Right v. Privilege Distinction

The distinction between rights and privileges was not well established during the founding era, when rights were often regarded as conferred by monarchs rather than by nature or the social contract, and the language reflected this, even as the natural rights philosophy of John Locke and others was becoming ascendant. However, as political philosophers and legal scholars thought through the implications of their ideas, they came to realize that they needed to make a distinction among legal claims based on the sources of those claims.

One of the early political philosophers to develop the distinction was Algernon Sidney:

The Israelites, Spartans, Romans and others, who thus framed their governments according to their own will, did it not by any peculiar privilege, but by a universal right conferred upon them by God and nature.

Although he did not make it as explicit as he could have, Locke laid the basis for two sources of rights: nature and the social contract. He identified three primary rights: life, liberty, and property, but left open the impression that the source for all of them was nature, when some further thought reveals that if property is title and not just possession, that survives the loss of possession, then it only makes sense in the context of a society, which suggests the source is the social contract.

Some of the rights not discussed by Locke are due process and the right to a presumption of nonauthority implicit in the common law prerogative writs, mainly of habeas corpus, quo warranto, mandamus, prohibito, procedendo, and certiorari, as recognized in the Ninth Amendment. Again, these rights only make sense in the context of a society or its government, which suggests their source is either the social contract or the constitution of government, or a combination thereof.

Some claims called ‘‘rights’’ only make sense in the context of government, such as the Citizenship rights of voting and holding public office. Others, such as the rights of denizenship, of remaining at and returning to one’s place of residence, can make sense in the context of a society in exclusive dominion of a territory, which need not have a government.

That leaves legal claims that arise from private contracts and from statutes or other acts of government officials. A monopoly on the use of a business name is clearly not one that is a ‘‘right’’ in the same sense as life or liberty. Thomas Jefferson recognized this in the Declaration of Independence when he stated that the rights of life, liberty, and the pursuit of happiness, are ‘‘inalienable,’’ with a more fundamental status than holding public office or a license to hunt on public land. To distinguish between rights proper, which can be disabled or deprived only by due process, and claims that are conferred by government and may be withdrawn at any time by government, a different term was needed, and the word usually chosen was ‘‘privilege.’’

This distinction can be seen in the language of the Fourteenth Amendment, which uses the terms ‘‘privileges and immunities.’’ By ancient usage, an ‘‘immunity’’ was a right against the positive action of government, and by the time the amendment was drafted in 1868, it was understood that all of the ‘‘rights’’ recognized by the Constitution and Bill of Rights were actually claims against the positive action of government that could not be withdrawn, and were therefore ‘‘immunities.’’ But the framers of the Fourteenth Amendment also wanted to include claims that were conferred by government, that is, privileges.

Since then, however, there has been a steady movement to reduce rights, or immunities, to privileges, and to restrict or withdraw them. It was once considered a matter of common right to engage in an occupation or profession of one’s choice, but today many professions, such as the practice of medicine or law, are licensed, although the way the practice of law is ‘‘licensed’’ is handled more like a combination of a custom and a private contract. People used to regard themselves as being able, as a matter of common right, to erect a house, or improve one, on his own land. Today, one typically has to get a permit and have the work inspected by a government official.

The right–privilege distinction has long adversely impacted individuals within the public sector in protecting themselves against arbitrary governmental action. Justice Oliver Wendell Holmes, Jr., declared the doctrine of unconstitutional conditions for a ‘‘privilege’’ to which substantive due process is inapplicable. In 1892, Justice Holmes, speaking for the Massachusetts Supreme Judicial Court in McAuliffe v. Mayor of New Bedford (1892), dismissed the petition of a policeman who had been fired for violating a regulation which restricted his political activities:

The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.... There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him.

More recently, in 1954, the Supreme Court upheld the suspension of a physician’s license. The physician had been convicted of contempt of Congress for declining to produce certain papers for a committee of the House of Representatives. His license was suspended on the basis of this conviction, without a showing that his actions related to his competence or professional integrity as a physician, and the Court deferred to the police power of the state:

The practice of medicine in New York is lawfully prohibited by the state except upon the conditions it imposes. Such practice is a privilege granted by the State under its substantially plenary power to fix the terms of admission.

A person may sometimes successfully rely on an independent right to procedural due process to avoid some of the harsh consequences of the right-privilege distinction. One may have no right to talk politics while in the public service, but still he may not be discharged without an adequate hearing which may fairly determine whether in fact he had been talking politics.

Under the equal protection clause, however, it seemingly makes no difference that the threatened interest is a privilege rather than a right. Even a privilege, benefit, opportunity, or public advantage may not be granted to some but withheld from others where the basis of classification and difference in treatment is arbitrary.

