# What's the legal difference between a privilege and a right? **URL:** \ **Category:** Great Debates\ **Created:** [May 20, 2005, 7:19pm UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783 "2005-05-20T19:19:09Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![rfgdxm](https://avatars.discourse-cdn.com/v4/letter/r/c0e974/32.png) [@rfgdxm](https://boards.straightdope.com/u/rfgdxm)\ **Post date:** [May 21, 2005, 1:06am UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/21 "2005-05-21T01:06:07Z")
> [@commasense](#): > > Sorry, but the fact that something was unconventional doesn’t prove to me that the founding fathers, a notoriously freethinking bunch, would have found it unacceptable. The fact that there were no laws permitting SSM is irrelevant, since I was asking about your claim that the FFs would have opposed it, not what might or might not have passed a legislature of the time. I certainly haven’t seen cites where they supported SSM. People don’t ordinarily go out of there way to list all the laws they support. If they did support SSM, then for some reason they sure kept quiet about it. Of course that reason could have been political expediency. Little point in losing political supporters by advocating laws you know have no chance of passing. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [May 21, 2005, 1:08am UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/22 "2005-05-21T01:08:58Z")
> [@Random](#): > > I suspect that this might be an equal protection problem Lousy uppity Tuesday-borns, forcing their sick views down people’s throats… ---
**Author:** ![cainxinth](https://avatars.discourse-cdn.com/v4/letter/c/7bcc69/32.png) [@cainxinth](https://boards.straightdope.com/u/cainxinth)\ **Post date:** [May 21, 2005, 1:42am UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/23 "2005-05-21T01:42:55Z")
Marrige is a right. In America all rights derive from the Constitution. The constitution grants Congress the power to make laws in certain narrow areas and reserves all other legislative power to the states. Both the federal and state governments are constrained to act with due process of law by the 5th and 14th Amendments respectively. Therefore, when a state or the federal government grants something that can only be revoked with cause you have a constitutionally protected right to it under the due process clauses. Furthermore, the lawmakers can’t just tack on exculpatory language (i.e. “this grant can be revoked by Congress for any reason without notice”). The classic example is social welfare laws, but automobile or marriage licenses fit the same mold. So, once the state or fed gov makes a law providing welfare checks for the needy, the license to drive or get married you have a right to them, and if revoked without cause, notice, or the opportunity to be heard you can go to court to protect that right. Privileges are something else entirely; a special status conferred for a particular reason. For example a conversation between a doctor/ lawyer and a patient/ client is considered privileged because it is legally protected from discovery. ---
**Author:** ![NillyWilly](https://avatars.discourse-cdn.com/v4/letter/n/3da27b/32.png) [@NillyWilly](https://boards.straightdope.com/u/NillyWilly)\ **Post date:** [May 21, 2005, 3:12am UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/24 "2005-05-21T03:12:22Z")
> [@anson2995](#): > > Isn’t it always just a matter of semantics? I don’t believe that there is any legal distinction under US law. Posters to this thread have said that “rights are something that can’t be recoked,” but every single example they have listed are things than can be limited and/or prohibited under the law. I think the distinction that’s missed is that a right can be limited as regards and individual but not revoked for all. A privelege, theoretically could be revoked for everyone. You have a right to vote, your right to vote can be limited as a consequence of your actions. Ther right of everyone to vote cannot be revoked without a revolution. You have a privelege to drive. Your privelege can be restricted as a consequence of your actions. But, everyone’s privelege can be restricted even in the absence of malfeasance. ---
**Author:** ![Askia](https://avatars.discourse-cdn.com/v4/letter/a/96bed5/32.png) [@Askia](https://boards.straightdope.com/u/Askia)\ **Post date:** [May 21, 2005, 3:17am UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/25 "2005-05-21T03:17:53Z")
> [@Bryan Ekers](#): > > Lousy uppity Tuesday-borns, forcing their sick views down people’s throats… Bwah ha ha ha ha! ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 21, 2005, 3:58am UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/26 "2005-05-21T03:58:52Z")
