Legal Rights

Public/Private Distinction

The protection of rights in the United States is influenced by the so-called public/private distinction. The public/private distinction dates back to the founding of this country. In response to the impositions placed on the colonies by England, political leaders of the newly freed colonies recognized that the formation of a central government over these colonies was unlikely without significant provisions to safeguard the rights of individuals from action by the government. The Bill of Rights thus operates to provide this protection; in fact, its presence played a central role in convincing the colonies to accept a central form of government. In other words, the rights identified in the Constitution are rights that exist vis-à-vis the individual's interaction with the government. This is significant in that it means that these rights are protected only for the individual's interaction with the government—not for his or her interaction with other citizens or organizations.

The public/private distinction is the name given for this because of the view, on which it is grounded, that life can be divided into two separate domains: the “public” and the “private.” The public domain exists where the government (or its agents or agencies) is involved; the private domain exists where the government is absent. The primary contribution of this distinction lies in its effect on employment. While the same sort of work takes place in both types of environments, the nature of the employment relationship and the rights that are accorded to employees vary significantly. Employment in local, state, and national government departments and their agencies, considered “public,” is governed by the Constitution and the Bill of Rights. Employment in non-government-owned entities, such as for-profit corporations, considered “private,” is not subject to the Constitution, Bill of Rights, or many other legal provisions. While the distinction is arguably artificial, it is real according to the operation of laws in the United States.

This means that in determining legal rights in a workplace, it is first necessary to determine whether that workplace is public or private. If the workplace is considered public, it is governed by all the laws in the United States that pertain to the individual's interaction with the state. This means that rights such as free speech and due process apply. If, on the other hand, the workplace is considered private, it is restricted only by that legislation, such as the Civil Rights Act of 1964, explicitly intended to apply to both the public and private domains.

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