Bryan Caplan  

Postcard from the Gilded Age

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Women's Liberty in the Gilded ... The Decline of Coverture...
Since there's much misunderstanding of my argument about women's liberty during the Gilded Age (here, here, and here), I thought I'd write a postcard version.  The key premises are just that in the Gilded Age:

1. Taxes were much lower and economic regulation much more limited, so all else equal, men and women were much freer than they are today.

2. Unmarried women had virtually the same rights of property and contract as men, so they were much freer than they are today.

3. Marriage was voluntary, and voluntarily-accepted constraints do not infringe liberty, so appearances notwithstanding, married women were as free as unmarried women.

These three points by themselves strongly undercut libertarian complaints about women's liberty.  I then add the following additional premises:

4. While separation of marriage and state is the pure libertarian policy, government definition of marriage is much less objectionable if (a) it only sets a default rule; and (b) sets a default rule consistent with common definitions at the time.

5. Coverture was mostly, though not entirely, just a default rule, and this default probably fit common definitions of marriage at the time.

The concluding premises on the post card:

6. Other laws that might undercut (2)-(5), such as laws against cohabitation and fornication, were almost never enforced.

7. Even if you disagree with any of (2)-(5), the letter of the law rarely makes much difference within marriage.


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COMMENTS (30 to date)
liberty writes:

Thanks for the summary - makes it easier again to refute.

"2. Unmarried women had virtually the same rights of property and contract as men, so they were much freer than they are today."

I would like to see more documentary evidence on this than a few sentences swiped off Wikipedia.

"5. Coverture was mostly, though not entirely, just a default rule, and this default probably fit common definitions of marriage at the time."

As many here have pointed out repeatedly: not true. No prenuptial agreement could give married women back their contract rights -- although it *might* have allowed women to retain ownership over personal belongings, such as furniture and houses, a prenuptial agreement could *not* give a married woman back her right to own a business and hire and fire workers, or gain employment in most industries--could it?

"6. Other laws that might undercut (2)-(5), such as laws against cohabitation and fornication, were almost never enforced."

As others have pointed out, this does not mean that a woman could simply remain unmarried without facing any societal consequences. And I seriously question #2.

"7. Even if you disagree with any of (2)-(5), the letter of the law rarely makes much difference within marriage."

Even if this were true (and many have pointed out that if the consequences of breaking the contract all fall on one party, that one party has even greater power within the contract) Coverture was not just about what went on within a marriage.

Even if a given husband was quite willing to treat his wife as equal and always agree to whatever contracts she wanted to enter into, this would not make her equal in the society. Every time she wanted to enter contracts - for example in running a business or taking on contract work - she would have to ask her husband : this transaction cost would make it far less likely for others to want to enter contracts with her; this inequality would create discrimination in the society; many would-be employers, business parters, suppliers and clients, would choose to contract with men, rather than have to worry about her getting permission from her husband, or pretending to have permission when she did not.

Women were discriminated against by the law - it is so obvious that its absurd to spend so much time on the subject. I am not sure why you refuse to admit it. Women were not freer when they had no rights. Libertarians believe in equality before the law, and rights to life, liberty and property - clearly, Bryan, you are not libertarian.

David Maddock writes:

This does help me understand your position better, though I must say I find it largely unconvincing.

I also find your use of the word voluntary odd. While is it semantically accurate that I may "volunteer" to be unemployed to avoid paying an oppressive income tax, at what point do the societal "defaults" cease to provide realistic choices? I would caution you not to confuse compliance with the free exercise of personal preference.

Furthermore, surely a society which requires some people to make such a choice and some not is sub-standard to one which does require the choice at all? A default rule which promotes freedom should be preferred to one which does not, no?

