The right to pursue any lawful trade or business
“It is undoubtedly true that it is the right of every citizen of the United States to pursue any lawful trade or business, under such restrictions as are imposed upon all persons of the same age, sex and condition.” Crowley v. Christensen: 137 U.S. 86, at 89 (1890).
“ . . . In holding that the statute violated the Privileges and Immunities Clause, the Court, in Ward v. Maryland, 12 Wall. 418 (1871), observed that ‘the clause plainly and unmistakably secures and protects the right of a citizen of one State to pass into any other State of the Union for the purpose of engaging in lawful commerce, trade, or business without molestation.’ Id., at 430. Ward thus recognized that a resident of one State is constitutionally entitled to travel to another State for purposes of employment free from discriminatory restrictions in favor of state residents imposed by the other State. . . . .
Although this Court has not always equated state residency with state citizenship, compare Travis v. Yale & Towne Mfg. Co., 252 U.S. 60, 78-79 (1920), and Blake v. McClung, 172 U.S. 239, 246-247 (1898), with South R. Co. v. Mayfield, 340 U.S. 1, 3-4 (1950); Douglas v. New Haven R. Co., 279 U.S. 377, 386-387 (1929); and La Tourette v. McMaster, 248 U.S. 465, 469-470 (1919), it is now established that the terms ‘citizen’ and ‘resident’ are ‘essentially interchangeable,’ Austin v. New Hampshire, 420 U.S. 656, 662, note 8 (1975), for purposes of analysis of most cases under the Privileges and Immunities Clause of Art. IV, § 2. See Toomer v. Witsell, 334 U.S. 385, 397 (1948). Hicklin v. Orbeck: 437 U.S. 518, at 525, 534 (1978). [Footnote 1], [Footnote 4].
“For the pursuit of any lawful trade or business, the law imposes similar conditions. Regulations respecting them are almost infinite, varying with the nature of the business. Some occupations by the noise made in their pursuit, some by the odors they engender and some by the dangers accompanying them, require regulations as to the locality in which they shall be conducted. Some by the dangerous character of the articles used, manufactured or sold require, also, special qualifications in the parties permitted to use, manufacture or sell them. All this is but common knowledge, and would hardly be mentioned were it not for the position often taken, and vehemently pressed, that there is something wrong in principle and objectionable in similar restrictions when applied to the business of selling by retail, in small quantities, spirituous and intoxicating liquors. It is urged that, as the liquors are used as a beverage, and the injury following them, if taken in excess, is voluntarily inflicted and is confined to the party offending, their sale should be without restrictions, the contention being that what a man shall drink, equally with what he shall eat, is not properly matter for legislation.
There is in this position an assumption of a fact which does not exist, that when the liquors are taken in excess the injuries are confined to the party offending. The injury, it is true, first falls upon him in his health, which the habit undermines; in his morals, which it weakens; and in the self-abasement which it creates. But, as it leads to neglect of business and waste of property and general demoralization, it affects those who are immediately connected with and dependent upon him. By the general concurrence of opinion of every civilized and Christian community, there are few sources of crime and misery to society equal to the dram shop, where intoxicating liquors, in small quantities, to be drunk at the time, are sold indiscriminately to all parties applying. The statistics of every State show a greater amount of crime and misery attributable to the use of ardent spirits obtained at these retail liquor saloons than to any other source. The sale of such liquors in this way has therefore been, at all times, by the courts of every State, considered as the proper subject of legislative regulation. Not only may a license be exacted from the keeper of the saloon before a glass of his liquors can be thus disposed of, but restrictions may be imposed as to the class of persons to whom they may be sold, and the hours of the day and days of the week on which the saloons may be opened. Their sale in that form may be absolutely prohibited. It is a question of public expediency and public morality, and not of federal law. The police power of the State is fully competent to regulate the business—to mitigate its evils or to suppress it entirely. There is no inherent right in a citizen to thus sell intoxicating liquors by retail; it is not a privilege of a citizen of the State or of a citizen of the United States.” Crowley v. Christensen: 137 U.S. 86, at 90 thru 91 (1890).
1. A citizen of the United States as well as a citizen of a State were distinct before the adoption of the Fourteenth Amendment. However, in the Slaughterhouse Cases, the Supreme Court of the United States determined that a citizen of the United States was separate and distinct from a citizen of a State:
“Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respective are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause (Section 1, Clause 2 of the Fourteenth Amendment) under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.” Slaugherhouse Cases: 83 U.S. (16 Wall.) 36, at 74 (1873). [Footnote 2]
“In the Slaughter-house cases, 16 Wall. 36, the subject of the privileges or immunities of citizens of the United States, as distinguished from those of a particular State, was treated by Mr. Justice Miller in delivering the opinion of the court. He stated . . . that it was only privileges and immunities of the citizen of the United States that were placed by the [Fourteenth] amendment under the protection of the Federal Constitution, and that the privileges and immunities of a citizen of a State, whatever they might be, were not intended to have any additional protection by the paragraph in question, but they must rest for their security and protection where they have heretofore rested.” Maxwell v. Dow: 176 U.S. 581, at 587 (1900).
