Bryan Caplan  

How Free Were American Women in the Gilded Age?

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I largely agree with David Boaz's recent attack on libertarian nostaglia.  While many Americans were freer in the Gilded Age than they are today, plenty were not.  But precisely who belongs on the list of people who have more libertarian freedom in 2010 than they did in 1880? 

Boaz mentions "Jews, blacks, women, and gay people."  For blacks, his case is obvious and overwhelming: Slavery was finally over, but blacks still suffered from both Jim Crow and private racist brutality.  The case for gays is similarly strong: If you were openly gay in 1880, you probably would have been prosecuted under the sodomy laws - and lived in fear of private violence even if the law left you alone.  However, it's hard to see why Jews belong on the "freer than they used to be" side of the ledger; 19th-century America not only had legal religious toleration, but as far as I'm aware, pogroms and other private anti-Semitic violence were virtually absent.

It's when we get to women, though, that things get interesting.  Women are more than half the population.  If they're freer today than they were in the Gilded Age, we can truly say that most people in America are freer today than they were before the rise of the welfare state.  On reflection, though, this is a very big if.

Without a doubt, women lived much harder lives in 1880 than they do today.  So did men.  In those days, almost everyone endured long hours of back-breaking toil.  But of course the standard libertarian take on this is that while freedom causes prosperity in the long-run, prosperity and freedom aren't the same. 

In what ways, then, were American women in 1880 less free than men?  Most non-libertarians will naturally answer that women couldn't vote.  But from a libertarian point of view, voting is at most instrumentally valuable.  Will Wilkinson seems aware of this when he writes:
[W]omen in 1880 had almost no meaningful rights to political participation, ensuring that they were unable to demand recognition and protection of their basic liberty rights through the political system.
Yet the fact that women were unable to vote in defense of their "basic liberty rights" doesn't show that American political system denied them these rights.  Did it?  The main example that Will and others put forward is coverture.  Wikipedia's summary:

Under traditional English common law an adult unmarried woman was considered to have the legal status of feme sole, while a married woman had the status of feme covert...

A feme sole had the right to own property and make contracts in her own name. A feme covert was not recognized as having legal rights and obligations distinct from those of her husband in most respects. Instead, through marriage a woman's existence was incorporated into that of her husband, so that she had very few recognized individual rights of her own.

As it has been pithily expressed, husband and wife were one person as far as the law was concerned, and that person was the husband. A married woman could not own property, sign legal documents or enter into a contract, obtain an education against her husband's wishes, or keep a salary for herself. If a wife was permitted to work, under the laws of coverture she was required to relinquish her wages to her husband. In certain cases, a woman did not have individual legal liability for her misdeeds, since it was legally assumed that she was acting under the orders of her husband, and generally a husband and wife were not allowed to testify either for or against each other. Judges and lawyers referred to the overall principle as "coverture".

I'll admit that coverture doesn't sound like a very libertarian doctrine.  On reflection, however, matters are much more complicated than they seem.

1. Marriage was still voluntary.  From a libertarian standpoint, coverture would only have been a serious problem if parties were not legally allowed to write alternative marital agreements.  As far as I can tell, such alternatives were legal:
One exception to the feme covert rule was in the instance of a prenuptial contract. All colonies accepted these contracts, but few couples signed them. Sometimes, parents of wealthy daughters insisted on a contract to keep family property in a trust for their daughter and her heirs (daughters had no control over trusted property, however). Widows often drew up prenuptial contracts before marrying again, but they had to obtain their new husband's consent in order to keep the property inherited from their first marriage through a contract.
2. Still, wasn't coverture a blatant attempt to "nudge" people in a patriarchal direction?  Maybe, but as Sunstein and Thaler often point out, there's got to be some default contract.  The most libertarian option, of course, is separation of state and marriage, leaving the defaults up to private parties.  But the next most libertarian alternative, I think, is to defer to common definitions.  If by "marriage" most people mean "monogamous marriage," it's reasonable for monogamy to be the default rule.  If by "marriage" most people mean "a marriage where the wife needs her husband's permission to work," it's reasonable for that to be the default rule.

But did coverture capture how couples in the Gilded Age defined marriage?  I'm not sure, but it's actually pretty plausible.  Example: At the time, almost all married women kept house and raised children.  When a couple decided to marry, this sexual division of labor was probably what both of them had in mind.  For a women to work outside the home against her husband's will was probably almost as contrary to their mutual expectations as adultery.

3.  While it's tempting to dismiss pre-modern legal doctrines as blind sexism, it's often unfair.  As the economics of the family teaches us, the traditional family made a lot of sense in traditional times.  In economies with primitive technology and big families, it makes perfect sense for men to specialize in strength-intensive market labor and women to specialize in housework and childcare - and for default rules to reflect this economic logic.

4.  Even if you think you can condemn coverture on libertarian grounds, the letter of the law rarely makes a difference in marriage.  In modern marriages, spouses can't legally "forbid" each other to take a job, but as a practical matter they still need each others' permission.  Husbands aren't legally required to hand over their earnings to their wives, but if a guy suddenly stops depositing his paycheck in their joint checking account, he can't avoid dire consequences by protesting, "I'm within my legal rights!"  Coverture might have made a difference in a few marriages - especially in the upper classes.  But it's hard to see how this legal doctrine could have done much to restrict 19th-century women's freedom.

I know that my qualified defense of coverture isn't going to make libertarians more popular with modern audiences.  Still, truth comes first.  Women of the Gilded Age were very poor compared to women today.  But from a libertarian standpoint, they were freer than they are on Sex and the City.


