The Demise of the Right-Privilege Distinction in Constitutional Law

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\u27 basic idea of a privilege to which substantive due process is inapplicable. Applying Holmes\u27 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