A guy named [Hohfeld](http://www.hku.hk/philodep/courses/law/HohfeldRights.htm) wrote about rights and privileges around 1919. [Here](http://legaltheorylexicon.blogspot.com/2004_05_01_legaltheorylexicon_archive.html#108412598575522388) [are](http://www.ipfw.edu/phil/faculty/Butler/h.r.hohfeld.PDF)(pdf) [some](http://plato.stanford.edu/entries/legal-rights/) [discussions (pdf)](http://www.csc.ncsu.edu/faculty/mpsingh/papers/columns/aow-2-2-98.pdf) One more [http://www.saf.org/LawReviews/Amar1.html](http://www.saf.org/LawReviews/Amar1.html) ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 21, 2005, 4:00am UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/27 "2005-05-21T04:00:17Z")
> [@rfgdxm](#): > > My cite would be the absence of any laws in the late 1800s in the US that allowed gay marriage anywhere. And the absence of numerous FFs being quoted as saying gay marriage should be allowed. Back then it was thought common sense that marriage couldn’t be between 2 people of the same sex. None of the thirteen states had laws permitting broadcast radio or television, either. Clearly broadcasting was and still should be prohibited. I don’t think anyone **raised** the question of whether two persons of the same sex could marry, so assuming what their answer to that hypothetical question might be is quite literally begging the question. One could argue from the sodomy/buggery/crime against nature laws that they would have been dead set against it, or from the _droits de l’homme_ view held by most leading FFs that they would have been strongly in favor of it. Bottom line is that in the Enlightenment perspective, it was rare for someone to assume that “government might _allow_ X, Y, or Z” – rather, the people were conceived of as the basis of sovereignty, and their rights as placing limitations on the power of government. While that perspective does not necessarily govern how the constitution should be interpreted 216 years later, it should give some insight into the assumption that “government permits people to marry” – rather, the people generally give government the power to regulate marriage owing to the potential for bad judgment among some members of the body politic. ---
**Author:** ![cainxinth](https://avatars.discourse-cdn.com/v4/letter/c/7bcc69/32.png) [@cainxinth](https://boards.straightdope.com/u/cainxinth)\ **Post date:** [May 21, 2005, 4:01am UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/28 "2005-05-21T04:01:14Z")
> [@NillyWilly](#): > > You have a privelege to drive. Your privelege can be restricted as a consequence of your actions. But, everyone’s privelege can be restricted even in the absence of malfeasance. No, that is not true. No state government can revoke the right to drive without cause, and I just explained why in the previous post. ---
**Author:** ![sewalk](https://avatars.discourse-cdn.com/v4/letter/s/b3f665/32.png) [@sewalk](https://boards.straightdope.com/u/sewalk)\ **Post date:** [May 21, 2005, 5:25am UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/29 "2005-05-21T05:25:01Z")
I don’t understand how marriage is a right. In my understanding, marriage is traditionally held to be a religious ceremony that the state may recognize as a special union and then confer special status upon that union supposing it meets certain well-defined qualifications, such as not being between siblings or persons of the same sex. A driver’s license is similar. You apply and take an exam and upon passign the exam and paying a fee, you are granted the license to drive. You had to meet certain special conditions to obtain the priviledge. Voting, free association, ownership of firearms and the like are rights. All citizens are born with full authority to exercise them once they reach legal age. Revoking them requires due process, i.e. a felony conviction. They cannot be revoked at the whim of the legislature. Licensees can be affected by changing laws that modify the requirments for holding licenses. When the license expires in such circumstances, the licensee must meet the new requirements to continue exercising the privilege. Rights are not subject to such changing legislation. In the case of inter-racial marriage, laws proscribing it were held to be discriminatory on the basis of race. Laws that discriminate on the basis of sexual orientation have not yet been so widely struck down by the courts. ---
