The Demise of the Right-Privilege Distinction in Constitutional Law

Authors

William W. Van Alstyne, Duke Law SchoolFollow

Document Type

Article

Publication Date

1968

Abstract

The right-privilege distinction, as it appeared in an early statement by Justice Holmes, has long hampered individuals within the public sector in protecting themselves against arbitrary governmental action. In this article Professor Van Alstyne reviews the uses and misuses to which the "privilege" concept has been put and then examines those doctrines whose flanking attacks have gradually eroded its efficacy. But none of these doctrines comes to grips with Holmes' basic idea of a "privilege" to which substantive due process is inapplicable. Applying Holmes' own jurisprudence, the author argues that the concept of "privilege" is today no longer viable, and that the size and power of the governmental role in the public sector requires substantive due process control of the state in all its capacities.

Citation

William W. Van Alstyne, The Demise of the Right-Privilege Distinction in Constitutional Law, 81 Harvard Law Review 1439-1464 (1968)