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:
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: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".
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.
I will make two notes. (No doubt you yourself will come to have your own favorite moments.) First, a lot of the trouble here obviously rotates around the issue of systematic social oppression. Caplan barrels straight through like so: “there’s a fundamental human right to non-violently pressure and refuse to associate with others.” That hardly speaks to real concerns about violence. But beyond that Caplan doesn’t notice that, even if he’s right about this fundamental human right, he’s no longer even defending the proposition that women were more free in the 1880’s, never mind successfully defending it. He’s defending the proposition that there is a fundamental right, which can be exercised, systematically, to make women much less free, that was better protected in the 1880’s. So if women value this libertarian right more than freedom, they might rationally prefer that sort of society. But even so, they should hardly regard themselves as more free, for enjoying this right. Rather, they should regard themselves as (rationally) sacrificing liberty, a lesser value, for love of libertarianism, a higher value and separate jar of pickles altogether
J.S. Mill had some things to say on the subject. From On Liberty:
Like other tyrannies, the tyranny of the majority was at first, and is still vulgarly, held in dread, chiefly as operating through the acts of the public authorities. But reflecting persons perceived that when society is itself the tyrant – society collectively, over the separate individuals who compose it – its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practises a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself. Protection, therefore, against the tyranny of the magistrate is not enough; there needs protection also against the tyranny of the prevailing opinion and feeling; against the tendency of society to impose, by other means than civil penalties, its own ideas and practices as rules of conduct on those who dissent from them; to fetter the development, and, if possible, prevent the formation, of any individuality not in harmony with its ways, and compel all characters to fashion themselves upon the model of its own. There is a limit to the legitimate interference of collective opinion with individual independence; and to find that limit, and maintain it against encroachment, is as indispensable to a good condition of human affairs, as protection against political despotism.It is possible to object – I take it Caplan would – that limiting people’s rights to ‘act the tyrant’ in a collective, social sense, is illegitimate. But that is not to say that Mill is wrong about the ‘fewer means of escape, penetrating much more deeply’ bits. He obviously isn’t.
Now of course Caplan does dispute the ‘fewer means of escape’ bit, and in the most delightful way. “Market forces have a strong tendency to weed out discrimination.” It’s like the old cartoon with the two economists. “Hey look, $20.” “If that were really there, someone would have found it by now.” In this case: “Hey look, oppressed women in 1880.” Post title writes itself. As a method of doing empirical history, this leaves a lot to be desired, I should think.
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