Women Had More Freedom When They Couldn't Own Property

There was a time when I was a libertarian, a long time ago when I was young and stupid. On the surface, it’s a seductive, simple idea: just get mean ol’ government out of the way, and then everyone can do what they want, man.

Of course, grow up a bit and you realize that mean ol’ government isn’t the only force keeping people from doing what they want, and indeed, mean ol’ government is sometimes the only thing that can give people a chance at what they want — public education, for all its troubles, is the greatest equalizer our society has ever created.

But that wasn’t the only reason I abandoned libertarianism as a philosophy. The other reason was that, quite simply, American libertarianism has a bit of a blind spot: it tends to forget that non-white, non-male people exist. This is why tea partiers — who cloak themselves in the mantle of libertarian rhetoric — can claim that we’re much less free now than we were when the founding fathers wrote the Constitution, ignoring the fact that over half of us couldn’t vote, and a huge percentage of us could be bought and sold.

To his credit, David Boaz of the Cato Institute recently wrote an article in Reason in which he took his fellow libertarians to task for failing to recognize these facts, for failing to recognize that while one can argue that white men are less free now than they were in 1776, it is ridiculous to argue that America as a whole is less free now, given that women, non-whites, and non-Christians all have more liberty today than they did at the dawn of the republic.

Now, I disagree with Boaz on parts of what he wrote, and agree with others — on the whole, it was pretty sensible — but I’m not going to get into his article. Instead, I want to talk about the reaction it engendered from Bryan Caplan, a self-described libertarian/anarchist professor of economics at George Mason University. (Yes, that’s a public university; why do you ask?)

Caplan responded that Boaz was mostly right, except about women. Women in 1880, you see, were totally free, or at the very least, a lot more so than they are today. Okay, maybe they couldn’t vote, but still….

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.

Well, yes, insofar as a radical libertarian would be perfectly happy with an essentially anarchist system, run by a benevolent dictator who only ran a police force that patrolled against violent crime. But here in the real world, where voting is a citizenry’s check on government operations, voting is a pretty big deal.

Of course, Caplan assumes that just because women couldn’t vote, that didn’t mean the government didn’t treat them as second-class citizens:

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?

Well, if you don’t count coverture, legal marital rape, draconian divorce laws, infidelity laws that punished women but not men, laws against contraception, a legally recognized system of bastardry, bans on cohabitation, a complete lack of any right of legal redress for damages against a spouse, or any of the other hundreds of laws and regulations that treated women and men differently, then no, I don’t suppose the American political system denied women rights. I mean, women had the right to breathe, for example. And eat, unless they were divorced by their husbands and cast into penury. But then, they had the freedom to starve! Liberty!

Caplan touches on coverture, and argues that women could get around it by signing prenuptual contracts. Cute, isn’t he? And stupid, since after marriage, the law gave men the right to change contracts entered into with their wives at a whim. Also, Caplan notes that women were totally free not to get married if they didn’t want to give up their right to make contracts or own property, which is a novel form of liberty that I don’t really understand as such.

Also, according to Caplan, modern marriages require give-and-take, which is exactly the same thing as a husband being able to forbid his wife to work. Because…something.

In closing, Caplan declares, “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.”

So, clearly, Caplan is a privileged fool. Only a man who has never for a second considered what it’s like to not be a man could write an article in which he declares that coverture is pretty much the same thing as fighting over the remote. And he ended up getting schooled by Will Wilkinson, who quotes Voltairine de Cleyre’s 1890 work Sex Slavery:

He beheld every married woman what she is, a bonded slave, who takes her master’s name, her master’s bread, her master’s commands, and serves her master’s passion; who passes through the ordeal of pregnancy and the throes of travail at his dictation, not at her desire; who can control no property, not even her own body, without his consent, and from whose straining arms the children she bears may be torn at his pleasure, or willed away while they are yet unborn.

Clearly, as de Cleyre so eloquently writes, women of the Gilded Age were not free in any way that anyone would define the term.

Now, Caplan had a choice. He could have admitted that he didn’t realize how robust the system of oppression was, how it worked so assuredly against women’s liberty, how it was, as Boaz rightly noted, proof that our nation’s past was not the libertarian utopia it is sometimes claimed to be.