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The author at Eli Dourado in a related article titled The Myth of the Rational Blogosphere writes:
    Bryan Caplan has taken a lot of heat for his argument that on net, American women were freer in 1880 than they are today. While some of the pushback has been substantive, the majority has been disgustingly personal. Bryan, who is a pacifistic sort, has... [Tracked on April 17, 2010 2:01 PM]
COMMENTS (72 to date)
Joe writes:

This posting doesn't deserve an argument. Research spousal rape.

Peter Twieg writes:

As horrific as spousal rape might be, isn't that just another issue like coverture that could have conceivably been contracted around?

Tracy W writes:

What are you talking about? Contraception was illegal. Information about contraception was illegal.

Okay, a problem for men too, but men don't get pregnant and thus can run away from that problem more easily.

Andrea writes:

Your argument that coverture was mitigated by the volontary nature of marriage seems to erroneously presume that the other legal structures were as they are today. Certainly, if you took the whole of modern law on marriage and sexuality and altered it solely by restoring coverture, then it wouldn't impinge very much on anyone's freedom in practice; people just wouldn't get legally married any more.

That wasn't the context it originally existed in at all, though. Before the middle of the 20th century, it was illegal in every state of the US to cohabit without being married. I'm not sure how regularly it was prosecuted, but this was a legal system that also had laws against adultery, fornication and sodomy on the books and regularly enforced them, so I think we must assume this really did have some teeth, at least in some times and places.

Regarding coverture, that changes everything. The combination of the two meant that women of the time effectively faced a choice between all the legal disadvantages marriage imposed on them, and being legally barred from having any fulfilling romantic relationships at all.

Doc Merlin writes:

@Andrea, I think you missed the point about prenuptial contract.

He did state that not only was marriage voluntary, but prenuptial contracts had more power, so if someone wanted to avoid the legal disadvantages of marriage, they could avoid it through prenuptial contract.

Kurbla writes:

Bryan: But from a libertarian point of view, voting is at most instrumentally valuable.

From libertarian point of view, it shouldn't be important how libertarian feels about losing voting rights, but how individual feels about losing his rights.

Why people believe that freedom from rape is extremely important? There is no objective reason, only the fact that majority of women feel that it is extremely important for them. So, we listen them. If they feel it is important, then it is important.

It is the same with right for vote. For majority of women, it is very important to have the right to vote, and as long as libertarian believe that women should have that right, he shouldn't challenge their own feelings about that.

Also: even if legal alternatives to marriage existed, many people have not a strength to make important decisions against the pressure of their environment. Many women were nurtured to be obedient, and they had small window of opportunity to make their own decision and without income, with little experience about anything, reject the marriage arranged by their family. Remember Jerry lee Lewis and his 13 y.o. wife. From my point of view, it doesn't look like freedom.

chipotle writes:

How can 50% of the population having 0 property rights (as a default contract) possibly be in accorance with "the law of equal freedom?"

Charlie writes:

"But from a libertarian standpoint, they were freer than they are on Sex and the City."

In what way are they freer, lower taxes?

Also, can we really discount social mores. At one point does shunning and social cost by a community on individuals become a restriction on freedom?

If social mores count, we can just use revealed preference. How many women would go back to 19th century social-political environment in exchange for lower taxes/ smaller government?

Telnar writes:

There is a positive liberty argument against coverture. By setting a default which many people will passively accept when they are too young too fully understand its implications, coverture diminishes the negotiating position of a woman who prefers otherwise since men who prefer coverture will be able to easily find a wife who is willing to accept the default. This problem is magnified by women marrying at a lower age than men on average.

steve writes:

So women cannot vote on issues which affect them, but it does not matter? Why did we have the American Revolution? Women often had little choice in who they married then. hey had little or no choice in careers. They could have had a contract written so that they could own property, but few would have had the means to acquire such a contract.

So, they had fewer government bodies ruling over them and that made them more free? They had the freedom to stay home all day and cook, clean and make clothes for their family. Have you actually asked any women if that is the kind of freedom they would prefer?

Steve

Loof writes:

Bryan asks: "But precisely who belongs on the list of people who have more libertarian freedom in 2010 than they did in 1880?"

Before "precisely who" please answer precisely what is “libertarian freedom”?

Can a person as a "who" be property to be marketed; are people free to become another’s property, at liberty to sell self in a market?

For American libertarian economists it seems “freedom” refers to positive law contracts of property that can be freely exchanged in a market for money or some property worthy of exchange.

Prophet Muhammed had 11 wives. The last time he was in the market for a wife he struck a deal with the father of Aisah. When their marriage was consummated she was 9, which was allowed within Bedouin law. Was the Prophet exercising a libertarian freedom?

Jason Kuznicki writes:

During the era of coverture, a woman could NOT make a legally binding contract with her husband. Marriage made the two people into one, legally speaking, and one could never make a contract with oneself. The binding prenuptial is a modern, post-coverture creation, one that was only being developed in the late nineteenth century.

Sure, couples still made such agreements, even in the colonies, but they were rarely if ever enforced by the courts, and husbands could and did renege on them once they got married. Nothing held them to keep their promises to their wives. See Hendrik Hartog's Man and Wife in America: A History for much more detail on this. The eHow article is just plain wrong here, or at best misleading.

The article you cite from eHow is simply mistaken, to add to the other well-justified criticisms above, regarding cohabitation, marital rape, contraception, and the wife's loss of all property and future earnings to her husband.

byomtov writes:

As horrific as spousal rape might be, isn't that just another issue like coverture that could have conceivably been contracted around?

No. It's not.

Rape is a felony. The legislature decides what acts are felonies.

Two private individuals cannot sign a contract that declares something a felony:

"If the kitchen remodelling is not finished by June 30, 2010, contractor shall be imprisoned..."

Western Dave writes:

Coverture only makes sense if the contract was binding. Given that divorce was almost impossible (only by act of the state legislature, and then but rarely despite often overwhelming evidence), that was not true. Since the marriage contract was not binding in it's advantages but binding in all of it's disadvantages, it's hard to see how this made women more free.

