Whether the color is blue, an example I used last week, or red, as I shall use today, the question still is the same. Do States, or their political subdivisions such as counties and cities, have power, under the United States Constitution, to outlaw whatever conduct they wish under so-called police powers of the States? I use the color red today as I found studies that have determined the color red can cause some people to become angry. I will address that in a moment.
Paul Ogden advances the argument States and their subunits possess such powers. He says that, unless a matter is outside the bounds of what is permissible under the United States or a state constitution, a State, or its subunits, has the power to do what it likes. He wrote in response to the "blue shirt" blog. This is a concept of the police powers of the State that purportedly is founded in the Tenth Amendment and its conferral of powers on the States not already given to the Federal Government. Chief Justice Marshall wrote in McCulloch v. Maryland, 17 U.S. 316 (1819) of a means-ends test. In United States v. Carolene Products Co., 304 U.S. 144 (1938), Justice Douglas, writing for the Court, wrote of a rational basis test. An action of a State is constitutional so long as it does not offend specific provisions of the Federal Constitution or the constitution of the State in which it is enacted, and has some rational basis for its promulgation. In Williamson v. Lee Optical, 348 U.S. 483 (1955), rational basis was somewhat refined and given broader meaning. If the ordinance or statute could be based on a rational intention, it passes constitutional. Cases that followed Lee Optical set the burden on the party that challenges the action to negate any conceivable set of circumstances that give rational basis to the ordinance or statute, so long as the law or ordinance does not discriminate against a suspect class---usually a class distinguished by race, gender, religion.
So let us proceed with a hypothetical. The City-County Council commissions a study to determine what colors are a possible threat to public safety and public finance. A few hundred thousand dollars later, a report is delivered to the City-County Council that concludes people who wear red shirts pose a threat to that public safety and to public finance. Red is more likely to incite anger and violence. The good professors who produce the report also extrapolate from its findings and use its numbers to multiply in such a way as to show the City and County suffers losses of ten million dollars ($10,000,000.00) per year because people wear red. Also, two dozen people are killed, hundreds injured, and the City's image is damaged. The ordinance is passed.
Government does not possess such power. Justice Samuel Chase wrote in Calder v. Bull, 3 U.S. 386 (1798), there are certain things no government---Federal or State---has power to do. Alexander Hamilton, in Federalist Paper 84, Alexander Hamilton opposed the creation or adoption of a Bill of Rights for the Constitution. He said when rights are listed, those who wish to act can cite the fact a "right" was not listed as basis for action. In Griswold v. Connecticut, 381 U.S. 479 (1965), Justice Douglas, again writing for the Court, wrote "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance." The issue there was whether there is a right to privacy, in the context of whether adult use of birth control is protected by the United States Constitution. Justice Goldberg, in a concurring opinion, wrote one does not have to go so far as to write of emanations of penumbras, but simply look to the Ninth Amendment. "To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever."
Rational basis marched on after Griswold. Does it survive today? And would The Framers of the Constitution believe they had created a government that bestowed such powers on the States as those who advocate for "rational basis" would have us believe?