SydB asks a fair question:

confused. The conclusion that “women had more libertarian freedom in
1880 than they do today” is argued by only looking the law or situation
in the 1880s.


That’s like saying “man A is thinner than man B because man A weighs 150 lbs.”

Where’s the comparison? Did I misread something?

At least for libertarians, the massive liberty advantages of 1880 were (a) much lower taxes, and (b) much less economic regulation.  I’d particularly emphasize free immigration.  Even the Chinese Exclusion Act wasn’t passed until 1882.

Zac faults me on marital rape:

Bryan, I know you asked for conviction rates, but a cursory search
reveals some incidence rates which might have to be good enough. “An
analysis of data from the National Violence against Women Survey,
sponsored jointly by the U.S. Departments of Justice and Health and
Human Services and the Centers for Disease Control and Prevention,
estimated that 1.5 million women and 834,700 men are raped and/or
physically assaulted by an intimate partner each year. Of all surveyed
women age eighteen and older, 1.5% said they were raped and/or
physically assaulted by a current or former spouse, cohabiting partner,
or date in the year preceding the interview, compared to 0.9% of all
surveyed men. Of the women, 7.7% reported being raped by an intimate
partner at some point in their lives.”

Two key points:

1. While the survey you cite doesn’t break down the numbers, rape by all “intimate partners” – defined as “current or former spouse, cohabiting partner, or date” – is probably a lot more common than rape by spouse.

2. I asked for conviction numbers because I claim that modern legal changes had a trivial effect on marital rape.  However much marital rape impinged women’s freedom in 1880, there’s little reason to think it impinges it less in 2010.

Jacob Levy attributes a strange model to me:

As far as I can tell you’re offering a model of marriage in which, say,
ongoing adultery, or abuse, or sinking into gambling debt, or a husband
spending his paycheck on alcohol before he comes home to contribute it
to the household, are just impossible– unthinkable. Because, after
all, if his wife put her foot down, it would be impossible to move
forward on such behavior. But the rest of us know that such things do
happen in the world we inhabit– and that the willingness of women to
put up with them is affected by the terms on which divorce is
available. A woman who’ll lose everything in a divorce puts up with it
for longer. A man who’ll lose everything in a divorce is more
susceptible to having his behavior corrected by a credible threat.

No, Jacob.  I never said – and don’t think – that such behavior is “impossible.”  My claim, rather, is that there is a broad range of behavior within marriage where the letter of the law makes little difference.  For major decisions, couples usually seek each others’ permission, and when they don’t, the main threat isn’t legal action; it’s domestic strife.  For the extreme behavior that you mention, I agree that the divorce threat is important. 

Of course, in a regime where divorce is very hard to obtain, men and women can get away with much worse behavior.  But this just strengthens my point that looking at the letter of the law in 1880 doesn’t tell us much.  The law might say that a woman needs her husband’s permission to work, but he couldn’t easily divorce her for ignoring him.

rapscallion writes:

Libertarians are usually quick to point out that laws don’t have to be
enforced frequently to be very costly and substantially alter behavior.
E.g., a small number of antitrust prosecutions doesn’t imply that many
corporations aren’t being prevented from taking advantage of economies
of scale, imposing large costs. So the fact that cohabitation and
sodomy laws weren’t enforced often doesn’t appear to mean much by

I’m not one of those libertarians.  Yes, in pure economic theory, it’s conceivable that the absence of convictions shows that everyone is so terrified of the punishment that you never have to inflict it.  In the real world, however, the absence of convictions usually shows the opposite – that you can break the law with impunity.  If antitrust prosecutions (public and private) were indeed extremely rare, I’d conclude that the laws didn’t make much difference, and tell libertarians to allocate their mental effort to more important infringements of human liberty.  And that’s what I’m telling libertarians about Gilded Age laws against e.g. cohabitation and fornication.