Joshua Lyle writes:
No prenuptial agreement could give married women back their contract rights
I don't get this particular argument -- it seems simple to overcome the limitations. A prenuptial contract that assigned the husband's power of attorney to his wife would accomplish this, right? The couple would effectively be one legal person with both actual people having full agency. Or do you have some evidence that women could not hold their husband's power of attorney in 1880?
...a prenuptial agreement could *not* give a married woman back her right to own a business and hire and fire workers
See above; with her husband's power of attourney she should be able to do so.
...a prenuptial agreement could *not* give a married woman back her right...to gain employment in most industries
This is so, but, are women really banned from fewer professions (or a smaller proportion of professions) now than in 1880, with all of the licensure laws on the books? Missouri alone, one of the most permissive states, restricts hundreds.

I'm otherwise sympathetic to your position, but this item seems very weak.

Kurbla writes:

3. Marriage was voluntary, and voluntarily-accepted constraints do not infringe liberty, so appearances notwithstanding, married women were as free as unmarried women.

The notion of "voluntary" is doubtful. If girl has only two realistic life choices, to marry 40 years older relative, or to die of hunger - then we can say that she made her choice voluntarily.

However, it is not irrelevant how many choices she has, and why she has so few choices.

Even if you accept that people have *right* for non-violent discrimination, it still doesn't mean that woman is equally free in society with little discrimination, and in society with enormous discrimination.

Tracy W writes:

How low were taxes in relation to median income income? Taking into account custom duties, excise taxes, etc, as I have a vague memory from some history of taxes that they were a more important revenue raising way than income taxes in the 19th century. (You need quite a bit of administrative infrastructure to do an income tax, at least if you want people paying tax on their actual income, not on the income that they think they'd like to pay taxes on).

How about social regulation in the 19th century, eg blasphemy laws, cohabitation laws, etc? If you neglect those on the basis that they're not enforced, how much modern regulatory law is enforced?

Again, laws against contraception or providing contraceptive information strike me as a massive infringement on freedom, particularly women's. And the argument that most women wouldn't want contraception in the 1880s doesn't cut it, women couldn't be easily provided with information on the advantages of contraception. The whole point of free speech is to allow people to hear views that aren't popular.

Tracy W writes:

On thinking about it, I didn't explain my point about taxes well.

To give an example at my taxes point. Say median income was $3,000 a year in 1990 dollars in 1880, and $30,000 a year in today's dollars in 2008. A set of taxes that worked out to be 10% of the $3,000 a year would leave post-tax income per capita at $2,850 a year. If average taxes, income and consumption, are 40% now, then the average post-tax income would be $18,000 a year. $18,000 is a lot more money to spend how you like than $2,850. A lot higher proportion of the $2,850 would have gone on subsistence living.

I can agree that lowering taxes increases freedom, all else being equal. But when real GDP per capita has changed so much I don't think that lower taxes meant more freedom.

Stephan writes:

Although I don't agree with Brad DeLong "Yes, Bryan Caplan Is the Stupidest Man Alive" I agree with one post of his commenters: "Yes, Bryan Caplan's Cognitive Dissonance Results in Hilarious Rationalizations and Contortions." That's fine for me.

Simon K writes:

Postcard response:

(5) is not correct. Coverture wasn't legally negotiable. Any prior contract between husband and wife became void on marriage because they were then the same legal person. Any agreement would be non-binding.

(7) is extremely weak. Clearly the actual law has an effect at the margin even if it rarely has to be fully enforced and what happens at the margin sets prices. A woman is less likely to attempt or risk divorce if she'll be left without property, and if divorce is rare it will be expensive and difficult.

(3) is debatable. To what extent can you voluntarily irreversibly surrender rights? While property may be alienable in general, surely the right to obtain new property is inalienable, as is the right to access to the law and under converture a married woman surrendered both of those rights. We don't generally consider contracts that surrender inalienable rights to be voluntary - or rather we don't consider them valid because we assume they cannot have been voluntary.

Miguel Madeira writes:

"Even if you disagree with any of (2)-(5), the letter of the law rarely makes much difference within marriage."

I think that you are contradicting yourself in these point - behind the fact that social practices are much more opressive to women in XIX century than today, you say that, from a libertarian point of view, what matters is the laws, not social traditions; but, when confronted with laws that restricted women's freedom in the XIX century, you reply that social practices made this differences irrelevant.

