There are at least two ways of distinguishing between "privileges" and "rights" in the context of American constitutional law and history, and careful analysis does not confound the two. The text of the Constitution refers to both privileges and rights, and uses "privileges" as a term of art denoting a class of rights that may be invoked defensively, to excuse one from a legal restraint or obligation. In another usage, privileges have both an inferior status to and a less permanent existence than rights, being subject to revocation by the government or to the imposition of conditions on their exercise. There is no foundation in the Constitution for the latter distinction.
In the Constitution, a privilege is one kind of right. The word privilege appears four times. The first appearance is in the privilege from arrest in civil cases enjoyed by members of Congress during congressional sessions. The second appearance is the guarantee of the "privilege of the writ of habeas corpus, " yet that "privilege" has at least as great a degree of status and permanence as any right in the Constitution. The other appearances are in the privileges and immunities clauses of Article IV and of the fourteenth amendment : the citizens of each state are entitled to the privileges and immunities of citizens in the several states; and no state may abridge the privileges or immunities of citizens of the United States.
Privileges are associated with, but are distinct from, immunities. A privilege is an exemption from a legal restraint or duty (such as the duty to testify in court), while an immunity is an exemption from liability (usually civil liability). Thus members of Congress are privileged from arrest and immune from having to answer in another place for their speech or debate. The way in which the word is used in the Constitution suggests that a privilege is a kind of right distinguished not by revocability or conditionability but by the fact that it cannot be asserted until some authority has taken action against one. One can exercise the right of religious liberty or the right of peaceable assembly on one's own initiative; but one cannot demand that the state show cause for holding one in jail until one is actually held, and one cannot refuse to answer questions until questions are asked. A constitutional privilege is defensive, but it may be asserted as of right. Thus there is not necessarily a diminution of the right against self-incrimination when that right is called a privilege.
The word "right," standing alone, along with the word "freedom" and the phrase "right of the people," is used in the Constitution to designate a right that one may assert affirmatively and which the government is precluded from invading. Among these are natural rights, which antedate the Constitution, such as the freedom of speech, the right of the people to keep and bear arms, and the right of the people to be secure in their persons, houses, papers, and effects. Another category of constitutional rights comprises procedural rights, both civil and criminal.
Precise usage of constitutional terms is hampered by an unfortunate rhetorical use of the terms "right" and "privilege." Even james madison seems, on occasion, to have used "privilege" to mean a special boon conferred by authority and subject to revocation at the pleasure of the grantor. Subsequently, because the power to revoke a right includes the power to impose conditions upon its exercise, "privilege" came, in certain rhetorical circumstances, to stand for rights that were conditionable.
This rhetorical use of "right" and "privilege" was introduced into American public law by oliver wendell holmes. Writing as a justice of the Massachusetts Supreme Judicial Court, Holmes commented in 1892 on the freedom of speech of public employees : "The petitioner may have the constitutional right to talk politics, but he has no constitutional right to be a policeman." Public employment was, for Holmes, not a right but a privilege. In goldberg v. kelly (1970) the Supreme Court stated that it had abandoned the right-privilege distinction. welfare benefits might be a privilege, in the sense that the state could constitutionally abolish a welfare program, but a particular beneficiary's benefits could not be terminated except by procedures that satisfied the requirements of procedural due process.
Similarly, the federal courts today interpret the first amendment to protect public employees against at least some restrictions on their constitutional freedoms. Government, the Court has said, "may not deny a benefit to a person because he exercises a Constitutional right." Yet rights—even First Amendment rights—are defined more narrowly for public employees than they are for others, as the validation of the hatch act demonstrated. (See unconstitutional conditions.)
In recent years the Court has erected new barriers to the invocation of the right to procedural due process, requiring that a claimant establish deprivation of a liberty or property interest before due process even becomes an issue and paying considerable deference to state law in defining both types of interest. In refusing to characterize some important interests as liberty or property, the Court has relegated those interests to an inferior status. Thus the Holmesian right-privilege distinction, once abandoned, has been welcomed home in new clothes.
Dennis J. Mahoney
Kenneth L. Karst
Monaghan, Henry P. 1977 Of "Liberty" and "Property." Cornell Law Review 62:401–444.
Van Alstyne, William W. 1968 The Demise of the Right-Privilege Distinction in Constitutional Law. Harvard Law Review 81:1439–1464.
——1977 Cracks in "The New Property." Cornell Law Review 62:445–493.