Our Common Good


The chunk about Tyler Cowen can be read at the link. I felt this point was more interesting:

This bit from Dahlia Lithwick’s piece caught my eye:

During the floor debate on Tuesday, Del. C. Todd Gilbert announced that “in the vast majority of these cases, these [abortions] are matters of lifestyle convenience.” (He has since apologized.) Virginia Democrat Del. David Englin, who opposes the bill, has said Gilbert’s statement “is in line with previous Republican comments on the issue,” recalling one conversation with a GOP lawmaker who told him that women had already made the decision to be “vaginally penetrated when they got pregnant.” (I confirmed with Englin that this quote was accurate.)

That notion “once-probed, always-probed” sounds an awful lot like the notion of implicit sexual consent that dates back to the 18th century and that justified marital rape in this country until the 1980s. As I write in my book:

Until 1980, for example, it was legal in every state in the union for a husband to rape his wife. The justification for this dates back to a 1736 treatise by English jurist Matthew Hale. When a woman marries, Hale argued, she implicitly agrees to give “up herself in this kind [sexually] unto her husband.” Hers is a tacit, if unknowing, consent “which she cannot retract” for the duration of their union. Having once said yes, she can never say no. As late as 1957—during the era of the Warren Court—a standard legal treatise could state, “A man does not commit rape by having sexual intercourse with his lawful wife, even if he does so by force and against her will.” If a woman (or man) tried to write into the marriage contract a requirement that express consent had to be given in order for sex to proceed, judges were bound by common law to ignore or override it. Implicit consent was a structural feature of the contract that neither party could alter. With the exit option of divorce not widely available until the second half of the twentieth century, the marriage contract doomed women to be the sexual servants of their husbands.

Resonances like these are why I sometimes suggest that modern conservatism is just a neoliberal gloss on medieval domination.