Hatch’s amendment reads as follows: “Marriage and its benefits in each state shall be defined by the legislature or the people thereof. Nothing in this Constitution shall be construed to require that marriage or its benefits be extended to any union other than that of a man and a woman.” According to Gallagher, “There are many problems with this language.” Alleged problem one: “Courts that have discovered a right to same-sex marriage in general commitments to due process or equal protection are no doubt capable of discovering that ‘the people’ have a right to same-sex marriage.” The suggestion here would appear to be that a state court, for example, could say that “the people” of the state had, in some fashion or other, approved of same-sex marriage when they had not. It could, in a flight of fancy, decide that “the people” who lived together in same-sex unions had defined marriage.

Now any case for a constitutional amendment on marriage has to begin with a suspicion of judges, or at least some important subsets of them. But this suspicion cannot become paranoia. If you are willing to assume that judges can do anything they want with any constitutional text, then there is no point to passing any amendment. Willful judges will be able to read Gallagher’s preferred FMA in abstraction from its clear intent, too.