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How the First Amendment Came to Protect Topless Dancing. By Susan Shelley. Kindle edition.


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A Plan to Get Out of Iraq: Blackstone's Fundamental Rights and the Power of Property

by Susan Shelley

It was January, and the United States Congress was grappling with the problem of how to bring freedom to an oppressed people. In spite of the decisive U.S. military victory, freedom was being undermined by local leaders whose stubborn adherence to the old ways threatened the success of the entire enterprise.

The year was 1866. The people were former slaves. The country was the United States.

After the Civil War, it quickly became apparent that the Thirteenth Amendment--which abolished slavery in the U.S. and all its territories--would not be enough to guarantee freedom to the freed slaves. The defeated Southern states were passing laws designed to keep the former slaves in a condition as close to slavery as possible. These laws were known generally as the Black Codes.

In Mississippi, for example, a new law required blacks to contract to do a year's work, and to forfeit their entire year's wages if they quit early. Employers had the legal right to recapture any worker who deserted. The law banned blacks from owning land and even from renting or leasing except in specific places controlled by local authorities.

When the 39th U.S. Congress convened, the first item on its agenda was a federal civil rights bill that would abolish the Black Codes, as well as a constitutional amendment that would echo the bill's provisions and secure it from reversal by any future Congress.

House Judiciary Chairman James Wilson explained that the intent of the Civil Rights Bill of 1866 was to guarantee to the former slaves all of Blackstone's fundamental rights. He was referring to Sir William Blackstone, the 18th-century English legal scholar whose work was a major influence on the framers of the U.S. Constitution. 

Chairman Wilson stood on the floor of the House and read Blackstone's definition of the absolute rights of individuals. These, he quoted, "may be reduced to three principal or primary articles":

I. The right of personal security [consisting] in a person's legal and uninterrupted enjoyment of his life, his limbs...

II. ...the personal liberty of individuals... [consisting] in the power of locomotion, of changing situations or moving one's person to whatsoever place one's own inclination may direct, without imprisonment, or restraint, unless by due course of law...

III. The third absolute right, inherent in every Englishman...of property: which consists in the free use, enjoyment and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land.

What does this tell us about Iraq?

It tells us that if the Iraqi people had a nickel for every time President Bush has said "The oil belongs to the Iraqi people," we'd be on the right track.

Blackstone tells us that property--not public schools or health care services or even freedom of speech--is the essential foundation of freedom. The missing link to freedom in Iraq is private property.

Currently, the oil reserves and the oil industry in Iraq are state-owned enterprises. That means the group or sect or tribe that controls the government controls virtually all the wealth of the country.

In such a situation, what would you call people who fight savagely for power, swearing blood loyalty to their leader, using every tactic of brutality to hold down or wipe out rival groups?

You might call them perfectly rational.

After all, when the government owns the major industries of the country, an individual who is part of a group that is out of power can expect to struggle for economic survival, possibly for the rest of his life. It will not win hearts and minds to promise another election soon. The Iraqis will remember that Saddam Hussein was once re-elected with a one hundred percent turnout and one hundred percent of the vote.

For the individuals in the group that is in power, the news is not much better. They can expect financial security for themselves and their family members only as long as their loyalty to the leader is not in question. One wrong move, which is to say, one word or action that conflicts with the will of the government, and starvation could be the least of their problems.

In an economic system like that, of what use are individual rights? How does freedom have any meaning for people whose economic survival depends on unquestioned loyalty to the ruling party, to say nothing of what they must do to make sure their party is ruling?

State ownership of Iraq's wealth is a formula for eternal violence.

What would happen if the Iraqi oil reserves and the oil industry were privatized? Suppose for a moment that the state-owned enterprise was converted through the Mother of All IPOs into a shareholder-owned enterprise, with a majority of the shares guaranteed to be held by Iraqi citizens, and some foreign investment allowed in so that capital flows into the country.

Suppose the compensation package for Iraqi police officers and army recruits and teachers included both a salary and a private investment account into which shares of Iraqi Oil Incorporated would be deposited.

Suppose the oil really did belong to the Iraqi people.

It is not hard to imagine their reaction the next time some band of thugs blows up a pipeline or takes down the telephone system. Owners raise holy hell, not holy war.

People who own property need a system of government that protects individual rights. Forty years of public school education will not teach the love of freedom as effectively as a dividend check deposited into a secure bank account.

The key is to spread the ownership of the oil industry widely throughout the population, to make the barriers to entry very low so that everyone can buy some shares, to provide access to private consumer financial services that will permit men and women as individuals to acquire property and perhaps eventually to become wealthy. The Iraqi people will control their own economic futures and there will be no need to risk life and limb to further the ambitions of a cleric or a thug.

The lethal mistake is to think that privatization must wait for political stability. Privatization is the only route to political stability.

May 22, 2004
Susan Shelley is the author of the novel The 37th Amendment, which includes an appendix on the history of the Bill of Rights and the Fourteenth Amendment titled "How the First Amendment Came to Protect Topless Dancing." Both are now available in eBook editions from

© Copyright 2004 by Susan Shelley

Source Notes: 

On Mississippi's Black Code: Charles Fairman, History of the Supreme Court of the United States, Volume VI, Reconstruction and Reunion, 1864-88, Part One pp. 112-114 (New York, Macmillan Publishing Company, 1971).
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On the intention of the 39th Congress to reverse the Black Codes with a civil rights bill and a constitutional amendment: Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment, Second Edition [paperback] pp. 32-33 (Indianapolis, Liberty Fund, 1997).
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On Blackstone's Fundamental Rights and the debate over the Civil Rights Bill of 1866: William Blackstone, Commentaries on the Laws of England pp. 129, 134, 138 (1765-1769), cited in Berger, Government by Judiciary pp. 30-31 (1997); see also Raoul Berger, The Fourteenth Amendment and the Bill of Rights p. 110 (Norman, University of Oklahoma Press, 1989).
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On the proven and inevitable incompatibility of state ownership with freedom: Isabel Paterson, The God of the Machine (New York, Putnam, 1943).
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For complete notes on the debate over the Fourteenth Amendment and the Civil Rights Bill of 1866, please see the appendix to The 37th Amendment, online at:

Or pick up the new and expanded eBook edition at:


Click the title to read the column

New! Restoring the Raise: How to Cause a Labor Shortage in America

How to Set Up a Free Country

In Defense of the Banks

The Second Amendment and the Big Surprise


The Motive for War: How to End the Violence in Iraq

The Secret Life of the Bill of Rights

The Tyranny of the Children

A Plan to Get Out of Iraq: Blackstone's Fundamental Rights and the Power of Property

Cornered: The Supreme Court's Ten Commandments Problem

How to Get Congress to Foot the Bill for Illegal Immigration, and Fast

Why There Is No Constitutional Right to Privacy, and How to Get One

Judicial Activism and the Constitutional Amendment on Marriage

Marijuana, Prohibition and the Tenth Amendment

A Retirement Plan for Sandra Day O'Connor

How the First Amendment Came to Protect Topless Dancing

The Great Death-Defying California Recall Election

The Meaning of CNN's Confession

The Bill Bennett Mystery

Susan Shelley is running for Congress in California's 30th District, the west San Fernando Valley.

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