JayT writes:

I think one thing that a lot of people are missing is that Bryan is saying that women of 1880 were more free in terms of laws. The societal mores of the time however meant that women were held down and marginalized. Take the laws from 1880 and apply them to the people of today, and women would be more free.

Miguel Madeira writes:

"I think one thing that a lot of people are missing is that Bryan is saying that women of 1880 were more free in terms of laws."

Read my previous cooment.

Douglass Holmes writes:

It is rare that I diagree with Professor Caplan, but I must. Women are more free today in the sense that they have more choices. In the 1890s divorce was more rare because women frequently did not have the financial means to support themselves. Women who had children out of wedlock were restricted in many ways. Employment opportunities were more restrictive for all women.
Despite the proliferation of laws, both men and women are more free because we are wealthier. This increased wealth has made it possible for middle class women to raise children without husbands. Whether or not that is good is not the point. The fact that the option is available makes us more free regardless of whether or not 'rights' are enshrined in law.

frank cross writes:

I don't think point 3 is very compelling. Suppose there were a rule that if you owned property you gave up your first born child to the state. I don't think you would suggest that this was libertarian because property ownership remained voluntary.

Western Dave writes:

Taxes were much lower? The tariff was 50%!

Tyro writes:

Taxes were much lower and economic regulation much more limited, so all else equal, men and women were much freer than they are today.

You have a very... interesting ... idea of what people associate with the idea of "freedom."

Taxes are lower in Dubai than they are in the USA, but you don't see Americans clamoring to move there in search of "freedom," nor did you find women in 1880 presented with opportunities for "freedom," even if they were single.

Academic, economic, and professional opportunities for women were very limited. Participation in the body politic was constitutionally limited. These are all by definition examples of a plight in which women were less free, despite the lack of income taxes. You understanding of what freedom is and how people understand freedom is completely at odds with how other, normal people understand it.

In The Prisoner, when Number 6 says, "I am a free man," he is not talking about his defiance of tax rates within his Prison.

Joshua Lyle writes:

Tyro,
Number 6 said "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered! My life is my own!". Yet taxes, as we know them, cannot exist with out pushing, filing, stamping, briefing, debriefeing, and numbering people, so by implication he was indirectly talking about defiance of tax rates.

mulp writes:

Low taxes and greater liberty in the 19th century??? Really??

If required to provide labor for public works, for example roads, is that not a tax? Towns were required by the central government to improve through roads, and they generally did this by levying men to provide a certain number of days of labor.

In New England particularly, they adopted a version of the English turnpike; mostly a community would seek a charter for a turnpike, raise money, build the road, and charge tolls to through travelers. While the locals were supposedly subject to the tolls as well, everyone knew how to avoid them. In almost all cases, the turn pikes lost money, but as the businesses were willing or forced to buy bonds to promote business, the money they lost on the bonds was recouped in income.

In NH, we still use this model, building toll plazas to extract taxes from through travelers to pay for roads to benefit NH residents and businesses. For the most part, the tolls are placed to limit the taxation of NH residents.

I imagine in the South, the ability to use slaves, or until about WWII, arrest the poor on trumped up charges, and press them into slavery, did a great deal to avoid levying taxes uniformly, but losing your freedom to labor for the state seems like a high tax.

And the real Americans were levied a 100% confiscatory tax on their property, which was then used to fund pubic works. Estimates of 25 million acres given to the railroads to build rail service into communities are certainly of the right scope, and someone was taxed so the government had that land to grant.

Yeah, let's return to that low tax 19th century, but whose lands are be going to confiscated to fund government? White men? Catholics? Texans? Liberals?

Steve Roth writes:

I discern an underlying premise in your points (and in libertarianism in general), a premise that I think is false:

The only restrictions on freedom/forms of coercion are in the form of taxes and laws imposed by government.

When in fact, the native, emergent properties of an economic system -- even a government-free system -- can exert significant coercive forces on individuals.

Not at all to argue against free trade, but as an example: if a country's unfettered free trade policies result in a given industry disappearing from that country, workers in that industry are coerced into changing to a different trade, or having to move away from their home, where all their friends and family may have lived for generations.

