Terrance Heath, responding to Conn Carroll's sudden, rubbery conversion to progressivism for short-term tactical gain, defends minority rights if not eloquently, at least earnestly. Kathleen Doty is more eloquent.

This morning, I can take no comfort in this system. A government that allows a bare majority of my neighbors to determine the extent of my rights as a citizen without limitation is not one that I stand behind. I want a constitutional process that establishes a floor that we can vote to expand upon, rather than a ceiling that we can vote to lower. While yesterday my personhood was fully recognized by the state, today, I am some fraction of a citizen. But I cannot give up hope. Through my tears, I see that a nation that can elect Barack Obama to the presidency can indeed make change. A legal challenge to Prop 8 is already underway, and it is my hope that reform of California’s (and many other states’) ballot initiative process will be forthcoming.

Firstly, constitutional republicanism doesn't favor one branch of government over another. The executive, legislature, and courts all have the means to enact policy and negate policy by another branch. What California's SC needs to resolve it seems, is if in California, referendums enjoy constitutional status above all branches on a state level. Furthermore, courts nationally should offer some guidance about the weight each branch carries, so that minorities can expect protection. Anything less is just mere democracy trending downward towards mob rule. Secondly, Carroll's quoting of David Bernstein's argument is hypocritical. When a conservative SC rules favorably on a partisan issue, it's a victory for either precedent or some interpretative principle, or both. The same triumphalism greets executive orders and legislation, never mind the propriety. It's usually the courts who have garnered maximum conservative animus since antebellum Civil War days. This is an opportunity for Californians to rethink referendums as a constitutional tactic. Faith in might, or King Numbers, is really no guide to the future, when events could suddenly cause 1% to change course. What really is the difference between 49.9% and 50.1% support? Not only should anti-Prop 8 forces lobby for marriage equality, but they should petition the court to tackle the issue of the constitutionality of referendums in general.

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