A Few Late Words on the Coverture/Nostalgia Debate

Steven Horwitz

My very busy schedule at APEE prevented me from jumping in on the very interesting debate over women's liberty, coverture laws, and the more general status of human freedom over the last 150 years that was kicked off by David Boaz's column at Reason.  I can't possibly point to all of the contributions to the debate since then, but I particularly liked Will Wilkinson's contribution here and Bryan Caplan provides his usual contrarian perspective here, here, here, and here.

The brief recap:  Boaz argued that libertarians frequently make the mistake of being nostalgic about how free Americans were in, say, 1850 or 1880 and how the last 150 years has been a steady decline in human freedom.  The mistake, he argues, is that such comparisons seem focused on the experience of (property owning) white males and forget the ways in which blacks (certainly before the Civil War!) and women and other groups were denied important freedoms by the state.  In fact, Boaz argues (and with the support of libertarian historians, as opposed to economists), the last 150 years has largely involved an increase in human freedom when we properly account for the ways in which non-white, non-males have seen substantial increases in their freedom, even as all of us probably have less economic freedom than that select group of white males did in the past.  Boaz argued we need to stop engaging in the "decline of freedom" narrative as it's just not true when we take into account the enormous gains in freedom for these other groups.(For those who were at APEE, Yoram Brook engaged in precisely this rhetoric in his debate with Jim Otteson, at one point saying just how much freer we were in the 19th century.  It was all I could do to not interrupt him right there!)As Will put it:

"It’s just plain wrongheaded to cast the
libertarian project as the project of restoring lost liberties. Most
people never had the liberties backward-looking libertarians would
like to restore. I know the rhetoric of restoration can be very
seductive, especially in country unusually full (for a wealthy liberal
democracy) of patriotic traditionalists. But restoration is a
conservative project and liberty is a fundamentally progressive
cause."I'll put my own cards on the table by reprinting a comment that I made to a discussion on a libertarian professors' email list then adding some later observations below.  All are below the fold.

First the lengthy comment:

The way I see this is that we're trying to answer the question "Are we
more free?"  To do so, we need to address both the "we" and the "free"
pieces.  I read David as making two points:  1) We need to think
carefully about the "we" and recognize, as we all have noted, the major
gains in freedom for non-white, non-males (and maybe non-Christians
too).  2) But he was also saying there are more freedoms in the
calculus than the economic.  Even white men are freer along a number of
dimensions than they were in the 19th century, when one takes the
social realm seriously.  Some folks have noted those.

My own view is that one can look at this in the economist's old tool: 
the 2 x 2 matrix.  Apologies in advance for formatting issues:

                            economic freedoms        social freedoms

White men                notable losses            good-sized gains

Others                       huge gains                    huge gains

I think by any accounting, the NW quadrant is smaller than the sum of
the others.  We can debate over how much smaller, but if we could
somehow aggregate these freedoms, I think there's no question the total
amount of freedom per capita is bigger today than "before."

Let me add one other point that some have touched on:  not all
restrictions on freedom come from the state.  Just consider the immense
gains in freedom women have had because of the changes in the way we
view domestic violence and marital rape, not to mention the demise of
coverture laws.  The "rights" that men had over their wives
dramatically limited the freedom of women for centuries and the
inclusion of married women in the sphere of protection of negative
rights against coercion has been transformational in the last 100 plus
years.  I would put it only second to the end of slavery in terms of
total gains in freedom to the population as a whole. 

I could make a very similar point about the ways in which children have
been treated, and it's interesting that THEIR increased freedom has not
made an appearance in this discussion yet.  (Although one could point
out that the freedom of parents qua parents has fallen over the same
time.  Interesting to weigh that one.)

Any accounting of our increased or decreased freedom should also
include the ways in which "private" restrictions on freedom
countenanced by the state have dramatically receded.***And now an additional observation.  Bryan argues that women perhaps had more options in the past than we are willing to given them credit for and that the actual enforcement of the more draconian laws wasn't as severe as we might think.  I'm not convinced of that, but I will provide a tad of support for his second point shortly.First, whatever else we say, there is no doubt that women at the time perceived marriage to be a major loss of liberty.  I've been slowly making my way through Lawrence Stone's The Family, Sex and Marriage in England 1500-1800, which is an 800 page "magesterial" history of the family, rightly regarded as a classic in history, even as it has been at the center of much debate.  Stone's use of primary sources is amazing, and those sources make the case for liberty denied to married women.  Stone himself is very clear about the fact that coverture laws, and marriage more generally, denied married women important liberties and he gives no sense that such laws were not enforced.  And as a woman writing in the late 1700s wrote:"The two sexes seem to be very unequally situated in the marriage state.  The man only ventures the loss of a few temporary pleasures:  the woman, the loss of liberty and almost the privilege of opinion.  from the moment she is married she becomes the subjet of an arbitrary lord, who has her person, her friendship, her fortune, her time at his disposal.  Even her children, the pledges of their mutual affection, are absolutely under his direction and authority.  Severity of every kind is in his power, and the law countenances him in the use of it."It's true that these limitations were most constraining if the marriage was a bad one, but that doesn't mean they were not constraining at all otherwise.  And it's also true that this was late 1700s.  Coverture laws did begin to disappear through the 19th century, but as Ilya Somin makes clear in his email exchange with Bryan, even as the restrictions they imposed on property and contract disappeared by late in that century, other elements of coverture remained.  The degree of freedom gained depends on what the exact date of comparison is here.Second, Stone does, however, discuss at least one way that entrepreneurial women tried to get around these restrictions through something like a pre-nuptial trust. What women with the access to such knowledge and the resources to make use of the courts were doing was transferring their property to a "feoffee" before marriage.  Feoffees were something like a modern "trustee."  Moving legal ownership this way, but with a document drawn up that still enabled the wife-to-be to have access to the property, particularly should her husband-to-be die, assured that she would not have to give up all of said property upon marriage.  This was very clever, as Stone notes.  But he also adds: "For the vast majority of the population, including all the poor, the limited safeguards offered to wealthy women were unknown."  He goes on to endorse, in his own words, the observation of Mill (in 1869) that "the legal position of most women in England [was] one of total dependence on their husbands.  In terms of property, they could acquire nothing which did not automatically become their husbands'."For me, this is a no-brainer.  The last 150 years has largely respresented an increase in the total sum of human freedom in the Western world as the losses suffered by those who had such rights back then are dwarfed by the gains in freedom by those groups who had few or no rights back then.  This surely doesn't mean that we can't rightly protest the ongoing losses in economic liberty that we are all suffering, particularly in the last few years, but when looked at with the broader historical perspective, those losses are a small setback in what has largely been an expansion of freedom to more and more people, as well as an expansion of more kinds of freedom to even those who have lost some.  A nostalgic libertarianism will not get us very far.  A progressive libertarianism is not only a better strategy in a world where we need to expand our appeal beyond the very white males at the center of this debate, it is also true!  History has been on the side of freedom and its expansion to more and more people.  That's what progressivism should mean and we should rightly recognize that history and argue that this century's decline in economic freedom represents not the triumph of progressive ideas, but their slow demise.  Classical liberalism was historically about expanding freedom to more and more groups and modern libertarians should recognize our victories and frame our current battles in terms that put us on the side of forward-looking progress, not backward-looking nostalgia.