The Supreme Court versus Common Sense
For many years, Americans who love this country and revere the Constitution have longed for a Supreme Court dedicated to upholding the Constitution.
Instead, year after year, America and the American idea have been under attack by the Court. The attacks have been getting closer and closer to home. In Kelo, the Court did the unthinkable: it ruled that you don't really own your own home, ruling that the government can take your home from you against your will in order to make way for development that will bring it increased tax revenue.
A constantly renewed majority on the Court has made it clear that it does not share your understanding that the Court exists to protect our rights as American citizens against government's natural tendency to overreach and deprive us of our rights. Instead, the Court regularly rules in favor of governmental overreach. The recent DACA ruling is only the latest in a long series of rulings making the interlocking elites in the bureaucracy and the Judiciary the supreme power in what was once a nation of self-governing citizens.
But in Bostock, the Supremes broke new ground. The Court's majority, already at war with the Constitution, declared war on plain common sense, ruling that boys can be girls and girls can be boys. A boy who "identifies" as a girl is a girl — so says the Supreme Court. Its ruling also means that every aspect of your life that was based on our common sense understanding that there are two biological sexes is now up for grabs.
That means you are now at risk. You are now required to try to live in ways that violate a self-evident truth of common sense. That is difficult enough, but the challenges don't stop there. Bostock has opened up a Pandora's box of future rulings. With common sense out the window, even the sky will not be the limit from now on. You are required to try to guess what you need to be doing now so as not to put yourself at risk of getting athwart of the Court's future rulings with regard to your legal obligations regarding the sexes and sexual identity.
How did we get here? For the last century, there has been a concerted effort to delegitimize the American Founding. That campaign originated on American campuses but now has spread far and wide. Today, elite opinion in America believes the Founding was fundamentally flawed and that the system the Founders designed needs to be fundamentally transformed. This is well known. What is not so well recognized is the connection between that campaign and the campaign to delegitimize common sense, which has been going on at the same time.
The attack on common sense in America is an attack on the foundation of the American Founding. The Founders quite explicitly put their faith in the common sense and the moral common sense of the American people. According to the Founders' vision, we rule ourselves by means of agents we choose in elections. The common sense of ordinary Americans replaced the divine right of kings. Louis XIV said, "I am the state." In America, according to the Founders' vision, the people are sovereign and we rule ourselves. The common sense of the American people is the foundation of the Founders' system.
The Founders understood that there might eventually come a time when what they had accomplished was no longer understood. Little more would be required than a failure by one generation to pass the understanding on to the next. But I believe that the possibility that common sense and moral common sense could be overthrown to the extent they have been in our time would have been for the Founders beyond imagining. No wonder, for accomplishing that overthrow has been an enormous task. Proponents of the irrationalist doctrines — romanticism, Hegelianism, Marxism, progressivism, existentialism, postmodernism, and all the rest — which came on in wave after wave after the era of the American Founding have been pounding away at common sense for a very long time.
Once upon a time, common sense was the foundation of an American college education. Common sense realism was the philosophy young Americans learned in college. In the words of the American historian Arthur Herman, "Common Sense Realism was virtually the official creed of the American Republic."
According to the American historian Allen Guelzo, American professors continued to be common sense realists until a political revolution in academia around the beginning of the 20th century pushed them out, ending an academic tradition that from the time of the American Founding meant learning to think like an American.
That the pivotal role of common sense realism in American thinking is today unknown to most Americans is testimony to the astonishing success and thoroughness of that campus revolution. That the Supreme Court can now arrogantly dispense with common sense in its rulings makes clear just how far America's ruling elite is willing to take the post-common sense education America's elite universities provided them.
Robert Curry serves on the Board of Directors of the Claremont Institute. He is the author of Reclaiming Common Sense: Finding Truth in a Post-Truth World and Common Sense Nation: Unlocking the Forgotten Power of the American Idea. Both are published by Encounter Books.