Another excerpt, this one edited somewhat, from the In Re Proposition 8: Perry v. Schwarzenegger facebook dialogue.
Andy Westover then what is marriage? who defines marriage? is the government given that power, or is it the people? does the constitution define marriage? if not, as Brad said, how do you decide whether or not a right is being violated? The question here isn't the right of people to be married, it's the very definition of marriage. Some say that a homosexual union means marriage, and others say that it does not. It is perfectly within their rights to disagree. So, the question that I think Brad is getting at, is who gets to define marriage? the people, or the government (sounds like Brad sides with government, or the judiciary). But what is the government when it denies the will of the people? Sounds like tyranny.
Brad: What is the gov’t when it denies the will of the people- 2 rebuttals.
1) First some philosophy of law/social contract and constitution theory. In 1787 “we the people” gave up a portion of our power by social contract to the Constitution, which means that there’s a certain portion of our will that is no longer ours- namely any will which would in effect contravene that Supreme rule of law- and thus that will portion is not available to be either denied or affirmed. Stated another way- picture ten people who have 100 "sovereignty" dollars each. They come together and sign a contract saying they'll immediately exchange five sovereignty dollars each for securing the blessings of liberty to their posterity, ensuring domestic tranquility, and providing for the common defense. The five dollars means they agree (or consent, which is the term a positivist would likely use) to be subject to the judgments of the limited government created by the contract. At the end of the process, they only have 95 bucks left! They are no longer as fully sovereign as people in a state of nature. To then claim that the rule of law empowered by those sovereignty dollars violates your sovereignty can only be true for the remaining 95 units, i.e that portion of your sovereignty not already contracted away (the non-Constitutional areas of life). [Sidenote- state law takes another BIG chunk of the remaining 95- "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people" (Tenth Amendment)]. Based on responses I've heard, this widespread illusion that the people of a United State still possess their full popular sovereignty is a cause of much misplaced angst. It would be like a computer engineer who's contracted to work from nine to five for pay to rebel against his boss during the workday by saying, "I'd rather build a swing set in my backyard than a motherboard; I'm a free man, now shove off." The workman's free to spend his time as he pleases off the clock; on the clock he's bound to uphold his contract. Similarly, it's assumed US citizens have contracted to subject ourselves to the Constitution- it is meaningless to speak of the Constitution as the supreme law of the land otherwise. Californians are part of the "we the people of the United States" and by virtue of the contract just discussed are subject to the US constitution- thus the difficulty in concluding that a properly interpreted Constitution overcomes the will of the people. Again, it's still fine to argue that the Constitution was not properly interpreted [i.e. Judge Walker got it wrong]. However, "If we oppose persons who hold particular offices or the policies they pursue, we are free to vote against them or work against their policies. But we should not carry our opposition to the point of opposing their offices, or we weaken the institution of constitutional government" - Elder Oaks. If one argues that Judge Walker/the federal judiciary shouldn't be interpreting the Constitution, the next question would be- who should interpret the Constitution instead? The Constitution is truly impotent absent some level of uniform and predictable application, which necessarily requires judgment. Who makes the calls if not the federal judiciary?
Additionally, by failing to fight against the effect of Marbury v. Madison, we have arguably permitted the federal judiciary to grab the power of constitutional interpretation which “we the people” might otherwise have allocated.
2) The right to marry is a federal constitutional right binding on the whole country. Why should the will of California voters determine the definition of a right that applies nationwide? California doesn’t command a sufficiently significant portion of the country’s population to qualify their vote as the will of the people of the United States. Even if we assume for the moment that “we the people” haven’t lost/ceded to the federal judiciary that portion of power which defines the US Constitutional right to marry, shouldn’t national consensus be required to evidence the will of the people?