The Decline of Coverture
By Bryan Caplan
Most discussions of coverture that I read mentioned that the doctrine was gradually watered down throughout the 19th-century. Since I couldn’t easily find legal details, I decided to take the harder road and offer a qualified libertarian defense of coverture. According to my friend and co-author law professor Ilya Somin, though, by 1880 coverture was already basically dead. So even if you don’t buy any of my main arguments, my conclusion about women’s liberty during the Gilded Age still holds. Reprinted with permission from an email he sent me:
BTW, regarding your post on women in 1880, by that time couverture had largely been abolished in the US, and most states had enacted married women’s property laws which enabled them to own property independent of their husbands. I wrote about this here.
Where women circa 1880 WERE unfree from a libertarian point of view was with respect to occupational freedom. Many states had laws forbidding women from becoming doctors, lawyers, etc., and the Supreme court said that such laws were constitutional in 1873. However, as a practical matter, these laws might have constrained the options of only a small minority of women, as they applied primarily to professional occupations that very few women (and not many more men) could acquire the educational credentials for at the time. In the late 19th and early 20th century, many states also began to enact maximum hours and other occupational restrictions that constrained women in working class jobs, but I don’t think there were yet many such laws in 1880.
Update: Ilya asked me to append the following qualification:
The e-mail that Bryan quotes was written in haste and not as clear as it should have been. I meant to say that, by 1880, most if not all states had abolished coverture in so far as it prevented married women from owning property and entering into contracts independently of their husbands. These were by far the most important elements of coverture from the standpoint of restricting libertarian freedom. Some other aspects of coverture persisted on into the 20th century (for example limits on the ability of spouses to sue each other for torts), with considerable variation between states.