I had someone on HN trying to convince me that we should put up with the TSA because flying is a privilege not a right. I can't believe how many people believe this, especially in a country as big as the US.
The dichotomy between privileges and rights may have some special legal meaning ascribed to it, but in practice, it's a distinction without a difference. For example, going to Disneyland is almost certainly a privilege, but if Congress passed a law saying Tom Jones from Denver, and only Tom Jones from Denver, was forbidden from going to Disneyland, I bet Tom would have a pretty good case that his constitutional rights were being violated.
Yes, that'd be called a bill of attainder, I believe -- those are expressly forbidden by the constitution. Of course, if powerful groups wanted such bills, we'd see lots of articles explaining how 'attainder' meant something else, something more specific. Maybe it does! A written constitution only helps so much.
There is a sliding scale of scrutiny for judicial review of laws (e.g., see http://en.wikipedia.org/wiki/Strict_scrutiny). If the law has no "rational basis" (as the example here of a specific person being forbidden from going to Disneyland) it will almost certainly be struck down, even if the restriction it imposes is unimportant.
My point is that judicial review does not break down simply to determining whether a "privilege" or a "right" is being curtailed. Certainly, if a "right" (and this means specific rights such as those guaranteed by the Due Process clause) is being curtailed, this will tend to push the standard of review higher. But that is not the only factor at work, and there is a very specific meaning of the word "right" in this context.
Exactly. Gender-segregated restrooms are held to a lower level of scrutiny than race-segregated restrooms which is why the former is allowed but the latter is not.
Also the court is so inconsistent on what gets what and whether rational basis means "we can imagine a rational basis" or "we have evidence for a rational basis" and whether a right gets strict scrutiny (free speech) or not...
For example, it is very difficult figuring out whether circumcision bans would be held to rational basis or strict scrutiny when it comes to religious liberty (it does with regard to eduction apparently, per Yoder v. Wisconsin, not regarding to drug laws absent the RFRA (see Smith v. Employment Department of Oregon), but it does reach regarding bans on ritual slaughter of animals, (see Lakumu Babalu Aye v. City of Hialeah).
Yes, and we saddle driver's licenses with all kinds of other things, at least technically: alimony paid, registered for the draft, etc.
But that just illustrates that making some economically-mandatory action into a privilege make the license to that action into a powerful instrument of control. Hence, the No-Fly List, nominally For Your Safety, but mostly To Control You.
