Academic journal article Independent Review

Liberty and Feminism

Academic journal article Independent Review

Liberty and Feminism

Article excerpt

What is the relationship between the stares of women and the cause of liberty in modern times? The very tone of the question may suggest the anachronistic nature of this article. After all, the major battles over the stares of women in the United States were fought long ago. They were, as it is sometimes difficult to remember, battles over civil capacity (for example, during the nineteenth century, the ability of married women to make contracts in their own right, to give evidence, to serve on juries) and over political capacity (for example, during the early twentieth century, the right of women to vote in political elections and to stand for office).

At the time, the resistance to these simple and self-evident claims was so great that in retrospect it is hard to fathom the political turmoil generated by such modest reforms. The strife was at least as great as the present-day contention over civil rights and affirmative action. Of course, the resolution of the major questions at issue by 1920 did not put an end to debates over the role and place of women in society. In this article I hope to give some sense of how the debate has progressed, and to indicate why the very arguments that rightly led to the legal reforms affecting the status of women during the nineteenth century militate against the demands for reform from the late-twentieth-century feminist movement. In stating this position, I do not mean to position myself in the vanguard of reaction. On the contrary, I believe that the progressive ideals of the nineteenth century remain just as progressive today.

The Basic Intellectual Framework

My political orientation is libertarian and laissez-faire, and the philosophical approaches I use to support that position are both utilitarian and consequentialist. These declarations require some qualification. In characterizing my position as libertarian and laissez-faire, I do not mean to embrace the smallest-government version of either philosophy. I consider indefensible the libertarian position that categorically excludes state provision of infrastructure and other public goods and condemns the use of the eminent domain power. The first task of government may well be to control the use of force and fraud, but the provision of public goods such as roads and courts requires the use of public power to assemble the lands and to insure open access. Taxation therefore becomes the preferred means for collecting revenue. That revenue, if spent ideally, would yield benefits to each person at least equal to the taxes paid. The eminent domain power could then be used to assemble parcels of land for common purposes in situations, such as highway construction, where individual owners have holdout positions that could block a project that serves the common good.

This reference to the common good suggests the utilitarian foundations of the system. I do not conceive of utility as a detached entity or ideal that deserves respect in and of itself. Utility does not hover above the crowd and eliminate the need to see the effects that social policies and the creation of legal rights and duties have on various individuals in society. On the contrary, my account of the common good is intensely individual. It seeks to recognize that any government scheme that limits or controls individual rights should work for the benefit of all people so limited. The common good is one in which all individuals share as individuals. It is not one in which the majority controls the fates of the political minority by political fiat. The key task of political institutions and political theory is to identify and secure rights that work to this common advantage. It is to allow the majority to govern the state but not to trample the minority.

Working out the issues set by this agenda can be difficult. The takings law is exceedingly complex even with respect to the condemnation of particular parcels of land. It becomes even more complex when one considers the state regulation of land use, intellectual property, and the various markets for labor and commodities. …

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