Instead, Caplan doubled down, and wrote, if anything, a dumber article than the first:

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.

Wow. Yeah, marital rape: totally symbolic.

While it’s a heinous crime, I seriously doubt that more than a small fraction [sic] American women in 1880 worried about being raped by their husbands. And even if I’m dead wrong…

You are.

….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.

It’s rarely prosecuted! Few people are convicted! Therefore, the laws against marital rape don’t matter! Well, that’s a relief. Of course, I didn’t know that libertarians judged criminal laws on the books as irrelevant, you know, ever in history. Also, the whole paragraph is completely wrong on the merits, as partner rape is still a serious issue even with it being illegal across the country.

One shudders to think what the rate was when sex was considered a good wife’s duty, and she not only lacked the right to refuse, but had the affirmative duty to submit. But I’m guessing it was more than a “small fraction” of women who feared rape by their husbands. It still is today.

2. Cohabitation was illegal too. [...]

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.

In Minnesota today, marijuana possession has been effectively decriminalized; it’s a petty misdemeanor to be caught with a small amount, and police efforts generally go toward combating dealers. Marijuana use is not vigorously prosecuted in my state.

And yet no libertarian — indeed, nobody — would argue that this makes the statutes against marijuana somehow irrelevant. The product is illegal. People caught with it have to, at the very least, pay a fine. Moreover, the fact that it’s illegal gives police the right to use simple marijuana possession as a pretext to do more extensive searches of people.

The fact that a law is on the books is prima facie evidence of a restriction of liberty. Prosecution statistics are irrelevant; the law’s existence, by itself, has a chilling effect on behavior. This isn’t some kind of novel argument; this is a cornerstone of libertarian philosophy.

But to Caplan, libertarian philosophy can be ignored when we’re talking about women.

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.

This is, to put it mildly, as wrong as it can be. You want evidence that “more than a handful of husbands” turned to the law to control their wives? If even one husband turned to the law to control his wife, that’s proof that the system actively worked in a way that was injurious to liberty. When libertarians rightly note cases where cops raid a home by mistake, killing someone by accident, using the draconian anti-drug laws we’ve passed in the past few decades, nobody writes, “Well, show me more than an handful of people who’ve been killed by mistake, then I’ll believe you.” Even the handful is enough to prove the point, and a libertarian who viewed women as people would know that.

Caplan goes on, arguing that divorce laws only matter when a marriage is in imminent danger of dissolving (and ignoring that divorce laws in the 19th century were strongly tilted in a man’s favor), and that women’s liberties weren’t really affected by laws against fornication and contraception because, again, most women weren’t affected by them, and therefore none were.

This is, in a nutshell, the reason why I can’t be a libertarian. To be sure, there are libertarians who actually extend their belief system to all people. But too many men in the movement are concerned only with how laws affect white men like themselves.

The truth is that, in many ways (and the most important ways), we are freer as a society than we have been at any point in our history. Women have the right to work, to vote, to enter freely into contracts, to divorce their spouses on their own terms, to use (or not use) contraception, to have (or not have) an abortion, to marry (or not marry) as they see fit.

True, women today may pay a higher tax rate on their wages than they would have in 1883. But then again, women today can actually earn wages if they want to; it seems to me the latter is a bit more important to liberty than the former.

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21 Responses to Women Had More Freedom When They Couldn't Own Property

  1. 1
    Ola says:

    wow i find it amazing how he bends over backwards for the sake of his poor argument. This was great to read (it made me laugh, it made me cry)

  2. 2
    Dianne says:

    Whoa. If public stupidity were a crime he’d be going up for life without parole. Even if it were a misdemeanor. Whatever Caplan knows or doesn’t know about economics it’s clear that his ignorance of history is vast.

  3. 3
    chingona says:

    This is obviously stupid on a whole bunch of levels, but one more thing that’s kind of weird about it is that he seems to assume that relationships between men and women in, say, 1880, were exactly as they are today, except with a different legal backdrop. It seems to have not occurred to him that men and women today are significantly more likely to have an understanding of their relationship as a collaboration/partnership and treat each other accordingly precisely because the legal environment in which we operate changed, leading to changes in the social environment in which we operate.

