... This is not the occasion to offer a bill of particulars about how constitutional law might change under this approach, but a few broad strokes can be sketched. The Court’s jurisprudence on free speech, abortion, sexual liberties, and related matters will prove vulnerable under a regime of common-good constitutionalism. The claim, from the notorious joint opinion in Planned Parenthood v. Casey, that each individual may “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” should be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after. So too should the libertarian assumptions central to free-speech law and free-speech ideology—that government is forbidden to judge the quality and moral worth of public speech, that “one man’s vulgarity is another’s lyric,” and so on—fall under the ax. Libertarian conceptions of property rights and economic rights will also have to go, insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources....
... The tragedy of Bostock is that, despite Justice Gorsuch's desire to practice an authentic textualism, he failed to provide that, just as previous Republican appointees Sandra Day O'Connor, Anthony Kennedy, and David Souter so often--and often spectacularly--failed to provide it. Such failures always wound the Rule of Law. Coming on top of so many other cases in recent decades, this one may finally discredit it in the eyes of many who have struggled to retain their faith in it.
... Historians may look back and judge Bostock the twenty-first-century analogue to Dred Scott, the Supreme Court decision that imposed the Southern slave regime on the entire country and contributed to the intolerable contradictions that led to the Civil War. Gorsuch’s majority opinion leaves no wiggle room. It ties affirmations of homosexuality and transgenderism to our most basic conceptions of equality. And it does so by denying that there are any moral, legal, or even metaphysical differences between men and women.
Our legal regime has repudiated the Book of Genesis and the scriptural account of God as Creator. This puts our law on a collision course with human nature. If we continue on this course, the word used to describe the legal and social reality of this collision will be totalitarianism.
I'm re-reading Libertas this evening, liberty, "praestantissimum naturae bonum", the highest good in the natural order.