“. . . It is, then, to the Fourteenth Amendment that the advocates of the congressional act must resort to find authority for its enactment, and to the first section of that amendment, which is as follows: ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’
In the first clause of this section, declaring who are citizens of the United States, there is nothing which touches the subject under consideration. The second clause, declaring that ‘no State shall make or enforce any law which will abridge the privileges or immunities of citizens of the United States,’ is limited, according to the decision of this court in Slaughter-House Cases, to such privileges and immunities as belong to citizens of the United States, as distinguished from those of citizens of the State.” Neal v. State of Delaware: 103 U.S. 370, at 406 (1880). [Footnote 3]
“§ 3151. Establishment and purpose; acceptance of Wagner-Peyser Act.
The Delaware State Employment Service is continued under the jurisdiction and as a part of the Department of Labor. The Department, in the conduct of such Service, shall establish and maintain free public employment offices in such number and in such places as are necessary for the proper administration of this part and for the purposes of performing such functions as are within the purview of the act of Congress entitled "An Act to provide for the establishment of a national employment system and for cooperation with the states in the promotion of such system and for other purposes," approved June 6, 1933, 48 Stat. 113, hereinafter referred to as the "Wagner-Peyser Act" [29 U.S.C. § 49 et seq.]. The provisions of such act of Congress are accepted by this State, and the Department of Labor is designated and constituted the agency of this State for the purposes of such act.
41 Del. Laws, c. 258, § 12; 45 Del. Laws, c. 267, § 11; 19 Del. C. 1953, § 3151; 53 Del. Laws, c. 232, § 1; 57 Del. Laws, c. 669, § 4G.;
§ 3153(3). General functions and purposes.
The Department, in conducting the employment service, shall promote and develop an employment office or system of employment offices, in order to provide prior opportunity of employment to citizens of Delaware and of the United States, except when such are unavailable and not qualified.
36 Del. Laws, c. 108, § 1; 40 Del. Laws, c. 109, § 5; Code 1935, § 2616; 19 Del. C. 1953, § 3153; 57 Del. Laws, c. 669, § 4G; 58 Del. Laws, c. 522, § 2.;”
Delaware Statutes Annoted; Title 19, Chapter 31, Sections 3151 and 3153(b).
2. Privileges and immunities of citizen of a State are located in the constitution and laws of an individual State:
“. . . Whatever may be the scope of section 2 of article IV — and we need not, in this case enter upon a consideration of the general question — the Constitution of the United States does not make the privileges and immunities enjoyed by the citizens of one State under the constitution and laws of that State, the measure of the privileges and immunities to be enjoyed, as of right, by a citizen of another State under its constitution and laws.” McKane v. Durston: 153 U.S. 684, at 687 (1894).
Note: However, a citizen of a State, who is not a citizen of the United States, is recognized at Article IV, Section 2, Clause 1 of the Constitution of the United States of America.
3. In every State of the Union, since the ratification of the Fourteenth Amendment, there are now two state citizens. One state citizen is a citizen of the United States, under Section 1, Clause 1 of the Fourteenth Amendment. The other state citizen is not a citizen of the United States. The Supreme Court, in Neal v. State of Delaware, is referring to citizens of a State who are not citizens of the United States. This is also shown in the following case of the Supreme Court of the United States:
“The act was considered in Johnson v. United States, 160 U.S. 546, and we there held that a person who was not a citizen of the United States at the time of an alleged appropriation of his property by a tribe of Indians was not entitled to maintain an action in the Court of Claims under the act in question. There was not in that case, however, any assertion that the claimant was a citizen of a State as distinguished from a citizen of the United States. . . . [U]ndoubtedly in a purely technical and abstract sense citizenship of one of the States may not include citizenship of the United States . . . Unquestionably, in the general and common acceptation, a citizen of the State is considered as synonymous with citizen of the United States, and the one is therefore treated as expressive of the other. This flows from the fact that the one is normally and usually the other, and where such is not the case, it is purely exceptional and uncommon.” United States v. Northwestern Express, Stage & Transportation Company: 164 U.S. 686, 688 (1897).
4. Article IV, Section 2, Clause 1 of the Constitution of the United States of America was modified by Section 1, Clause 2 of the Fourteenth Amendment:
Refer to: About Article IV, Section 2, Clause 1 of the Constitution of the United States of America.
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