There’s been a lot of pushback against my claim that women were freer during the Gilded Age than they are today.  I’m standing my ground.  Replies to leading criticisms:

1. I’m ignoring marital rape.  To be blunt, this issue is almost entirely symbolic.  While it’s a heinous crime, I seriously doubt that more than a small fraction American women in 1880 worried about being raped by their husbands.  And even if I’m dead wrong, the modern U.S. is scarcely better.  Marital rape is now illegal in all 50 states, but it’s rarely prosecuted and leads to very few convictions.  Marital rape convictions are so rare, in fact, that I couldn’t find any statistics; if you know of any, please post them.

2. Cohabitation was illegal too.  As Andrea argues in the comments:

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.

If cohabitation was vigorously prosecuted in 1880, this argument would be fairly convincing.  But as far as I can tell, it was not.  The only prominent examples of 19th-century enforcement on google were thinly-veiled attacks on Mormon polygamy.  The laws might not have been as irrelevant as they are in modern Virginia (where they’re still on the books!), but even in 1880, they made little difference.

3.  You couldn’t contract around the contracting rule.   As my old friend Jacob Levy puts it:

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.

This is a good example of the difference between the law and social reality.  If a women in 1880 wanted to write a contract, I think she did the same thing a woman in 2010 would do – talk about it with her husband.  If he refused, she did the same thing she’d do today: complain, argue, bargain, etc.  A man in 1880 was legally allowed to make a contract without his wife’s approval, but in practical terms, his problem was the same as it is today: If your wife puts her foot down, it’s almost impossible to move forward.

In a similar vein, suppose a women in 1880 told her intended husband that she planned to keep working after the wedding, keep her income for herself, etc.  If he later changed his mind, what could he actually do?  About the same thing he’d do today – complain, argue, bargain, etc.  If you want me to believe that coverture reduced women’s freedom, I want evidence that more than a handful of husbands in this situation turned to the law to extract their wives’ obedience.

4.  This brings me to Jacob’s other argument: I’m underestimating the power of the law. 

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.

“Might not matter in entirely happy and consensus-based marriages”?  This strikes me as a severe understatement.  I say the law is usually irrelevant in unhappy and conflictual marriages, too.  Unless you’re already on the verge of divorce, invoking the law just isn’t a very useful way to win a fight with your spouse.  Since divorce was much more difficult in the 19th century, the law probably mattered even less than it does today.

Jacob goes on:

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

Once again, the key question is the extent to which these laws were enforced and changed behavior.  How many Gilded Age women were actually prosecuted for fornication?  Laws against contraception and reproductive education were probably a bigger deal, but it’s still easy to exaggerate their impact on women’s freedom.  How many young women in 1880 didn’t know how to avoid pregnancy?  How many actually would have used the crummy contraceptives of the time even if they were perfectly legal?

5. General complaints about libertarianism.  Many of my critics bring up standard complaints about libertarians ignoring social pressure, discrimination, etc.  I’m afraid I’m just going to give stock libertarian replies: (a) There’s a fundamental human right to non-violently pressure and refuse to associate with others, and (b) Market forces have a strong tendency to weed out discrimination.  I know that non-libertarians won’t be satisfied, but the point of my post was to show that women had more libertarian freedom in 1880 than they do today, not convert skeptics to libertarianism.