THE INTERESTING thing about the debate over U.S. District Court Vaughn Walker’s ruling that Prop. 8 violated the Constitution isn’t whether gay marriage is a good idea or not. The pros and cons of gay marriage have been argued ad infinitum and, in California anyway, we already know that a majority of citizens don’t believe gay marriage should be allowed.

At The Pine Cone, of course, we disagree with them. As we have pointed out several times, the harm done by gay marriage to society would be negligible, especially compared to the benefits it would bring to same sex couples. And that’s why we urged Voters to reject Prop. 8.

But we also don’t think a judge should overrule a vote of the people or declare that a new right suddenly exists in the Constitution except under profound circumstances. Alas, Prop. 8 does not rise to that test. Walker should have declined to overrule it, and said that even judges who favor gay marriage should wait for the people, acting through the democratic process, to decide to institute it.

Why do we say this? Because, obviously, gay marriage was not part of the U.S. Constitution when it was ratified in 1787. It was also not part of the California Constitution when it was adopted in 1849. And neither document has been amended to create a right of gay marriage.

This is not an argument that the meaning of a Constitution can never be changed without a formal amendment. Clearly, the document can change, has changed and must be subject to change based on what a commentator in the Monterey County Herald recently called “changing values.” And if Congress and the various state legislatures can’t bring themselves, for political reasons, to amend the Constitution in a way which is clearly necessary, it sometimes falls to the judiciary to do the heavy lifting for them.

But if such a drastic step is to be taken, whose changed values should be deemed sufficient to justify it? Whose authority can a judge cite to explain why the meaning of the Constitution has become different today from what it was 20, 50 or 100 years ago? Should a judge feel free to make such an important decision based solely on his own values? Or those of his fellow judges? Are Harvard law professors smart enough to be the authority for deciding what the Constitution means? What about network news anchors? People who live in big cities? Preachers? Newspaper commentators? We could go on and on.

Obviously, the answer is that the meaning of the Constitution can change only if the values of the majority of people in the country have changed.

In the 1960s, the Supreme Court declared a whole bunch of new rights that didn’t meet this test. One outstanding example was the Miranda ruling, which required that a confession be thrown out of court unless the person who confessed was first advised of his right not to say anything. It seems highly unlikely that a majority of Americans in 1966 believed the Constitution contained this principle; most probably don’t believe in it today. Nevertheless, the Supreme Court imposed it on everybody. Perhaps the definition of an “activist” judge is one who finds a right in the Constitution which the people don’t support.

In various parts of the U.S., voters have been asked about gay marriage more than two dozen times, and it has lost every time. The people of California expressed their opinion less than two years ago. Judge Walker had no business telling them they were wrong.