"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
There are two ways of implementing this: What did this mean when they adopted it, or what does it mean today.
No one seriously argues that when it was adopted it was designed to legalize gay marriage, so I'll move on to the next point.
What does it mean today? It means a million things to a million people. But that doesn't mean its entirely unreasonable to think that the "values of the people" expressed in the Constitution are evolving values that change when the values of the people change. So we have to ask, how much do the values of the people need to change before they should be recognized by the Constitution? If only three or four people agree, does that change "the values of the people"? Does 51% dictate the "values of the people?" People who believe in the living Constitution have to wrestle with this idea.
Unsurprisingly, the Framers already thought it through. Article V, in relevant part, reads:
"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;"
Three fourths of the several States. That's 75%. Much more than 48%, that voted against Prop 8. More broadly, if you believe the Constitution embodies our values, why does it take less to make our values enforced de facto, rather than de jure? Why make two ways to amend the constitution that require wildly different amounts of support?
