What is this constitutional catch-all? The free-speech clause.

The Supreme Court’s current law of free speech will perplex the ordinary American. After all, changing sex, making a cake, burning the flag, dancing nude, and contributing money have little in common, least of all speech.

The imperialistic expansion of free speech would not just surprise most 21st-century Americans; it would also make little sense to the 18th-century Americans who ratified the First Amendment. They would find it astounding that the courts have not just read speech to include many forms of conduct, but also have failed to establish any objective test for what constitutes speech. The Supreme Court appears to apply the perpetually malleable standard that emerged when it has sought to identify obscenity: It knows it when it sees it.