Even more of that discussion I can’t believe we’re having. Here I’ll argue that a strict, property-and-contract-only libertarian should still detest the nineteenth century. On his own terms.
Yes, coverture harmed married women. If you’re a feme covert, your husband takes possession of all of your property and all of your wages. (There was considerable variation here over time; Michigan only allowed married women to keep their own wages in 1911.)
The husband makes every legal decision for you, including your place of domicile. He makes every business decision for you. If he doesn’t sign your contracts for you, you are out of luck. If someone wrongs you, you can’t sue in your own name. If your husband doesn’t want to sue, then you are also out of luck. Forget about suing your husband, because that’s almost never allowed.
Want to avoid coverture? Well… you can set up a married woman’s property trust. A male trustee takes legal ownership of your property. Better hope that you can afford it, and that your trustee is honorable, and that your contract is well-written. If so, you can take assets out of the trust for your own use.
But courts can still second-guess your decisions. After all, you’re a married woman, and you might really be under your husband’s thumb. Can’t be too careful! See Jaques v. Methodist Episcopal Church.
What about the other legal disabilities of coverture? You can’t get rid of those. I’m sorry. No contracts, independent loans, legal standing, pay in your own name, or any of the rest. Not ever. (This is my biggest single problem with coverture, as I’ve already explained. I don’t think the state should inflict this kind of disability on anyone, not even if they profess to be willing.)
Want to avoid domestic violence? Well into the twentieth century, the laws against assault were very unevenly enforced, with the effect of sheltering husbands who beat their wives.
Want a divorce? You have to show cause — a boon to the prostitutes, who helped a lot with ad hoc charges of adultery. Also: In a typical 19th-century divorce, neither party could remarry during the life of the other, not even if both were willing to allow it. No, you can’t write a prenup to get around these provisions.
Want custody of your kids? The law presumes they belong to him. If he feels like it, he might let you have them.
Don’t want to get married? Cohabitation is illegal.
Want to be single? Plan to be chaste. Birth control is illegal. So is writing about it.
Want to practice law or medicine? Sorry, that’s also illegal. The professions commonly excluded women; the Supreme Court blessed this in 1873.
Everything so far has been a matter of purely negative liberty, the kind of liberty that even “thin” libertarians like Bryan Caplan ought to care about. In each case, the law interfered directly with a woman’s sheer right to be left alone or to cooperate with other willing people on actions that didn’t harm anyone else.
I’m not a thin libertarian; besides contract, property, and the rule of law, I also value the presence of genuine economic opportunity, a cosmopolitan culture, and a fairly permissive set of social mores. That makes me a “thick” libertarian.
Yet I think that these positive liberties are best obtained by protecting negative liberties. Nineteenth-century women are a good example of why I think this way. Consider:
Want to go to college? Many of the best universities don’t admit women. Why should they? It’s not like they could practice a profession.
Now, I understand that Bryan believes private discrimination to be politically unimportant. We might disapprove of it personally, but the state shouldn’t try to stop it. Me? I look at Harvard discriminating and I see the logical consequence of a whole bunch of deeply misguided law.
Want to start a business? That’s nice. Who will trade with you when they know what the law is like?
Want to live alone? Good luck finding a landlord. Many won’t rent to single women. Can you blame them?
Want to find a job? Employers don’t like to hire women. Again, can you blame them? Maybe a little, but the law being what it is, you can also understand why.
Who writes these laws? Men, of course. Women can’t vote. They can’t serve on juries. They can’t hold political office or even many civil service jobs. Which makes the stuff above probably the least surprising result in all of political science.
To sum up: If I were a woman, I’d happily pick the taxes and regulations of today. Not despite my libertarianism, but because of it. Even as a man, I’d still pick today’s system. It’s terrible to be a slave, but it’s contemptible to be a master.
What would happen today? Suppose the state offered coverture today — just as one option among many. Would women take it? (Would men?) I suspect almost no one would.
Why then did women take it in the nineteenth century?
Simply put, all of their other life choices were a whole lot worse in terms of subjective utility. That doesn’t make coverture right. It just makes the nineteenth century an awful place to live.
Political theorists like to distinguish between negative and positive liberties with exceeding fineness. But ordinary people readily trade the one for the other, especially in desperate straits, and they don’t make any fuss over the theoretical distinctions. When your options are…
- food on the table, and you’re not a person in the eyes of the law; or
- starve to death while pounding the table about self-ownership
…it’s obvious how most people are going to break.
Today, however, women have a lot better options. They can get a decent education, even an elite one. They have their pick of careers. They can serve in the military. They have essentially equal access to the legal system at all stages of life. Heck, they can suckle at the teat of the welfare state from cradle to grave — and even that beats what economic opportunities they had in the nineteenth century. It also makes coverture totally useless at the only thing it was ever any good at: saving women from needless starvation in a thoroughly rotten social system.
Some further reading:
Stephanie Coontz, Marriage, a History: How Love Conquered Marriage. Penguin: 2005.
Nancy F. Cott, Public Vows: A History of Marriage and the Nation. Harvard University Press, 2000.
Joanna L. Grossman and Lawrence M. Friedman, Inside the Castle: Law and the Family in 20th Century America. Princeton University Press, 2011.
Hendrik Hartog, Man & Wife in America: A History. Harvard University Press, 2000.
“The Impact of Michigan’s Common-Law Disabilities of Coverture on Married Women’s Access to Credit,” Michigan Law Review 74(1), 1975. Reviews the abridgement of economic liberty under coverture and notes that even in the mid-1970s, remnants of coverture prevented women from obtaining credit in their own names.
Betsey Stevenson and Justin Wolfers, “Bargaining in the Shadow of the Law: Divorce Laws and Family Distress,” Quarterly Journal of Economics, February 2006.