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.

And in fact, we have to acknowledge that the overwhelming majority of women in 1880 would be positively horrified by the prospect of living my life.  Not only is it flagrantly immoral, it violates much of what they themselves thought of as the core of womanhood.  Should we get excited about women being denied the right to go to medical school, who did not want to go to medical school?  I mean, I suppose in some sense I'm being "denied the right" to move to Saudi Arabia, but I don't think we can count this as a meaningful infringement of liberty.

But in the case of the laws of 1880, I believe that yes, we can count them as serious infringements. 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.  Moreover, those laws would be harmful in any 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.