A response to this tendency to convert immunities into privileges has been the ‘‘doctrine of unconstitutional conditions,’’ that whatever an express constitutional provision forbids government to do directly forbids government to do indirectly, such as by setting conditions on the conferring of some privilege that requires a person to relinquish an immunity. By this doctrine it would be unconstitutional to require a person to relinquish his right against warrantless search of his lodgings as a condition for receiving public welfare, or to relinquish his right to political speech while off-duty as a condition for public employment, or to relinquish his right against selfincrimination as a condition for employment as a law enforcement officer. At the very least, this principle, when combined with a right to procedural due process, would entitle a person facing the loss of a privilege to a hearing to decide whether the unconstitutional conditions principle has been violated.

Under the equal protection clause, it seemingly makes no difference that the threatened interest is a privilege rather than a right. Even a privilege, benefit, opportunity, or public advantage may not be granted to some but withheld from others where the basis of classification and difference in treatment is arbitrary. Justice Clark stated in Wieman v. Updegraff (1952), in striking down a state loyalty oath read as containing no requirement of scienter:

We need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.

The relation between rights and privileges has played out in voting, which was originally established not as a right but as a privilege. There might be a right not to be taxed without representation in the taxing body, but that did not require that one personally have the right to vote in elections to that body. It was considered sufficient for dependents, such as children, women, wage workers, and slaves, to be represented in voting by their father, husband, employer, or master. However, the Fifteenth Amendment, in establishing a right not to be denied the ‘‘right’’ to vote on the basis of ‘‘race, color, or previous condition of servitude, confused the distinction by terming voting a ‘‘right’’ rather than a ‘‘privilege,’’ even while indicating it could be withheld on other grounds than those it prohibited. We have to recognize that in using the word ‘‘right’’ the Fifteenth Amendment did not make it one. It only prohibited the withholding of the privilege on certain grounds, thereby creating a right not to have it withheld on those grounds. Similarly, the Nineteenth Amendment established a right not to be denied the privilege of voting on the basis of sex, the Twenty-Fourth Amendment established a right not to be denied the privilege of voting on the basis of nonpayment of a tax, and the Twenty-Sixth Amendment established a right not to be denied the privilege of voting on the basis of being under the age of eighteen. The fact that the term ‘‘right’’ was used instead of ‘‘privilege’’ in each of those amendments indicates, however, that one cannot rely on the terms to be used carefully in legal discourse.

Conflation of the terms ‘‘right’’ and ‘‘privilege’’ as synonymous has a long history in English law, in which originally all ‘‘rights’’ were considered privileges granted by the sovereign, that is, the monarch. With independence of the American colonies, however, making the people the sovereign, and their adoption of the Constitution, came acceptance in law that the rights, or more precisely, immunities, recognized and protected in the Constitution precede the Constitution, and are either natural, preceding society and government, or arise out of the social contract that created the society. Nevertheless, the legacy of monarchy lingers in the language sometimes used by legislators and judges.

Most attempts to reduce immunities to privileges, and then often to withdraw them, are done through exercise of a power to regulate or tax, or at the state level, by exercise of the state ‘‘police powers.’’ Thus, while U.S. and state constitutions might recognize a ‘‘right to keep and bear arms,’’ their legislatures have tried to make it a privilege to acquire or convey title or possession to them. Congress in 1937 adopted legislation that imposed a $200 tax on certain types of firearms, and made it illegal to possess a firearm on which a tax had not been paid, and then delegated the power to executive officials to effectively prohibit the weapons by refusing to accept payment of the tax. This was done in defiance of the ancient principle that a right may not be taxed in a way that imposes an undue burden on its exercise. Congress has since prohibited acquisition or possession of similar weapons manufactured after 1985, under the alleged authority of the Commerce and necessary and proper clauses, on the argument that, following the precedent in Wickard v. Filburn (1942), they have a ‘‘substantial effect on interstate commerce.’’ Some states have argued that, since militia commanders may direct the use or nonuse of weapons by persons in called up militia status, they have the power to prohibit the acquisition or possession of any weapons even for persons not on militia duty, and to not recognize as militia those not called up by officials with the authority to impose penalties for failing to respond to a call-up. This is in conflict, however, with the ancient principle that the authority for militia, that is, defense activity, is not officials or the law, but a threat to public safety and the constitution of the state or United States, and every person aware of such a threat has not only the right but duty to defend against it, alone or in concert with others, regardless of whether officials concur or cooperate. Indeed, the concept contemplates that the officials may become the threat to which a defensive response is required.

JON ROLAND

References and Further Reading

• Barsky v. Board of Regents, 347 U.S. 442, 451 (1954). Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 185 (1961) (concurring opinion).
• Murdock v. Pennsylvania, 319 U.S. 105 (1943). Commentary by Jon Roland. https://www.constitution.org/ussc/319-105jr.htm.
• Sidney, Algernon. Discourses Concerning Government, Chapter 1, Section 16 (1698). https://www.constitution.org/as/dcg_116.htm.
• Van Alstyne, William W., The Demise of the Right–Privilege Distinction in Constitutional Law, Harvard Law Review 81 (1967): 1439.

Cases and Statutes Cited

• McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892)
• Wickard v. Filburn, 317 U.S. 111 (1942)
• Wieman v. Updegraff, 344 U.S. 183, 192 (1952)

See also Due Process