C’mon Joe, don’t call me “Mr. Smart,” that’s my dad. And by the way, I think it’s a good thing that LOL has a righty blogging on the site, we can play some rhetorical raquetball around here. Wear a helmet.

But back to the matter at hand. You say this:

The left doesn’t trust the people enough to make its case for minority rights through the people’s representatives in legislatures and governor’s offices. And, as I have said before, resorting to the courts undermines respect for any new right. And our respect for the principles behind our rights are the strongest bulwark against their violation.

To which I’d say, let’s go back to the Civil Rights Act of 1964. Wikipedia - not always the most accurate reference but it’ll do in this case - tells us that this “landmark legislation… outlawed segretation in the U.S. schools and public places.” My question would be, at what point did segregation in schools and public places become a problem for blacks?

1964?

Do you see what I’m saying here? The legislation isn’t passed until 1964; the issue had persisted for nearly a full century until it was addressed by the federal legislature. And so when you ask, don’t liberals trust elected representatives to protect the rights of minorities, the record, in general, is pretty clear - they may ultimately do so, but it takes quite a few years of inequality before that day ever rolls around.

So my question, in turn, would be: Is that just? Remember, too, that if the Civil Rights Act proved that the legislature responds to the True Will of the People, we might say the exact same thing about the laws that necessitated the Civil Rights Act in the first place.

We might say the exact same thing about the Jim Crow Laws.

Well, these were statutes passed by legislators, right? Blacks were unable to, in your words, “convince a majority of legislators that they were right”; thus the legislation reflected the True Will of the People; the majority of voters at that time wanted, and got, inequality codified in law.

But let’s go a step further. I realize it’s a conservative article of faith that the courts “invent” new rights for minorities, but are those rights, in fact, not inherent in our founding documents themselves? The phrase “All men are created equal”; how in any way is that ambiguous? If all men are created equal then they are necessarily entitled to the same rights, are they not?

The reason the courts tend to decide these cases the way they do is that they take that line literally: All men. They’re not “inventing” new rights; those rights are already there. To say that gays have the right to marriage just as straights have the right to marriage may be a radical departure from tradition - but it is a straight, down-the-line, literalist interpretation of the Constitution.

Conservatives want to prevent that literalist interpretation, which is why they want to draw these lines. We can have this, but they can’t. For traditionally, they haven’t; because we have traditionally discriminated against (insert minority here), but now said minority is saying, hey - all men. That’s pretty much the history of our country; but it frightens us. They’re getting uppity. And so we devise new restrictions - for that is what a legislative prohibition against homosexual marriage, or a constitutional amendment, actually is.

Joe, I go back to my basic argument: The constitution of the United States is about setting forth and defending the rights of the individual against government. How does either Brubaker’s proposal, or yours, accomplish this? Or is it designed, in fact, to do the opposite?