And it's not like your argument is original. It would have been nice to acknowledge that in the 1840s most women and men believed the argument and it was well articulated by Catherine Beecher in her best-seller A Treatise on Domestic Economy. But by the 1880s many if not most women had ceased to believe it because they realized that not being able to testify in court, bring a court case in their own name, vote, make contracts in their own name etc. etc. actually made them substantially unfree. But that would have required research into the time period rather than a thought experiment. Still, you could have made a trip to the library, it's not like there isn't 40 years worth of strong scholarship on precisely this stuff.

Barry writes:

You know, this latest 'libertarian' brouhaha reminds me of the pedophilia crisis in the Catholic Church, in that it's really, really hard to find an argument which won't be eagerly seized upon by apologists. It certainly confirms the stereotypes about libertarians.

liberty writes:

Wow. I must say that the arguments here are incredible weak and offensive.

"Women of the Gilded Age were very poor compared to women today. But from a libertarian standpoint, they were freer than they are on Sex and the City."

What??

First of all, a single vote may not mean very much, but for 50+ % of the population to not be able to vote against laws that directly restrict their freedoms must count for something. For one thing, it means they did not have representation - and "no taxation without representation" was the original libertarian demand. Furthermore, women could not run for office.

Second, for women to have different rights than men in terms of property ownership is a violation of equality under the law and therefore undermines the rule of law -- in which every individual must be equal under the law. I don't think that women could not own and run businesses the way that men could; this may have been largely cultural but it was clearly tradition supported by the law.

And what of clothing, political clubs, business clubs and other social clubs that conferred advantages? What of sexual freedoms, freedom of speech, freedom of association, rights over one's own body, etc? Again, some of this was cultural but many of the cultural inequalities were supported by unequal legal treatment.

And in what way are women unfree on "Sex and The City"?

Lauren writes:

Hi, Bryan.

I support your basic notion that there is a lot of romanticization of libertarian ideals. However, some of the ways you motivate your discussion are inaccurate. As just one example, you write:

However, it's hard to see why Jews belong on the "freer than they used to be" side of the ledger; 19th-century America not only had legal religious toleration, but as far as I'm aware, pogroms and other private anti-Semitic violence were virtually absent.
Violence is not the only dimension that provides a measure of whether or not freedom has improved. My mother's family came to America from Austria-Hungary shortly after the Civil War. They came not because of strife, but because they were adventurers; and they had wonderful opportunities in America to produce and to raise their children in peace. But as Jews, there were freedoms in many matters such as where to live and what they could consume that were constrained. There were proscribed areas where Jews were not allowed to buy homes, or where they felt awkward to shop, congregate, sunbathe on the beach, much less do so in a way that might openly reflect any differences from the going social norms--say, of dress or customs. That they may have self-selected to want to assimilate is not quite the same as whether they were free to pursue their differences. I was aware of the recent changes and improvements in those restrictions and customs and was cautious about pushing the boundaries even during my own childhood in the 1950s and 1960s. The fact that I had more options about both production and consumption than my own parents, much less their parents, grandparents, and great-grandparents in America, reflects that freedoms of Jews in America since the 1870s/1880s have increased measurably in many dimensions. It's not all about reduced overt violence. The ability in the 1870s/1880s to find land or housing only sufficiently remote, unclaimed, or at the margins that one could still establish a place of worship or live unconfronted by potential ostracism also is not freedom. Improvement in freedom may be measured by the acceptance to not have to make oneself so remote as to be unnoticeable.

That said, your question about measuring the change in rights for women since that period is on target.

Davis writes:

"Rape is a felony. The legislature decides what acts are felonies."

Spousal rape was not a felony in 1880. The prevailing definition of "rape" excluded spousal rape until well into the 20th century (the marital exception lasted in South Carolina until 1993).

Why would the legislature bother to criminalize spousal rape, if women couldn't vote?

Contemplationist writes:

I agree with Davis.
Bryan it seems you could've spent 5 more minutes on Wikipedia and seen the 'marital rape' issue which alone makes the situation much much worse than you portray it. And as Lauren pointed out, simply absence of pogroms is a fine standard for relative wellbeing of groups in 1880, but a bad standard for comparison to 2010.

liberty writes:

Laws also must be considered in their cultural context. As some have pointed out here, the restriction of rights that married women faced; the loss of property rights and the right of legal protection against rape, among others; must be understood in the cultural context of the time.

Today, women may choose simply not to marry. At that time, there were laws against unmarried co-habitation, but even without them, there were also different social attitudes to unmarried women.

Unmarried, a woman might have had more property rights, but was she accepted by society? Did she have the social and cultural freedoms of a married woman? If not, then the law would be expected to affect far more women--strip them of their rights--then if cultural norms were different. In fact, if marrying were the exception rather than the rule, the law would probably have been different.

Cultural and legal rules work in tandem and build upon each other - they cannot be analyzed in isolation.

Shinobi writes:

Y'know I get that when you wrote this you were thinking about some vague libertarian ideas of freedom from government intervention and taxes and all that crap. And that's great. But what you forgot to think about were actual women, and what they might actually have wanted from their lives.

"Yet the fact that women were unable to vote in defense of their "basic liberty rights" doesn't show that American political system denied them these rights. "

I'm sorry but that is crap. A brief glance through history will show that any group that is given no political power will immediately be taken advantage of, whether by corporations, or by social structures that devalue them as human beings.

This is essentially what you are saying:

Just because we didn't explicitly GIVE you civil rights didn't mean we actually TOOK THEM AWAY... You had them, you just had no actual legal grounds on which to defend yourself if they were violated. I'm sure they weren't violated too often, or one of the nice people who ran the government you had no control over would have stepped in.