Yes, ultimately that coercion is in the form of physical coercion by government -- the sheriff physically evicting you from your house or repossessing your car -- but:

1. I think few libertarians would argue against government enforcement of property rights.

and

2. This argument confuses proximate and ultimate causes.

Steve Roth writes:

So, if women wanted to live stable, prosperous lives within the gilded-age system, they had to sacrifice significant freedoms, such as the right to work after marriage and childbirth. The *economic* coercion was profound.

rk writes:

Steve Roth: "Not at all to argue against free trade, but as an example: if a country's unfettered free trade policies result in a given industry disappearing from that country, workers in that industry are coerced into changing to a different trade, or having to move away from their home, where all their friends and family may have lived for generations."

So if I decide to buy a muffin instead of fruit at Starbucks, I have coerced (in my small little way) the wheat farmers into planting new crops? What?

I'm pretty sure Rothbard talks about this in Anti-market ethics. When I refuse to continue to make a voluntary exchange with you, and that forces you to make a different exchange with somebody else, that isn't coercion. It's the end of our mutually agreed upon exchange. You're using the word coercion equivocally.

What is coercing people into finding new work is NATURE, not MAN. Man must produce in order to live - if he finds himself in an unproductive endeavor, all else being equal it is nature that "coerces" man into finding a new job. Assuming he acquired his job on the free market, the only thing that has ended was the voluntary exchange, the "force" comes from him reverting to a default state of nature which compels him to produce to live.

So then what libertarians mean by coercion is the violation of property rights by another man. Terminating an exchange according to contract is not a violation of property rights, therefore it is not coercion. I hope that is clear.

Tracy W writes:

Steve Roth - equally, the laws of physics can exert significant coercive impacts on individuals. As anyone who has slipped on ice knows. And beyond physics, there is the weather, lethal viruses and bacteria, and etc.

You also don't mention that a free-market economy offers the least coercion of any economy I know about. Subsistence and hunter-gatherer economies leaves people at the mercy of the weather. Controlled economies can't let people pick what goods they want to buy or not. Protectionist economies coerce people who wanted to buy the imported goods, and the ones who want to make goods for exports. Am I missing something?

Furthermore, as a matter of practice, free markets tend to generate the wealth and innovation that allows us to reduce the amount of coercion from the natural world - eg easily-available antibiotics, vaccines, central heating, cheap transport for when local crops fail, etc.

So if you are a person who is concerned about coercion, then a free-market is probably about the best you can do to minimise economic and natural coercion. Which tends to lead the focus on to lowering levels of government coercion.

Incidentally, marriage didn't necessarily lead to a stable prosperous life in the 1880s. For a start, there was the risk of childbirth. Then husband could turn out to be a drunkard, or his business could fail, or he could desert you, or he could die, or he could decide to emmigrate. I'd say the best way to a stable, prosperous life for a woman in the 1880s was to have parents who would train you in a useful career and provide some starting capital, and then stay single and childless with your own business.

Scooby Dude writes:

"1. Taxes were much lower and economic regulation much more limited, so all else equal, men and women were much freer than they are today."

It is a cultish modern affectation of the Republican movement to view restrictions on economic freedom as greater restrictions on overall freedom than restrictions on personal freedom. The freedom to cohabitate. The freedom to have interracial relationships. The freedom to be gay. The freedom to go to the finest institutions of higher learning (which were male-only at the time). The freedom to vote. The freedom to not be a slave regardless of race. These are not fundamentally economic restrictions. They are far worse. An order of magnitude worse.

And I fully believe you to know that. I don't think you would really want to live under the government you espouse.

pinky writes:

I am a female Ivy League-educated engineer. I have a job I love working as a computer programmer alongside men. I have travelled all over the country and Europe on my own, driving my own car. I am allowed in libraries, pubs, and courthouses. Both men and women take me seriously when I speak with them. I can vote.

You are vastly underestimating the effect of social, political, and professional freedom on women's lives.

