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The Demise Of The Right-Privilege Distinction In Constitutional Law, William W. Van Alstyne

Faculty Publications

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 …