There is a reason women have been fighting to be treated equally since the 1800s, and it isn't because everything was already hunky dorey and we were just feeling a little pre menstrual the last 200 years.

Billy writes:

Jews had a pretty tough time in the Southern states. Even up in Maryland they were the victims of discrimination and segregation.

Nicholas Weininger writes:

Three problems with this. First, as many commenters have pointed out, you're ignoring the context of other laws affecting women; coverture was just one piece of the structure.

Secondly you're ignoring the fact that there can be other sources of organized and systematic violence in society besides government, and in the 19th C patriarchy functioned as one of these. (There is an argument to be made that in some ways, at some times, it still does; but that's another question for another comment thread). Women had to fear systematic patterns of *private* violence, not just the violence of the law, if they attempted to act as women today take it for granted that they can act-- in the same way, though not to the same degree, that blacks at the time had to fear the "law" of the lynch mob as well as that of Jim Crow. Yes, there were a few 19th C women who acted freely and defiantly anyway, like Victoria Woodhull. But the rarity of their achievement says a lot about the scope of the challenges they faced (and Woodhull got thrown in jail at one point, too, for saying and doing things that would be perfectly innocuous today).

Third, this post provides a great example of what is wrong with "thin" as opposed to "thick" libertarianism-- and especially what's wrong with the assumption that "thin" libertarianism is the only real libertarianism. That is, by treating the letter of the law in isolation from its cultural context, it ignores the ways in which cultural dynamics can change the real application of the law and thus the real extent to which it restricts liberty. I would really like to see Roderick Long or Charles Johnson respond to your arguments here; I think it would be a good teachable moment for all involved.

8 writes:

Too bad they didn't have happiness studies in 1880.

I wonder what a woman in 1880 would say about society in 2010. "Thanks for getting rid of spousal rape...and my spouse, and replacing him with a live in boyfriend who molests my children."

Philo writes:

Charlie wrote: "[W]e can just use revealed preference. How many women would go back to 19th century social-political environment in exchange for lower taxes/ smaller government?"

Good question; but women's preferences are not going to be "revealed," because women don't actually face this choice. Anyway, the choice is not between living now and living in the 19th century, but between living now and living in a (purely hypothetical) society that had 19th-century laws *and mores* along with all the other 21st-century features that matter to people, presumably including wealth and technology and ideology and religion; but the latter supposed alternative is actually incoherent: 19th-century laws/mores are grossly incongruous with 21st-century wealth/technology/ideology/religion.

A more basic question (another good one from Charlie) is whether Bryan is discussing the *narrowly legal* status of women or some broader notion of their legal *and social* status. I don't know the answer to that question, and I suspect Bryan does not, either--which means that the notion of *freedom* he is using is too vague to support the weight of his question.

Jacob T. Levy writes:

Bryan, here's a pretty basic point that I think you'll accept:

Coverture, as you say, mean that "A married woman could not own property, sign legal documents or enter into a contract, obtain an education against her husband's wishes, or keep a salary for herself."

You go on to talk about contracting around the property rule via prenup (in 19th century terms, via trust).

But you could not contract around the contract rule. A prenuptial agreement could not make a married woman into a legal contractor.

From any even vaguely libertarian perspective, the inability to contract is a massive restriction of liberty.

----------

Point 4 is massively unworthy of you. The allocation of legal rights might not matter in entirely happy and consensus-based marriages. But as soon as there is strain, it matters. Which spouse can threaten which with divorce, for what reasons, and with what consequences for child custody and resources, matter massively and deeply for intramarital decisionmaking.

More broadly: in a world in which contraception and communication about same are criminalized, in which fornication was a criminal offense, and in which pregnancy could prove fornication on the part of a particular woman but not a particular man, marriage was... less than entirely voluntary. The burdens of those prohibitions fell most heavily on women anyways even when they were formally neutral (which they weren't always), but they also had the effect of making entry into marriage something other than a calm weighing of rights on the part of the participants...

Cartesian writes:

Some European historical details :

Here are some excerpts from “Julie” by J-J Rousseau (Second part, letter 21) which was written during the eighteenth century :

About the women from Paris : “They have seen that an uncovered throat is a scandal in public ; they have widely low-cut their body…This charming modesty which, honors and makes more attractive the feminine persons like you, did seem vile and not noble to them ; they have animated their gesture and their words by a noble impudence ; and there is not any honest man to who their confident look do not make the eyes go down. This is thus that stopping to be women, by fear to be confused with the other women they prefer their rank to their femininity, and imitate prostitutes, in order not to be imitated.”
“The natural happiness to the nation, nor the desire to imitate the great airs, are not the only causes of this liberty of words and of carriage that it is possible to remark here with the women. It seems to have a deeper cause in morals, by the indiscreet and continual mixing of males and females, which makes acquire to both the air, the language and the manners of the other.”
“Adultery is not revolting here, one do not find anything against decency about it : the most decent novels, those that everybody reads in order to learn are full of it ; and disorder cannot be blamed any more as soon as it is joined to infidelity… It looks like that wedding is not at Paris of the same nature as anywhere else. This is a sacrament, they pretend, and this sacrament does not have the strength of the lesser civil contracts ; it seems to be only the agreement of two free persons who agree to stay together, to have the same surname, to recognize the same children, but who have, moreover not any kind of right one about the other ; and a husband who takes it into his head to control here the behavior of his wife should not excite less murmurs than the one who could stand the disorder of his one where we live. The women, on their side, do not use any rigor toward their husbands and one cannot still see that they ask to punish them because they imitate their infidelity.”
“A quite common remark, which seems to be dependent on the women, is that they do everything in this country, and then more harm than good ; but what justifies them is that they do the harm pushed by the men, and the good by their own action.”
“They are less indiscreet, causing less worries than in our country, less perhaps than anywhere else. They are more learned, and their judgment profits in a better way from their instruction.”