Byomtov writes:

Taxes were much lower and economic regulation much more limited, so all else equal, men and women were much freer than they are today.

Nonsense. Complete nonsense. What difference does it make to women what taxes are if they have no property or independent income? Is the woman of 2010, free to pursue a lucrative career but having to pay 2010-level taxes really less free than the woman of 1880 who has no such career options, but wouldn't have to pay much tax if she did?

And what about regulation? The industrialist was free to dump crap in the water and air, thereby stealing from the general population, but that's a free society?

Marriage was voluntary, and voluntarily-accepted constraints do not infringe liberty, so appearances notwithstanding, married women were as free as unmarried women.

"Voluntarily-accepted constraint?" What options did women have other than marriage? Could they enter the professions, become investment bankers, entrepreneurs, etc.?

To argue that a constraint is "voluntarily accepted" and therefore irrelevant to liberty without taking into account the alternatives to accepting the constraint is ludicrous beyond belief. Or maybe dishonest. It is interesting that you rely on "social reality" (in an earlier post) to argue that the restrictions on married women were less than they might seem, but don't acknowledge that the same reality refutes your claim about unmarried women.

Amy writes:

Wow. I could write a book in response to this. The way you absolutely ignore the experiences of women in the 1800's is amazing and very sad.

You apparently do not understand power imbalances. If a woman has no power, legally or economically, she cannot be free. If her husband legally owns her and her body, she cannot be free. You argue that the laws didn't really matter. If there is no way to legally enforce your rights, they mean nothing. I don't understand your denial of that and I don't understand how you could believe that women were free under that system.

The fact that many women were happy and had happy marriages doesn't change this. Women have been happy and had happy marriages throughout history. That doesn't mean that they were free to live the life they wanted to live. Indeed, many never imagined a different life because marriage was the only option open to them.

I also want to point out a few examples of the casual sexism of your piece:

The first word in the previous discussion of freedom of contract - Women could "complain" if their husbands entered into a contract they didn't agree with. The problem of men doing what their wives didn't want them to do - "domestic discord." How powerful these women are.

Please read a few books and learn some history and perhaps review an actual experience of an actual woman in the 19th century. And then when you see how blind you are write something showing it. Thanks.

Sccoby Dude writes:

I might add that wife-beating was legal then, as well. So that was good news for women's freedom, right Caplan?

axbat writes:

God, I don't even know why people are trying to argue with you. Your whole argument is beyond nonsensical. Made for a good laugh, though.
(Apparently the measure of freedom is taxes, I wasn't aware of that, lol.)

Chris writes:

"1. Taxes were much lower and economic regulation much more limited, so all else equal, men and women were much freer than they are today."

But all else was NOT equal. Not by a longshot. This sentence strikes me as similar to saying "Bob did not have a hangnail on February 4th, 1989, therefore he was in much less pain than he is today," while ignoring the fact that on that date Bob had a sword sticking out of his stomach.

"2. Unmarried women had virtually the same rights of property and contract as men, so they were much freer than they are today."

Yet again you give absolutely no contrast to make this statement logical. Do unmarried women today NOT have the same rights of property and contract as men?

The other points have already been thoroughly dismantled. Not that you seem to notice--you continue to obliviously insist that your arguments have been "misunderstood," yet you keep making the same basic logical errors that you have been criticized for over and over again.

The Dirty Mac writes:

Let me tell you something, I would take the pre-Bush era back right now. The infringements on personal liberty since 1/20/01 (or maybe more specifically since 9/11) are so numerous that its absurd. Obama is a continuation.

Chris writes:

I wonder what Bryan Caplan would think about the TV show "Dollhouse." The premise is that people "volunteer" to sign away their right to free will and even free thought, allowing a corporation to literally control their minds and change their memories and personalities before renting them out to wealthy clients for sex, companionship or criminal activity. Of course, the show revealed that this was never actually entirely "voluntary," and one of the morals was that "consensual slavery" is a complete contradiction of terms. But by the logic of this article, it sounds like the Dollhouse might be considered a Libertarian Paradise of freedom to Bryan Caplan.

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