The Demise of the Right-Privilege Distinction in Constitutional Law
William W. Van Alstyne
Duke University School of Law; William & Mary Law School
Harvard Law Review, Vol. 81, p. 1439, 1968
William & Mary Law School Research Paper No. 09-136
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.
Number of Pages in PDF File: 27
Keywords: right-privilege distinction, public employee, due processAccepted Paper Series
Date posted: September 17, 2011 ; Last revised: October 6, 2011
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