But I am not sure that we can make more remarks to the Parisian women than to some others currently, on the top of that Rousseau did write that this did seem to spread at this time. Anyway what seems clear is that we cannot blame the USA for what appears in this text.

Cartesian writes:

A bit more :

Here are some excerpts of “Emile” by J.-J. Rousseau :

“ All the faculties common to men and women are not equally shared among them, but taken as a whole they do compensate ; woman is better as woman and worse as man ; any time that she asserts her rights she has the advantage ; any time she wants to usurp ours she stays below us. One can answer to this general truth only by some exceptions ; constant way to argue of the gallant supporters of women.” (See book 5)

Women did not have the liberty to be intelligent ?

“Also Miss de l’Enclos did pass as a prodigy.” (See book 5)

We can find in the commentaries by Pierre Burgelin of the French “Folio essais” 2002 edition :
Ninon de Lenclos (or de l’Enclos) (1620-1705) is staying an exception in the fact that the liberty of her morals and her absence of modesty do not deprive her of some other virtues, which are rather male ones. “The famous Ninon de Lenclos, loose lover, sure friend, honest man and philosopher (as so-called), …” (Duclos, Confessions du comte de ***)
Also it is possible to read that the role of the women in literature is an important feature of morals (they were some important referees for censorship, see book 4). They did have a great place, particularly in the novel style, for example Mrs de Tencin, Mrs de Grafigny, Mrs Riccoboni, in order to quote the most famous.

But there was also Mrs Lambert or Emilie du Châtelet (on the scientific side).

Byomtov writes:

Davis,

Spousal rape was not a felony in 1880. The prevailing definition of "rape" excluded spousal rape until well into the 20th century (the marital exception lasted in South Carolina until 1993).

I'm not sure if you are criticizing my comment or not. Perhaps I was unclear.

I was not claiming that spousal rape was illegal in 1880. I was reacting to Peter Twieg's suggestion that, even without laws, the issue can be dealt with contractually. I simply wanted to point out that even in wild libertarian fantasy worlds, this is not true.

It cannot be dealt with contractually, because defining felonies is the business of (shudder) government, not private contracting parties.

Davis writes:

"It cannot be dealt with contractually, because defining felonies is the business of (shudder) government, not private contracting parties."

Ah, I misread your point because I had overlooked Twieg's comment. In that context, you make an excellent point.

John Thacker writes:

While I'm not suggesting at all that blacks didn't have it worse then, Jim Crow actually really started after 1880. 1880 was still in the immediate post-Reconstruction period when blacks could vote in most Southern states, and the House refused to seat members elected in elections where blacks were not allowed to vote. As late as 1896 a black-white Republican-Populist Fusionist alliance won North Carolina elections and sent even a black Representative to Congress.

In the late 1880s and early 1890s, the North gave up on policing black rights-- first Congress abandoned its duties and said it was the Supreme Court's issue, and the Supreme Court equally vacated its role.

Jason Kuznicki writes:

Here's another thing I've been wondering about.

How can you be (rightly, I think) concerned about soft paternalism in our own day, and yet defend the much harder system of paternalism that was imposed on women in the nineteenth century? If choice architecture today causes you to worry, why does nineteenth-century choice architecture, with all of its vigorous inducements, get such an uncritical defense?

JLR writes:

"While many Americans were freer in the Gilded Age than they are today"

I challenge you to find one single American who was freer in the Gilded Age than today.

liberty writes:

"How can you be (rightly, I think) concerned about soft paternalism in our own day, and yet defend the much harder system of paternalism that was imposed on women in the nineteenth century?"

This is an excellent point. Sadly, I think a lot of men do this unconsciously - seem to be unaware that their values of freedom as recently as a few decades ago, and to some small extent even today, were not given to women even as much as they were to black men, whether by custom, paternalism or by law--and that in the days of slavery of blacks, white women were in many ways also slaves. Of course, black women probably had it worst of all (they may not have slaved away in fields but they were frequently raped, etc, along with being stuck in domestic indoor slavery.)

This is not to accuse men of being stupid or misogynistic - I think frequently men assume that the (biological) differences between women and men, and the customs and traditions of society then and to some extent now, somehow justified this different legal and social treatment.

NZ writes:

Not to mention that women throughout (most of) the Gilded Age were able to use heroin, morphine, opium, cocaine, and cannabis without being sent to prison.

Carter writes:

Shielding women from the burden of suffrage frees them to engage in the femininely pursuits for which they are most apt.

Doug writes:

So Jim Crow was worse than the modern day drug war which disproportionately affects blacks? I don't have statistics off-hand but I am 95% certain that the incarceration rates of blacks in 1880 was at least an order of magnitude lower than it is today.

Mark Brady writes:

"The case for gays is similarly strong: If you were openly gay in 1880, you probably would have been prosecuted under the sodomy laws - and lived in fear of private violence even if the law left you alone."

A few thoughts about life for gay men and women in 1880.

(1) It was much easier for men and women who engaged in same-sex behavior to conceal their conduct than for blacks to pass as white or women to pass as men.

(2) Even if gay couples would regard themselves as self-consciously homosexual or gay – although, of course, they wouldn't have used either word until the twentieth century – I suggest the police were probably not especially interested in uncovering same-sex activities to obtain convictions. And it was common for spinsters to live together so lesbians were pretty safe from prosecution. People could get away with a lot more then than now in many areas of life.

(3) Consider the history of so-called sodomy laws in American states and their judicial interpretation and enforcement. Legal prohibitions were extended and more widely enforced. And, generally speaking, police repression of "vice" became more extensive and effective in the twentieth century – and that was in the context of increasing urbanization and social regimentation of private life in general.

