(Libertarian) Paradise Lost

As many of you probably know, Bryan Caplan, Will Wilkinson, and others have been debating whether there was a libertarian golden age, ca. 1880, to which libertarians would return if they could.  The "pro Golden Age" side notes low taxes and regulation; the "anti" side notes Jim Crow, anti-sodomy laws, and the substantially reduced rights of women.  For whatever reason, the debate has settled around the coverture laws of the period.Interestingly, this debate seems mostly to be taking place among libertarian men, probably because there aren't that many libertarian women.  But as one of the elusive creatures whose preferences are being discussed, I thought perhaps I'd weigh in.  Straight from the horse's mouth, as it were. First, let's point out that 1880 simply wasn't a libertarian
paradise--and neither was any other era in American history.  Yes,
commercial taxes and regulation were lower.  On the other hand--even
leaving aside the special rules for various minority groups and
women--we're talking about an era of school prayer, blue laws, various
gross infringements of economic liberty by state legislatures
cutting special deals for their friends, criminal punishment for union
organizers, high tariffs, and so on.  We're not arguing about whether
we want to be in libertarian paradise, or not.  We're arguing about
whether the departures from the ideal in 1880 were better, or worse,
than the departures today.If you are a white male,
probably--not definitely, but probably.  If you are black, the question
is ludicrous--you're talking about an era of legalized public
discrimination.  Likewise if you're gay, which was, as far as I know,
an actual criminal offense.  But what about white women?I think
part of the disconnect between Caplan and his interlocutors is that
Caplan is simply discounting all non-government forms of coercion.  So
the fact that in 1880 my life choices would have been marriage,
sponging off of relatives, or teaching, does not interest him.  Nor
does what that implies for the balance of power in marriages.  It is
not for nothing that so many passages written by women of the time
describe their husbands as "tyrants".Obviously, I find this a
tad more interesting than he does.  But it's a valid point:  to what
extent can you count social discrimination against the legal system? 
For liberals, the answer is "quite a lot"--if something is wrong with
the social system, the government should fix it!  But this is not the
default libertarian position.  But as Tyler Cowen has pointed
out, the laws of the time reinforced that social structure in many,
many ways.  Take divorce, which could only be obtained for cause.  Now,
as I understand it, if both parties wanted one, a "correspondent" could
be hired who would be caught with the man in a compromising position. 
But if he didn't want a divorce, well, what was she to do?  Divorce was
shameful--but a woman caught in adultery was a moral outrage.There
are also ripple effect.  If no one you know gets divorced, then it
becomes that much more unthinkable for you--especially since the social
system to deal with divorce won't exist.  There was no place in
American society of 1880 for a divorced woman, and that matters.Or
take the laws banning women from entering various professions.  Sure,
this only affected a small minority of the population . . . but ain't I
a woman?You cannot simply snip the legal system neatly out of
its social context.  Would I agree to bring back the laws of 1880
concerning women, in exchange for lower taxes and looser business
regulation?  No.  First of all, as imperfect as they are, many
of those laws are good libertarian laws, like the laws forbidding
people to dump any random chemical into the water commons.  Second
of all, even though the laws about emancipation, property and divorce
would have much less impact upon women living in the social structure
of 2010 than that of 1880, they would clearly and obviously change the
balance of power in my marriage and social life.  Not even a man as
unimpeachably committed to equality, in theory and action, as Peter
should be trusted with that kind of power over his wife.  And
third of all, the social system of today does not exist independent of
our laws.  If it were not illegal to pay married men more than women,
to discriminate against women in hiring, and so on, most of us might
still be stuck as secretaries . . . which would probably mean most
women still stayed home after they had children, and that the social
and economic networks supporting female independence would be
considerably weaker.  This is why I can't get all worked up about the
injustice of affirmative action.  Maybe it doesn't work . . . but even
so, it's still pretty low on my priority list of things to repeal.