Attorney Paul Key
Over 20 Years of Experience

It's my right but your privilege!

February 20, 2011

By Paul Key on February 20, 2011 11:37 AM

I frequently heard growing up that driving was a "privilege" and not a "right." I still hear that distinction repeated today, most of the time, but not always, by Collin County assistant district attorneys during jury selection in driving while intoxicated or driving while license invalid cases. They argue that driving is merely a privilege because you have to be licensed in order to drive, for example, and because the government (perhaps that DA!) can take the privilege away.

The right-privilege distinction, if there ever really was one, has pretty much been abandoned, as it doesn't mean a whole lot to call one thing a right and another a privilege. Call them all "rights" or all "privileges." Pretty much any right or privilege can be curtailed or taken away under the right circumstances.

It appears to me that the distinction most often is based on the following: When someone is trying to take something away from you, he'll call it a privilege, and when you're trying to keep it from being taken, you'll call it a right.

If someone is trying to take your rights away in Collin County or anywhere in Texas, exercise your right to a lawyer. I make sure that all of my clients have rights and not mere privileges.

The following is taken from a concurring opinion from Justice Thomas and illustrates very well the arbitrariness of any purported right-privilege distinction:

At the time of Reconstruction, the terms "privileges" and "immunities" had an established meaning as synonyms for "rights." The two words, standing alone or paired together, were used interchangeably with the words "rights," "liberties," and "freedoms," and had been since the time of Blackstone. See 1 W. Blackstone, Commentaries *129 (describing the "rights and liberties" of Englishmen as "private immunities" and "civil privileges"). A number of antebellum judicial decisions used the terms in this manner. See, e.g. , Magill v. Brown , 16 F. Cas. 408, 428 (No. 8,952) (CC ED Pa. 1833) (Baldwin, J.) ("The words 'privileges and immunities' relate to the rights of persons, place or property; a privilege is a peculiar right, a private law, conceded to particular persons or places"). In addition, dictionary definitions confirm that the public shared this understanding. See, e.g. , N. Webster, An American Dictionary of the English Language 1039 (C. Goodrich & N. Porter rev. 1865) (defining "privilege" as "a right or immunity not enjoyed by others or by all" and listing among its synonyms the words "immunity," "franchise," "right," and "liberty"); id. , at 661 (defining "immunity" as "[f]reedom from an obligation" or "particular privilege"); id. , at 1140 (defining "right" as "[p]rivilege or immunity granted by authority"). 2

The fact that a particular interest was designated as a "privilege" or "immunity," rather than a "right," "liberty," or "freedom," revealed little about its substance. Blackstone, for example, used the terms "privileges" and "immunities" to describe both the inalienable rights of individuals and the positive-law rights of corporations. See 1 Commentaries, at *129 (describing "private immunities" as a " residuum of natural liberty," and "civil privileges" as those "which society has engaged to provide, in lieu of the natural liberties so given up by individuals" (footnote omitted)); id. , at *468 (stating that a corporate charter enables a corporation to "establish rules and orders" that serve as "the privileges and immunities . . . of the corporation"). Writers in this country at the time of Reconstruction followed a similar practice. See, e.g. , Racine & Mississippi R. Co. v. Farmers' Loan & Trust Co. , 49 Ill. 331, 334 (1868) (describing agreement between two railroad companies in which they agreed " 'to fully merge and consolidate the[ir] capital stock, powers, privileges, immunities and franchises' ");Hathorn v. Calef , 53 Me. 471, 483-484 (1866) (concluding that a statute did not "modify any power, privileges, or immunity, pertaining to the franchise of any corporation"). The nature of a privilege or immunity thus varied depending on the person, group, or entity to whom those rights were assigned. See Lash, The Origins of the Privileges or Immunities Clause, Part I: "Privileges and Immunities" as an Antebellum Term of Art, 98 Geo. L. J. 1241, 1256-1257 (2010) (surveying antebellum usages of these terms).