(4) Cross the Atlantic to England and only buggery (anal sex) was illegal in 1885. This changed when the Labouchere Amendment to the Criminal Law Amendment Act of 1885 made "gross indecency" between men a criminal offense (which effectively outlawed fellatio). In 1895 Oscar Wilde was convicted under this law and sentenced to two years' hard labor. In 1921 an attempt to extend this law to women was passed by the House of Commons but defeated by the House of Lords. Readers will note that sometimes the peers can be an instrument for liberty – knowingly on some occasions, unwittingly on others!

liberty writes:

I am still waiting for an update from Bryan admitting that he failed to account for rape within marriage (property rights over one's own person), contract rights within marriage (property rights generally, excluding simple ownership) as well as the cultural context surrounding the laws that limited a woman's ability to not marry or to get around even simple property ownership bans applied to married women.

I thought "truth comes first" -- does Bryan really think that "from a libertarian standpoint, [women] were freer than they are on Sex and the City" when if they did as society expected and married, they had no rights to not be raped by their husband, no rights to engage in any contract, obtain an education, earn a salary, or (if she failed to secure a prenuptial) own any property whatsoever?

I doubt it - I think he just likes to stir trouble - but what does his wife think of his arguments?

aretae writes:

Re: women

Several commenters have it right. At issue is the fundamental disagreement between the right-libertarians and the left-libertarians. Is oppression/freedom all about government or not?

The left-libertarians (I count myself among them) say no. The "vulgar" libertarians say mostly yes. This is a case of heavy oppression of women, but not by the state. There was indeed a reason that all the libertarians of the age listed female oppression as among the great sins of the day.


Re: gays

I recently read something in Deirdre McCloskey's virtues book that suggests that it was actually later that anti-gay discrimination came into force. In the 1880s, if my memory is correct, homosexuality was nominally illegal, just like oral sex (included under Sodomy) in Texas in 1990. Only later (1910s?) did the anti-gay sentiment actually rise, and become enforced.

Jayson Virissimo writes:

Before anymore confusion is added to this conversation, I think we should remember that suffrage isn't a liberty, it is a right. Every right has a corresponding obligation, while liberties are those elements of a set of feasible actions a person can take that doesn't harm others. Rights are created by agreements (contracts) or else are granted by the sovereign.

For instance, heroin use was a liberty in the 1890s, but not a right. If you buy a sandwich for $10, you have a right to the sandwich (and the seller has a right to your $10). In the same way, you have an obligation to provide the $10 to the seller (and the seller has an obligation to provide you with a sandwich). No one had an obligation to provide others with heroin (unless under contract to do so) in the 1890s. This is one area that "Gilded Age" persons had more liberty than modern Americans.

Women in the 1890s did have some liberties that they don't have now, but modern women have many more (state granted) rights than women in the 1890s had. When we are clear about what we mean by liberties (what Caplan called freedoms) and distinguish them from rights (which have corresponding obligations), much of the disagreement is dissolved.

Benthead writes:

"Women of the Gilded Age were very poor compared to women today. But from a libertarian standpoint, they were freer than they are on Sex and the City."

Do any other libertarians agree with this? Because if it's consistent with libertarian principles, I have to say it is highly damning for libertarianism.

As others have noted, you can't contract around your non-existence as a contracting subject. And, yes, unmarried women had property rights--but they matter very little when virtually all private and public institutions restricted a woman's ability to secure property.

On every topic I can think of, married and unmarried women in the 1880s faced huge obstacles to possessing individual sovereignty over their lives, persons, and property, as compared to women today--reproduction, marital rape, access to education, custody of children, and the list goes on.

Yes, it's true that most 1880s women, if interviewed by a time traveller, wouldn't have chosen the lives of Carrie Bradshaw et al (but then, neither would I). But all you have to do is read literature, women's history, and legal history to know that many, many women felt that their freedom was far too restricted, whatever else they wanted to pursue. Once laws and norms changed to give women legal and social standing closer to that of white men, they *never* pushed to have those freedoms revoked in large numbers.

JLR writes:

"When we are clear about what we mean by liberties (what Caplan called freedoms) and distinguish them from rights (which have corresponding obligations), much of the disagreement is dissolved."

As long as we also understand that the original argument now reads quite differently to someone who takes the words as they are commonly understood, and to someone who has redefined the terms of the argument into vacuity.

JLR writes:

"Yes, it's true that most 1880s women, if interviewed by a time traveller, wouldn't have chosen the lives of Carrie Bradshaw et al"

I also suspect that very few modern women would willingly choose the life of an average woman of the 1880s, despite her much-vaunted freedom.

Jayson Virissimo writes:

"As long as we also understand that the original argument now reads quite differently to someone who takes the words as they are commonly understood, and to someone who has redefined the terms of the argument into vacuity." -JLR

Do you really think there isn't a meaningful distinction between "freedom of speech" (a liberty) and a "right to be heard" (a right)? One is infringed if someone prevents you from speaking, the other places an obligation on others to listen. What is vacuous about my terminology?

jre writes:

Y'all are going to feel really silly having debated Bryan Caplan if it turns out that he just posted this essay 11 days late.

JLR writes:

"What is vacuous about my terminology?"

Sorry, bad phrasing. The terminology is not vacuous in itself, but the definition of the terms in a way which is counter to their common understanding, makes the argument essentially vacuous.

"meaningful distinction between "freedom of speech" (a liberty) and a "right to be heard" (a right)"

There is obviously a meaningful distinction between these two. However, the two things thought are not even remotely parallel, in any normal understanding of 'right' and 'liberty', which is my point. If you want to make a philosophical distinction between the two terms, fine, but a major fallacy in libertarian arguments, which can make them so seductive, is that they seem perfectly logical, until you find out that what they mean by 'right' or 'liberty' is not what you mean.

