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This question pertains to limits on government action in the US. It is commonly said that driving is a privilege and not a right. Washington state statutes are a bit murky, but RCW 46.20.001 (entitled "License required—Rights and restriction") states that

(2) A person licensed as a driver under this chapter: (a) May exercise the privilege upon all highways in this state; (b) May not be required by a political subdivision to obtain any other license to exercise the privilege

and at various other points, it is referred to as a privilege (especially in dealing with out of state drivers). 42.20.065 however speaks of "an applicant's right to receive a driver's license" and 42.20.095 addresses education regarding "Bicyclists' and pedestrians' rights and responsibilities". (The latter suggests that there is an right to walk down the sidewalk or cross the road, the former suggests a confused view of rights v. privileges but perhaps there's a subtlety that I'm missing).

I do not understand the legal distinction between a "right" and a "privilege", especially, I don't understand what actions are "by right" versus "by privilege". The Bill of Rights does spell out a few specific rights such as bearing arms, being tried by a jury, not testifying against myself and so on. From what I can tell, there is no articulated constitutional right to walk down the street, so walking down to the corner store to buy a quart of milk would appear to be a privilege, not a right. (I exclude the distinct concepts of "privilege" meaning "private communication", also the sense "immune to normal rules" as in executive privilege).

This distinction does not directly impinge on understanding what actions are allowed or prohibited, it pertains to the question of whether the government may restrict you in a particular way. The question is: is there any way to know in advance what actions you have a legal "right" to (the government has limited capacity to restrict your action), as opposed to actions that are simply "allowed" (the government has greater capacity to restrict you). To be very concrete, do I have a "right" to walk down the (public) sidewalk and cross the street, or is that just a "privilege" – and how would I know? I know of the 9th Amendment, also the 10th.

  • Sometimes "privileges" refer to rights, as in the "privileges and immunities clause" of Article IV of the U.S. Constitution. And I know I've seen the clause "rights, privileges, and immunities" used in various places. I'd love to see an authoritative parsing of the meaning of each term when used in that conjunction. – feetwet May 1 '16 at 2:32
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In modern democratic states, a privilege is conditional and granted only after birth. By contrast, a right is an inherent, irrevocable entitlement held by all citizens or all human beings from the moment of birth.

In some countries a citizen's (or human's) rights are enumerated in a law like the US Bill of Rights, however, people also have rights that are not enumerated. Theoretically, such laws are themselves privileges since they could be repealed or changed; the forces that prevent this are political, not legal.

Others, like Australia, have only a single right spelled out in their Constitution, freedom of religion. This doesn't mean that Australian's have no other rights, for example, the High Court has held that by establishing a representative democracy the Constitution implies a right of freedom of expression on political matters.

In practice, deciding how if something is a right or a privilege is what courts do when someone challenges the validity of a law. The argument essentially boils down to "the government can't do this because it infringes a right" vs "yes they can because that's only a privilege".

walking down to the corner store to buy a quart of milk would appear to be a privilege, not a right.

Absolutely it is, you do not have a right to:

  • sufficient mobility to allow you to walk - that presupposes normal foetal development and birth and that no subsequent injury or disease has robbed you of that privilege
  • many people have the authority to close the road that you want to use - fire fighters, police, the annual May Day parade etc.
  • the shopkeeper has no duty to open their shop, stock milk or sell it specifically to you providing that the reason they discriminate against you is not unlawful
  • the government can close the store for any number of reasons - health violations, safety violations, non-payment of rates etc.
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  • I would emphasize that in some countries some rights are enumerated. The fact that some rights are enumerated does not mean that the enumeration is exhaustive, nor that the government need not respect unenumerated rights (though in practice it may be more difficult to prevent a government from infringing unenumerated rights). – feetwet May 1 '16 at 2:25
  • The term "right" is also context specific. "Right" has one meaning relative to "privileges", but is also a word used in many other senses. – ohwilleke Mar 8 '18 at 2:10

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