Robert Cruickshank at Caltics posts about the Proposition 8 controversy, and in the process reveals why at least the next few years will be contentious. Most of the discussion there and elsewhere around the blogosphere has to do with technical details of the jurisprudence, but at the end of his piece Cruickshank says
In American constitutions, at least until the present day, the power of the people has been limited and bounded to ensure that all rights are protected.
In a word, bullshit — at least from the classical liberal or modern conservative point of view.
The Constitution of the United States, at least from its original conception, is not, repeat at the top of the lungs NOT, about protecting rights. It delimits and specifies the powers of Government. The Founders and Framers had to be talked into adding the Bill of Rights, because in their view a Government of strictly limited and enumerated power would not have the ability to trample the rights of the People. The Bill of Rights simply adds heft to that; it is a list of those rights of the People which were, in the view of the Framers, most likely to be encroached upon by Government, with specific prohibitions against Government’s doing so.
Progressives, of course, are all about “rights” because they want to trample them flat in order to award privileges (miscalled “rights”) to the people they putatively mean to benefit. It is impossible to provide a “right to food” without destroying the food-producer’s right to the fruits of his labor. That is why they want the Constitution to be about “rights” — it means they are free to add or subtract as they will. In this case, they wish to use the Sword of the State to force society to accept a new definition of a word that has meant much the same thing since humans began to use words.
There’s no predicting any more what any Court will say, because the original principle of the Constitution has been tossed in the shitter, and all that’s left is competing arguments about “rights” that depend entirely on the individual situation. If Proposition 8 had gone the way Cruickshank wants there is no way it would have been challenged; since he and his fellows don’t like the way it came out, they seek to overturn it by judicial fiat. Along the way they sneer at the California initiative-and-referendum process, which (again) would not have been called into question had the Proposition failed.
They might actually have better luck challenging initiative-and-referendum itself as a violation of the United States Constitution. As an example of direct democracy, it is at least possible to argue that initiative and referendum violates Article 4, Section 4: The United States shall guarantee to every State in this Union a Republican Form of Government…