Some comments by "Brett" on the constitutional recognition of slavery (and its racial nature) led me to supply my .02. He was partially right to call out some who don't recognize that the Constitution is somewhat mixed on the subject, the fact it leaves an opening for a lot of wrongdoing not meaning it quite requires such a path. The subject of the post -- the 3/5 Clause -- underlines the confusion. The clause does not treat, stereotypes aside, blacks as 3/5ths of a person. It treats slaves (as James Madison's discussion in F.54 suggests, "other persons" were basically slaves, even if literally others might be included, and the slaves were going to be black, again even though the path is left open for something more) that way in respect to apportionment of House seats and direct taxes. But, the underlining principle (see Madison) does recognize slavery as legitimate and given the realities of the situation, blacks (even if free) in particular were harmed.
I added a link to my quick comment yesterday about the end of DADT, the link to a discussion on how both political (executive action covered, so not merely legislative) and court action (I guess some might think of this as "political" too; maybe "elective" then) work together to change things in the area of civil rights. This underlines the principle discussed by Pamela Karlan in my Constitution Day post last weekend: the Constitution sets forth basic rules that change over time. This is one reason why electing Lincoln was so dangerous to certain forces -- true enough he agreed the federal government could not interfere with state power to allow slavery in any number of ways. But, there was enough flexibility there (see the dissents in Dred Scott) to endanger slavery forces all the same. If slavery was ended, as it was without amendment in a majority of the states (including Maryland and Missouri during the Civil War), slaves wouldn't be "other persons." They would be "persons" with certain basic rights.
And, even with slavery, a different mind-set could interpret certain provisions a different way. Imagine if the Fugitive Slave Act was declared partially unconstitutional since "persons" (as alleged fugitives were) did not get proper due process rights. The law, after all, wasn't the only thing that led the Missouri Supreme Court in Dred Scott's case (in a separate lawsuit) to change its rules regarding recognizing that slaves that went into free areas staid free, even if they returned to the slave state of Missouri. The majority opinion cited the pressures of the day, how free states allegedly violated the comity involved that warranted the old rule. Electoral politics also led certain people to be elected President, people who then nominated certain people to the Supreme Court though the division of the country into judicial circuits, not by some sort of "one man, one vote" fashion that would have given non-slave areas more coverage, also influenced the breakdown. And, the very decision of Dred Scott was influenced by party politics, Congress in fact basically welcoming some judicial settlement of the question by easing suits involving slavery in the new Mexican War obtained territories.
It is equally naive and blind not to recognize that a mere literal reading of the Constitution fails to explain how the courts and the people at large interprets the Constitution. It is especially true when examining things at the margins and by looking at swing votes, which our system (including in Congress) gives some extra power to at the end of the day. Such forces are influenced by things like public opinion, personal beliefs (including empathy) and other "soft" factors other than some strict reliance to the law. Our system of law in fact encourages that sort of thing by setting up broad rules ("due process," "beyond a reasonable doubt," "rule of reason") that have a lot of play in the joints. This results in a type of "common law" approach influenced by events, even if statutory rules serve as limiting factors. It's messy, but realistically that is how things work, even if some angrily reject it (while following it sub silento). On the SSM issue:
So, the legal acrobatics have already been invented and exercised. The question is whether the public’s comfort level has advanced far enough toward accepting marriage between same-sex couples to embolden the Supreme Court to do its job.I would question if the "legal acrobatics" is always a bad thing. The ideal for some is justice, even if the sky will fall. But, life doesn't work that way. Someone cited to me the idea that we all have inherent rights and accused me of believing we have rights, until the government doesn't recognize them. Sounds nice, but if the government doesn't recognize them, what good are the rights? We can imagine "natural rights" that exist but are unenforced. On some level, that sounds good, but again, only helps the slave so much. Practice is a bit more messy. And, the slow change -- at times being a bit coy about the messiness involved -- approach just might be the way to go there. After all, people can all they want pretend that the Constitution in practice meant the same thing (putting aside amendments) in 1900 and 2000, but that's not how things actually work.
The change -- kinda like evolution -- is slow, if with some major changes mixed in to keep things interesting.