    Look at how he assumes that a man in 1880 would talk to his wife before entering into a contract and says that since there would be an argument if he did something she didn’t like, that’s the same as him being able to actually prevent her from entering into a contract. First, they’re not remotely the same, but second, what on earth makes him think that most men operated as if they needed their wife’s permission? Why would they?

    Which, on reflection, gets at another beef I have with libertarianism – that it tends to assume that this or that phenomenon exists in a vacuum, instead of looking at things as connected to each other. Oh, like, the nice income I earned with my labor has no relationship to publicly funded roads, schools, etc., so taxes to pay for those things are a gross imposition on my freedom.

  4. 4
    FashionablyEvil says:

    I, for one, find the “Well, I don’t know any men who would abuse their (legally codified) authority over their wife!” to be a totally compelling argument about why such authority doesn’t really matter.

  5. 5
    FashionablyEvil says:

    Note to other potential readers of Caplan’s posts: Oddly, the comments on both of the posts are quite good. (I don’t tend to expect much from comment threads).

  6. 6
    CassandraSays says:

    This is a perfect example of how people stubbornly refuse to admit to being wrong on the Internet. I’m not convinced that he even truly believes he’s right, really – it reads more like he just doesn’t want to admit that he was wrong in the first place, because it’s intellectually embarrassing to have formed an argument and then have it pointed out that you left out relevant points. So people get defensive, and nonsense like this results.

    Not that I don’t agree with Jeff’s basic point – libertarians do in general suffer from the problem that their theory that the past was more free only applies to white men, and not even all white men.

  7. 7
    Myca says:

    This recent Crooked Timber post on the different sorts of libertarianism, feudalism, propertarianism, and slavery is quite good.

    —Myca

  8. 8
    Lis says:

    This man has clearly neither watched nor read Henrik Ibsen’s “The Dollhouse”. Or a history book.

  9. 9
    Dianne says:

    Ok, one thing I can’t figure out after reading the article (and I feel stupider just for having done s0) is what it is about modern life that is supposed to be so oppressive. How are modern women oppressed and why is that oppression worse than coverture, etc?

  10. 10
    Katie says:

    Also, from the bits that you quote, his argument is still racist as well as sexist, as it completely ignores black women. White women had a whole lot more privilege in 1880 than black women did. By then Reconstruction was basically over and Southern blacks were getting terrorized into submission by Southern whites.

    The few laws that gave white women rights still de facto didn’t apply to black women.

  11. 11
    Sebastian says:

    I agree with all the substantive stuff about women that you wrote here, but want to note that Caplan’s piece hasn’t gone over well in libertarian circles either (Will Wilkinson, Megan McCardle, and Tyler Cowen all spoke out about its ridiculousness and all of them are more prominent voices of a libertarian bent than Caplan.)

  12. 12
    Miriam Heddy says:

    Jacob Hornberger’s last paragraph in response to David Boaz begins with, “Notwithstanding slavery and other violations of liberty, our American ancestors brought into existence the freest society in history.”

    That “notwithstanding” is telling.

    I have yet to see any of these white, male libertarians consider the possibility that the lovely freedom of white men in American history came on the backs of those who weren’t free and that the freedom they nostalgically hearken for was, in fact, impossible to produce without the subjugation of those who weren’t equally free.

    If libertarians want to do more than earn the eye-rolling of feminists and those engaged in progressive, intersectional analysis, they’ll need to set aside the rhetorical “notwithstanding” and actually grapple with the ways that the subjugation of some men and women actively facilitated the freedoms enjoyed by others.

  13. 13
    Sebastian says:

    Miriam, Will Wilkinson just had a 4 or 5 post response exactly on that topic. And he is very much a libertarian.

  14. 14
    Myca says:

    Sebastian, would you say that it is generally agreed in Libertarian circles that American in the latter quarter of the 20th century was more free than it had been at at any time previously, and that it was specifically government action that made it so?

    If the answer is no, then that’s the blind spot we’re talking about.

