exercise its rule over him or her---a person has rights, as a creature in nature. The person surrenders his (at the time in a male-dominated society there was little consideration given to "her") liberty in exchange for the security and protection of the government. Hobbes wrote of human existence, in nature, as a condition of a war of all against all. A trade-off occurs. Government, in our scheme of things---and as Michelle Bachman bragged a couple of days ago in Egypt---is by consent of the governed. The Declaration of Independence, authorship of which ironically is credited to a slaveholder, Thomas Jefferson, gives support to this notion: "WE hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness---That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed..." Nowhere is mention made of a State possessed of rights.
Some argue the Framers of the Constitution conceived as States as able to exercise "plenary" powers. "Plenary," again by Black's, is defined as "Full; complete; entire." Supra at 485. As used by the Framers, the proponents of this view argue, this meant powers to enact laws to regulate crimes such as robbery, murder and other matters.
Tomorrow: a visit to "police powers" of the States.