I think most people would understand 'freedom of speech' as synonymous with 'right to speech', and would consider 'right to be heard' to be something altogether different and not logically related to the former.


Jayson Virissimo writes:

It should also be noted that there is an important difference between "a situation with more liberty" and "a situation where the average person from a given era would want to live". There are many people from different eras who, I am sure, would be miserable living in a free society.

JLR writes:

Scratch that extraneous 'thought'

liberty writes:

"When we are clear about what we mean by liberties (what Caplan called freedoms) and distinguish them from rights (which have corresponding obligations), much of the disagreement is dissolved."

It also makes the original post make no sense -- why talk about how the woman can get around (what turns out to be a small fraction of) the limitation on her property rights once entering marriage if property rights are not a freedom but a state-granted right anyway? He could have just ignored that, and explained that she is free to smoke opium and simply does not have some state-granted rights like property and contract, and the right to not be raped by her husband.

Most libertarians believe in a freedom of contract - and the protections required to make use of it, which include the right to contract (so that the state enforces it) and the right to property ownership (so that the state protects it against theft) and the right to one's own life and body (so that the state makes murder and rape illegal), etc. The way to protect these rights then comes from the right to gun ownership and the right to vote -- otherwise you have a tyranny that cannot be fought and which enslaves the people through "taxation without representation."

So, no your distinction does not help.

JLR writes:

"It should also be noted that there is an important difference between "a situation with more liberty" and "a situation where the average person from a given era would want to live". There are many people from different eras who, I am sure, would be miserable living in a free society."

So 'freer' doesn't mean 'better'? What are y'all on about, then?

Jayson Virissimo writes:

"So 'freer' doesn't mean 'better'? What are y'all on about, then?" -JLR

Do you really think kings and nobles would prefer a world in which they do not have special legal privileges? I think not.

Kim Jong-il likes things in North Korea just the way they are (unfree). I would wager that a free North Korea wouldn't be "better" for Kim Jong-il.

SimonK writes:

Wow. I think I may use this as an example of the worst possible kind of libertarian argument. To whit:

1. It reflexively defends the past as a model for the present, thus making a (fairly extreme) conservative argument in the guise of libertarianism. I'd be much more tolerant of this kind of thing if libertarians spent nearly as much effort defending the libertarian aspects of the present as they do defending indefensible eras of the past.

2. It defends its position of the grounds of a (completely theoretical) freedom to contract out of oppressive arrangements without accounting for the institutions surrounding it. A woman who "contracted out" of coverture would still be unable to get a job, open a bank account, register a title deed, because she'd still be in society that did not in general expect women to do these things. What kind of freedom is that, to have nominal property rights that were in practice not recognized at all?

Polly writes:

"But from a libertarian standpoint, they were freer than they are on Sex and the City."

An excellent demonstration of the utter vapidity of the "libertarian standpoint."

Contemplationist writes:

Bryan

This half-baked half-thought post has unfortunately diminished the status of libertarianism on the web. Of course you shouldn't shy from hard-hitting politically incorrect truths. But this was a completely vapid post.

Jon Hendry writes:

"Yes, it's true that most 1880s women, if interviewed by a time traveller, wouldn't have chosen the lives of Carrie Bradshaw"

I think they'd choose a life like Carrie Bradshaw over a life like "Sister Carrie" from 1900.

Peter writes:

You all do realize spousal rape (like spousal abuse) swings both ways right; it's why you can ignore it in the context of theoretical arguments such as this as Bryan right did.

This constant women can't be abusive or minorities can't be racist is one of items I hate most out of the cultural revolution of the last hundred years; white men gave up a lot of liberty and material wealth for the benefit of the whole and got nothing in return but grief.

Benthead writes:

@Peter:

"You all do realize spousal rape (like spousal abuse) swings both ways right; it's why you can ignore it in the context of theoretical arguments such as this as Bryan right did."

Actually, it didn't swing both ways. If an 1880s husband was subjected to unwanted demands for sex from his wife, or was beaten by his wife, he could leave and take all the property with him. She could not. Under coverture, he WAS the legal subject for the couple. The law backed him up, whether he wanted sex or didn't want sex from her. Physical abuse was a more complicated matter but still followed the same basic legal logic: because the husband controlled the property, he didn't have to choose between abuse or penury.

"This constant women can't be abusive or minorities can't be racist is one of items I hate most out of the cultural revolution of the last hundred years; white men gave up a lot of liberty and material wealth for the benefit of the whole and got nothing in return but grief."

This strikes me as a remarkable, and unsupportable statement, unless you are seriously advocating the idea that marked white male privilege under the law was a proper social arrangement. Care to try to support it?

SimonK writes:

@Peter - I don't think anyone in the mainstream believes that women can't be abusive or members of minorities can't be racist. That's a stereotype of a liberal position. Rather they believe its not terribly politically relevant. Its important to prevent or punish actual abuse, which is mainly committed by men against women, and end actual racism, which is mainly committed by white people against others. Whatever you think of the appropriate role of the state in these activities, its hard to argue that it should act but dedicate equal resources to things that are rare and things that are common. Its like arguing that the DEA should continue to exist but dedicate equal resources to heroin smugglers and people who dry and smoke toad venom. The only plausible political explanation is to undermine the implementation of the laws that actually serve a purpose (although in the case of the DEA, not a useful one).

In that context, its interesting that so many "theoretical arguments" end up illustrating how eras when white men were free to abuse women and live on the product of black slaves were actually "more free" because of some impractical detail that means the abuse was voluntary and the slavery was not their fault, because you see those women could have contracted to retain their property rights and bodily integrity. Its a good job those arguments are just theoretical and not a weasel worded excuses for white men to try to reclaim their privelege of "liberty and material wealth" at the expense of others isn't it?