**Author:** ![rfgdxm](https://avatars.discourse-cdn.com/v4/letter/r/c0e974/32.png) [@rfgdxm](https://boards.straightdope.com/u/rfgdxm)\ **Post date:** [May 21, 2005, 5:40am UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/30 "2005-05-21T05:40:06Z")
> [@Polycarp](#): > > None of the thirteen states had laws permitting broadcast radio or television, either. Clearly broadcasting was and still should be prohibited. Bad analogy. Radio waves by their nature cross state boundaries, and thus are interstate commerce. ---
**Author:** ![rfgdxm](https://avatars.discourse-cdn.com/v4/letter/r/c0e974/32.png) [@rfgdxm](https://boards.straightdope.com/u/rfgdxm)\ **Post date:** [May 21, 2005, 5:45am UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/31 "2005-05-21T05:45:01Z")
> [@sewalk](#): > > I don’t understand how marriage is a right. In my understanding, marriage is traditionally held to be a religious ceremony that the state may recognize as a special union and then confer special status upon that union supposing it meets certain well-defined qualifications, such as not being between siblings or persons of the same sex. A driver’s license is similar. You apply and take an exam and upon passign the exam and paying a fee, you are granted the license to drive. You had to meet certain special conditions to obtain the priviledge. I agree marriage is not a right. States may by civil law allow marriages between different and opposite sexes. However, I see nothing that says the states MUST allow civil marriage, even between opposite sex couples. ---
**Author:** ![jd2838](https://avatars.discourse-cdn.com/v4/letter/j/f05b48/32.png) [@jd2838](https://boards.straightdope.com/u/jd2838)\ **Post date:** [May 21, 2005, 5:49am UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/32 "2005-05-21T05:49:04Z")
> [@RealityChuck](#): > > Generally, a right is something you have by birth (the right to life, liberty, and the pursuit of happiness; the right to vote) and which cannot be taken away from you, while a privilege is something granted to you by a civil authority, and which theoretically can be taken away. > > The clearest example of a privilege is a driver’s license. The ability to vote is a right. Why/ Voting rights can also be taken away. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 21, 2005, 6:28am UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/33 "2005-05-21T06:28:16Z")
Working in a prison, I’ve learned that rights and privileges are definitely two distinct legal concepts. Inmates have many rights (food, shelter, medical care, access to the court system, correspondence, religious beliefs, and others) and they have many privileges (watching TV, having personal property, cooking, receiving visits, religious practices, and others). We can take away their privileges in many cases but, except in a few rare and unusual cirumstances, we cannot take away their rights. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 21, 2005, 6:33am UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/34 "2005-05-21T06:33:17Z")
> [@](#): > > Lousy uppity Tuesday-borns, forcing their sick views down people’s throats… Yes, we all know how pro-gay those Tuesday people are: _Monday’s child is fair of face Tuesday’s child watchs Will & Grace_ ---
**Author:** ![rfgdxm](https://avatars.discourse-cdn.com/v4/letter/r/c0e974/32.png) [@rfgdxm](https://boards.straightdope.com/u/rfgdxm)\ **Post date:** [May 21, 2005, 6:43am UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/35 "2005-05-21T06:43:09Z")
> [@jd2838](#): > > Why/ Voting rights can also be taken away. If you mean in the context of convicted felons, I believe the courts look at it as forfeiting rights. If I hold up a bank, I can also be sent to prison. However, I can’t be imprisoned without breaking a law. Note a drivers license can be taken away without violating any law. Becoming blind would mean I’d lose my drivers license. However, if I become blind I can still vote. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [May 21, 2005, 6:57am UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/36 "2005-05-21T06:57:09Z")
Voting is not a right. There are certain reasons that are specifically prohibited as being used to deny someone their ability to vote, but there is no general right to vote in the United States. ---
