The routine discussion of ‘privilege’ in U.S. public secondary eduation centers on past injustices and the present aftereffects of those injustices. The reader might greet a forward-looking approach to teaching about privilege, one in which the understood goal is the extension of privilege to a broader and more inclusive set of individuals.
The U.S. Constitution has something to say about privilege, and students should explore especially Article 1, Article 4, and the 14th Amendment in this regard.
Section 9 of Article 1 states that “The Privilege of the Writ of Habeas Corpus shall not be suspended.” This privilege ensures, among other things, that an arrest cannot take place unless the arrest is warranted, i.e., a warrant has been issued, and unless the person making the arrest is authorized to do so. Anyone being arrested must be informed why the arrest is taking place, i.e., the specific crime alleged against him. Those arrested may not be held incommunicado but rather must be allowed some form of contact. Some manner of evidence or probably cause must be presented to justify the warrant and the arrest. All of this must be done to the satisfaction of a court. If the person making the arrest does not satisfy the court, the individual is judged to have been improperly arrested and will be released.
The “privilege” bestowed by Section 9 of Article 1 is one important foundation for many civil rights.
It is relevant to note that, immediately preceding this privilege, the same section has first defined that “slaves” are “persons,” that the Constitution forbids and brings to an end the importation of slaves, and that Congress has the right to levy taxes to deter slavery. Already at the very beginning of Section 9 of Article 1 is the foundation for the abolition of slavery. It is the clear intention of the text to discourage slavery.
The text proceeds from the discouragement of slavery to the encouragement of “privilege,” and this progression can only mean that the text extends such privilege to those who obtained liberty when slavery ended.
In Article 4, Section 2, the Constitution confirms that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” From this somewhat confusing phrase, it follows that anyone who is a citizen of a state has privileges, and that such privileges are not to be negated or abridged in the course of interstate commerce, travel, or trade.
This same section includes a reference to fugitive slaves, a reference undermined by the language in Article 1, Section 9, as noted above. The text sees the concept of fugitive slaves as a concept which will soon pass from relevance, once slavery is abolished.
Both in Article 1 and in Article 4, the mention of privilege is closely linked to the abolition of slavery and the securing of civil rights.
These mentions come to fruition in the 14th Amendment, in which again “privilege” and the abolition of slavery are linked. This Amendment extends privilege to those who had been enslaved and are now free:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
In this way, privilege is synonymous with the end of slavery. Where there is no privilege, there is slavery. Where there is no slavery, there is privilege. The individual who is know longer a slave is a person of privilege.
Privilege is, then, the great goal and achievement of anything which may be properly called a “civil rights movement.” The difference between a “right” and a “privilege” is subtle.
One distinction is that privileges can be taken or given to individuals. Rights are had by individuals as a circumstance of birth.
Being born, an individual has human rights; this is true of all people, i.e., of all human beings. Being born in a particular place, an individual has civil rights; each location bestows civil rights equally on all who are born there.
Having a driver’s license, and driving a car, is a privilege, not a right.
Confusion about the difference between rights and privileges is common, and for several reasons: first, usage of these words has changed over time; second, there is more than one type of right, and more than one type of privilege; third, constitutional and legal usage of these words differs from the usage found in ordinary everyday life.
Students should find much to debate and explore in this approach to understanding privilege. A forward-looking approach will ask about how this concept is, and should be, applied to concrete situations and cases. The Constitution intends for privilege to be extended with no regard to color, race, age, wealth or poverty, ethnicity, etc.
The Constitution sets a high ideal. In which cases have we met that ideal? In which cases have we failed to meet that ideal?