Loof writes:

Good grief guys, some never stop sniffling. Wipe your nose, you're dripping.

The main liberty white men gave up was the freedom to be abusive and racist. Rejoice since men benefited with freedom too. Why? Because some women, but mostly men were (and still are somewhat) angry, drunk with power or desiring more power – and, were mentally enslaved, diseased, by negative emotionalism. Many men, maybe not most, are free from that now. Never could understand why anger isn’t an official mental disease like anxiety, personality disorders, etc.

Tracy W writes:

white men gave up a lot of liberty and material wealth for the benefit of the whole and got nothing in return but grief

What are these liberties and material wealth that white men gave up?

I agree that white men gave up some freedom in marriage, in terms of being able to order their wives around. Men must now negotiate with equal partners, rather than make decisions about houses, jobs, etc unilaterally (to the extent that the legal and social system could support them in that, of course, many women still got their own way).

On the plus side, though, women having control of their own incomes presumably incentivised more money, which would increase husaband's material wealth.

White men's options of whom to marry have gone up, for example a white man can marry a woman from any ethnic group without falling foul of intermarriage laws. And the expansion of women's education means that he now has more choice of educated partners or ignoramuses (all this is conditional of course on the woman in question consenting as well, but then that was true in the 19th century).

Men have also found easier divorce - a staple of Victorian and early 20th century fiction was the man stuck married to a wife who was insane.

And of course, when it comes to men from non-white groups, what white men have gained is even more. More options for real friendship, more gaining from the ideas and hard work of their fellow men, and no increase in fights over the remote control in your own home - as of course is true of relations with women that the white man in question has no intention of getting romantically involved.

Strikes me as a win-win situation.

(I am ignoring same-sex relationships here, as I suspect that's not something Peter is thinking of).

Jason Kuznicki writes:

I don't believe anyone here has argued that women can't be abusive. And certainly not that racial minorities can't be racist.

But in 1880 as today, men were on average the larger and physically stronger sex. You tell me who is more likely to get abused by whom. Or just look at the relative incidences of female-on-male versus male-on-female rape.

Barry writes:

Doug writes:
"So Jim Crow was worse than the modern day drug war which disproportionately affects blacks? I don't have statistics off-hand but I am 95% certain that the incarceration rates of blacks in 1880 was at least an order of magnitude lower than it is today."

I'd argue that it was from one to two orders of magnitude *larger*. The whole point of Jim Crow laws, and the social system which generated and backed them, was to deprive blacks of as much freedom as possible. Push them into tenant labor, put them on chain gangs, make sure that whites cheating them and/or stealing from them was acceptable, and to make sure that any black man who rose too high (e.g., owned significant property) 'rose a bit higher', on the end of a rope.

BlackEye writes:

Doug,
I'm sure the order of magnitude for getting lynched was much higher among African Americans back then.

ak writes:

did he really cite wikipedia? that alone invalidates his entire argument.

Dr. Psycho writes:

You can make a case that (within specific limits) a woman of the 1880s had more freedom than a woman of the 2010s, but only in the way you can argue that, say, a piously Catholic and politically uninterested landowner of 17th Century Spain is more free than a piously Catholic and politically uninterested landowner of 21st Century Colorado.

In either case, I think the most appropriate reply is, "I kinda doubt it, but even if it were ture, so what?"

kirbyp writes:

If the main argument that the Guilded Age was freer was lower taxes, that benefit means nothing for the half or so (stats welcome) of U.S. women who today receive more in benefits than they pay in taxes and/or are subject to minimal taxes. For this share of today's (U.S.) female population, today is undoubtedly freer than the past -- change in tax burden is trivial and they enjoy and social and legal freedoms unheard of in the past. That fact makes the burden of showing that the past was better far higher.

Sophist writes:

"..white men gave up a lot of liberty and material wealth for the benefit of the whole and got nothing in return but grief."

Oh, you poor dears! White men of means went and -- out of nothing but the goodness of their hearts -- gave up their god given freedom to own black people and women, and to send ten-year-olds into coal mines, and to have strike breakers crack open unionizing worker's skulls, and all the other manifold liberties that they had justly exercised over everyone who wasn't a white man of means, and all the blacks and women and proles never heaped on them the effusive praise and gratitude that was their due for such lavish magnanimity.

Truly, my heart weeps for them.

Mark Banks-Golub writes:

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Sio writes:

I just want to say that while the original argument was ridiculous, the comments more than make up for it. I am sort of hoping the original post was just a strawman so that the audience could take a good wack and destroy the entire concept. The beat down was very enjoyable to follow.

But then I tend to assume the best in people, a trait that is not always realistic.

Lisa writes:

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mythago writes:

As an economist, you're no doubt aware that in 19th century America, what jobs women could take was severely restricted by law, and in those jobs women could hold, it was perfectly legal to pay women less and treat them worse than their male co-workers. Contrary to the claim that a division of labor is sensibly based on physical strength, many of the jobs from which women were barred (by law, custom or both) had absolutely nothing to do with "strength-intensive" labor - for example, the practice of law or medicine.

So the claim that women entered into marriage as a purely 'voluntary' act is more than a little disingenuous. Women did not have the freedom than men did to choose to be economically self-sufficient in lieu of marriage. And it's more than a little odd to argue that women were fully free to enter into marriage, or not, given that as minors they were the property of their fathers.

Perhaps without meaning to, you've given immense support to Boaz's point. When your response is to argue, with a straight face, that women didn't really need the vote anyway and there's not much wrong with a woman becoming her husband's property on marriage, you cannot possibly wonder why women are not beating down the doors to identify as Libertarians.

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