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Obama is asked if he would vote for California's Proposition 8.

A great question, asked by an MTV viewer. Of course, for political reasons, Obama has had to sayt he opposes same-sex marriage, but he also opposes Proposition 8. Here's how he puts it:

"I believe marriage is between a man and a woman. I am not in favor of gay marriage. But when you start playing around with constitutions, just to prohibit somebody who cares about another person, it just seems to me that's not what America's about. Usually, our constitutions expand liberties, they don't contract them."

But what if the judges read the existing constitution to contain rights that people don't believe are really there? This idea that it's wrong to change a constitution to contract rights works very effectively in that situation. You're saying to people, yes, the courts over-expanded rights, but now you'd be wrong to reset the constitution where it actually was, because you'd be making rights smaller, and rights should never get smaller. America's not about taking rights away from people.

I assume Obama really does support same-sex marriage, which makes it easier to say that what the courts have given, the people should not take away. The more important question is: What kind of judges will Obama nominate? Will they be judges who use the Constitution to get out in front of the American majority on important social issues?

ADDED: Mickey Kaus writes:

The problem is that if the state Supreme Court is sustained in creating this right, it will be inevitably tempted to create other, more problematic constitutional rights. ("Usually, our constitutions expand liberties, they don't contract them," says a man who may soon be in a position to insure this "expansion" picks up steam.) We'll wind up in a Rose Bird world in which almost all significant disputes involve contending "rights" and are therefore to be decided by judges, not voters.

AND: An emailer asks:

Doesn't your post imply that Obama probably disagrees with the judicial reasoning that equal protection requires same-sex marriage? Why would you think that?

I think that probably, in his heart of hearts, Obama believes that the U.S. Constitution prohibits the government from restricting marriage to opposite-sex couples. But, as a smart political actor, he knows the country isn't ready for it, and he's giving us what we want.

So the real question is: When this smart political actor gets his hands on the appointment power, will he give us judges who channel his beliefs about what rights really are or judges who follow a path of judicial restraint that resembles Obama the political actor?

Full post as published by Althouse on November 03, 2008 (boomark / email).