**Author:** ![sewalk](https://avatars.discourse-cdn.com/v4/letter/s/b3f665/32.png) [@sewalk](https://boards.straightdope.com/u/sewalk)\ **Post date:** [May 21, 2005, 7:18am UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/37 "2005-05-21T07:18:43Z")
> [@rfgdxm](#): > > I believe the courts look at it as forfeiting rights. No, the courts look on it as due process. The Constitution recognized due process as a mechanism to restrict rights of specific persons. It cannot be used to take rights away from a group of people. ---
**Author:** ![sewalk](https://avatars.discourse-cdn.com/v4/letter/s/b3f665/32.png) [@sewalk](https://boards.straightdope.com/u/sewalk)\ **Post date:** [May 21, 2005, 7:29am UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/38 "2005-05-21T07:29:07Z")
> [@Little Nemo](#): > > Voting is not a right. Voting _is_ a right. It can only be revoked by due process. All a citizen has to do to vote is register. There is not even a requirement that a citizen be able to read to exercise this right. You can make your “X” on your registration card and you can have someone read out the ballot to you. If a citizen does not speak English, he can bring an interpreter to the poling place. Braille ballots have even been prepared in some jurisdictions. Even the insane and the mentally retarded can only have their rights restricted by due process. It requires a court order to appoint a guardian for a mentally incapacitated person. This is another example of due process. Without due process, you have the right to vote. Every citizen can vote until a court says otherwise. That is the most general definition of a right you can have. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 21, 2005, 2:47pm UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/39 "2005-05-21T14:47:33Z")
The privilege/right distinction has also been criticized as nothing more than a legal conclusion: > [@](#): > > [F]or legal purposes a right is only the hypostasis of a prophecy the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things said to contravene it — just as we talk of the force of gravitation accounting for the conduct of bodies in space. One phrase adds no more than the other to what we know without it. > Thus Holmes himself readily admitted that to deny that a person had “right” to something was merely to announce the conclusion that a court would not give him any relief; but the denial itself provides no reason whatever why such relief should be denied. [http://www.constitution.org/cmt/right-privilege.htm](http://www.constitution.org/cmt/right-privilege.htm) ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [May 21, 2005, 3:37pm UTC](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783/40 "2005-05-21T15:37:20Z")
More recently, Justices Stevens and Scalia have debated whether the right-privilege distinction is dead ([http://straylight.law.cornell.edu/supct/html/88-1872.ZC.html](http://straylight.law.cornell.edu/supct/html/88-1872.ZC.html) (Stevens, J., concurring) (tradition is long-rejected) or mostly-dead ([http://straylight.law.cornell.edu/supct/html/88-1872.ZD.html](http://straylight.law.cornell.edu/supct/html/88-1872.ZD.html)) (Scalia, J., dissenting) (not as unequivocally rejected as Stevens claims). Others have agreed that if the distinction is not dead, it is in a persistent vegetative state. _E.g.,_ [http://caselaw.lp.findlaw.com/data/constitution/amendment14/14.html#t188](http://caselaw.lp.findlaw.com/data/constitution/amendment14/14.html#t188) (noting virtual demise of doctrine, but adding that it is evident that the doctrine is not totally moribund). In its opinions, the Supreme court seems more certain that the doctrine is indeed dead. [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=403&invol=365#374](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=403&invol=365#374) ; [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=408&page=471;](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=408&page=471;) [http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=397&page=254;](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=397&page=254;) \*and see \* [http://www.law.buffalo.edu/Academics/courses/631/eemeid/materials/Roth-DP.htm](http://www.law.buffalo.edu/Academics/courses/631/eemeid/materials/Roth-DP.htm) (noting that the right-privilege distinction died with _Goldberg v. Kelly_). [Previous page](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783.md?page=1) [Next page](https://boards.straightdope.com/t/whats-the-legal-difference-between-a-privilege-and-a-right/304783.md?page=3)