    Now, maybe I’m wrong. Maybe the answer is yes, and Libertarians generally recognize that the civil rights act was awesome. That would be great.

    —Myca

  15. 15
    Sailorman says:

    They’re speaking a different language.

    It is possible to develop a philosophy of discourse which serves whatever purpose you want. So one could define “freedom” in a way that would allow you to refer to women as “less free” now, for example. This isn’t an unheard of tactic, and “special definitions” are used in modern political or philosophical approaches.

    But when you make an incredibly extreme set of arbitrary assumptions or an extreme set of definitions, then the resulting conclusions become less relevant to reality and common usage, if they’re even relevant at all.

    It’s just as if I defined being “well off” as “being tattooed,” so that a starving person with no money or property would be “well off” if she had tattoos. So long as you know my (odd) definition then you can understand what I’m saying, but my comments would have no meaning in the broader social sphere, where “well off” means something else entirely.

    So if they want to use a definition of “freedom” under which women were “more free” back then, that’s their right. It’s just that their definition makes the conclusion meaningless as applied to what WE call “freedom.”

  16. 16
    Myca says:

    They’re speaking a different language.

    Yeah, I think there’s some of that, Sailorman, but I also think that there’s actually a lot of disagreement among Libertarians as to what they mean when they say ‘liberty.’ In fact, I’ve got a post forthcoming on that very topic.

    —Myca

  17. 17
    mythago says:

    No, I don’t think Caplan is speaking a different language. He’s in love with the idea of the 1880s as a Libertarian paradise. Then he’s faced with the cognitive dissonance of reconciling that with the competing idea that it was very much not an era of freedom for women. The only way to resolve the problem is to attack the second premise – and he can’t do that without some truly stupid pseudologic. But from Caplan’s point of view that doesn’ t matter; all that matters is that he believes the 1880s was the perfect Libertarian era.

    Which all goes back to Boaz’s original article, and why Caplan (and some of his supporters) are perfect examples of what Boaz was talking about. When you make it clear that your political philosophy excludes the interest and well-being of others, how can you be genuinely surprised when those others do not rush to embrace it?

  18. 18
    Robert says:

    There’s a tendency among libertarian thinkers to be more strand-like in their understanding of historical context, while left thinkers are more cloth-like. IE, to the left thinker, the oppression of women and the freedom held by (white, rich) men are of a seamless piece; to the libertarian thinker they are two entirely separate things, and you can rejoice in the freedom without having to feel bad about the oppression.

    Which is “right” seems to me to depend on the exact situation. There are some freedoms which came at the cost of others’ oppression; it was great to be a plantation owner but obviously that was not a “free” society no matter how much freedom the plantation owners had. On the other hand, I can think of plenty of other scenarios where party A has it good, party B has it bad, but A’s happiness isn’t coming at the cost of B.

    It all depends. :)

  19. 19
    mythago says:

    to the libertarian thinker they are two entirely separate things, and you can rejoice in the freedom without having to feel bad about the oppression.

    “You” meaning “the libertarian who would have all the freedom, and none of the oppression”.

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  21. 20
    Jennifer says:

    In severe contrast to what rightwing libertarian claims to be about (individual freedom), built into its very structure of thinking is the paranoia that if women were in fact to gain more power in society, male power would be reduced. It’s no doubt the old right wing sore — the idea that women need “socialism” for their well-being, whereas men need it not — that festers here as one of the invisible supporting premises underlying the rightwing libertarian’s point of view. This either-or thinking is based on the antiquated notion that males and females have different “natures” — the former being robustly designed for Freedom Itself, whereas the latter is designed only for Socialism. So, “naturally”, freedom in its true sense — that is, individual freedom — can logically ONLY be male freedom, and is measured by the degree of social dominance that is obtained by males (i.e. in relation to nefarious female freedom, viewed as “socialism”.)

    What we have here is an inability of the libertarian concerned to be able to think in a different paradigm than those that were predominent in the 19th Century. The essentialisation of gendered “natures” is a thoroughly antiquated paradigm, which can tell us little about reality as it actually is.

    A failure of imagination; a failure of thought — not really freedom-inducing from what I can see.