The U.S. Supreme Court’s decision this week in Bostock imposes on Americans a rule of greater import than any ever asserted by any government. Its adoption into law of a meaning of the word “sex” that is at war with that of the dictionary, of biology, and of common use, and enlists the U.S. legal system against the way of life of most Americans. As a matter of law, the Bostock decision, like so many others since Dred Scott—e.g. Plessy, Lochner, Brown, Roe, Kelo, Obergefell—rewrites the Constitution and statutes to reflect the opinions of elites currently in power.
But even in Dred Scott, in which the court very broadly hinted that the Declaration of Independence’s word “men” did not apply to negroes and hence that they have no rights under the Constitution, it did not actually redefine that word.
Only in Bostock has the court taken the fateful step to assert that a common word, vital to social relations, can mean whatever anyone wants it to mean. And, having done that, the court takes the side of those who assert the primacy of will over nature.
Thus has the court removed the protection of the law from the way most Americans think and speak, making us liable to civil and possibly even criminal penalties. No totalitarian regime has ever explicitly mandated the meaning of words.
But the court’s decision changes the meaning of “sex” only to the extent that the rest of the country takes it as more than a particular case’s resolution.
Respect for the court is the only reason to treat its rulings as valid generally. But respect must be earned and can be squandered. That was the point of Alexander Hamilton’s Federalist 78 and of Alexander Bickel’s The Least Dangerous Branch six decades ago. The Supreme Court has done a lot of squandering. The proper response to a court decision that does not deserve to be followed comes from none other than Abraham Lincoln regarding Dred Scott: respect its holding in the case at hand, but reject root and branch the reasoning that would apply it beyond the case.
Lincoln pointed out that the court exists for the body politic’s health, not vice versa. Justice Roger Taney’s court had said that negroes “have no rights that the White man need respect.” In Bostock, Justice John Roberts’ court said that “sex” means anything that anyone wishes it to mean.
The U.S. legal system exists to enable ordinary human beings to deal with reality in its own terms, including that all humans are equally human, and that humanity consists of males and females. Today, what amounts to a decree henceforth to call men women and women men lest we suffer legal consequences deserves disrespect just as much as Taney’s implication that blacks are not human. Both propositions are patently false as well as dysfunctional. Why should anybody respect them?
Today, President Trump has as much right as President Lincoln to order the executive branch to disregard the court’s opinion—in this instance, to continue to use the word “sex” as the dictionaries and biology define it.
But the most authoritative reaffirmation of reality must come from Congress, by the votes of the people’s elected representatives. No one can predict how they will vote. And we can be sure that avoiding roll call vote on repealing or affirming a ruling on the meaning of “sex” is high on nearly all legislators’ priorities. But we can be just as certain that roll call votes, followed by primaries and general elections—that is, representative government—is the only manner by which cultural conflicts may be decided that may allow said political system to retain legitimacy.
In roughly two decades, America’s political system has burned through the legitimacy accumulated during the previous two centuries. There is precious little left.