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.