About four years ago, I was on the receiving end of some querulous reader e-mail. The Ninth Circuit federal appeals court in California had sent some social conservatives into orbit: ruling that there was no fundamental parental right to control the content of sex-education instruction in public schools. I made the mistake of agreeing with the ruling in a post on the Corner.

It wasn’t that I failed to grasp the equities. Judges, and the Ninth Circuit in particular, are notorious for creating (or “discovering”) new constitutional rights as necessary to advance the leftist agenda. Why not a little substantive due process for our side, too? Except, the point is that we don’t want politically insulated judges imposing any agendas. We just want them to interpret the law as it exists. If our law is out of sync with our preferences — if parents believe that they, not school boards, should control the content of sex education — there’s a legitimate way to remedy the problem: Win the public debate and pass a law. To judge by my mailbox, this was not a popular suggestion, but I still think it was the right one.

That experience leapt to mind a few days ago when the New York Times published a characteristically thoughtful op-ed by NR senior editor Ramesh Ponnuru. Taking stock of a couple of this term’s most significant Supreme Court cases — both involving post–Civil War amendments adopted primarily to address racial inequality, Ramesh cautioned conservatives against cheerleading for right-wing judicial activism. As NR’s Jonah Goldberg observed, the argument is a new variation on “Originalist Sin,” a more in-depth essay about conservatives and affirmative action that Ramesh wrote for NR in 2003.

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Though I disagree with aspects of Ramesh’s argument, I applaud him for making it, and I’m perplexed by some of the criticism he received on the Right (see, e.g., this post from Wendy Long, of the Judicial Confirmation Network, of whom I’m an ardent admirer). The 13th, 14th and 15th Amendments are challenging for those of us who adhere to “originalism,” the jurisprudential theory that legal provisions must be construed in accordance with what they were understood to mean at the time of their adoption. The controversy centers on whether these post–Civil War amendments were truly meant to implement an official policy of colorblindness. We would like to believe they were — particularly if we are originalists; for if they weren’t, we must acknowledge that the Constitution countenances discrimination.

I confess I’ve never understood why that would be so explosive a conclusion. The Constitution is a framework composed of (among other things) baseline guarantees. From that threshold, our society has broad deference to legislate and regulate our lives as we see fit. Therefore, the Constitution should countenance a lot of things that are bad, or at least foolish. It doesn’t mean those things will necessarily happen or that, if they do happen, we can’t reverse them. That’s what freedom is all about, and freedom is what the Constitution promotes.

Moreover, we know for a certainty that the Constitution at one time countenanced slavery. It would hardly be shocking, then, if it turned out that the Constitution countenanced the lesser evil of discrimination in the transitional post–Civil War period — a phase during which our society at large plainly tolerated discrimination but was also free to end, and did indeed undertake to end, discrimination by legislation. Yet, in our still racially charged society, to admit such a possibility is to be expelled from polite society.

Political correctness having infected our law, we have bollixed ourselves into a fix where: (a) nothing bad can be constitutional; (b) racial discrimination must therefore be unconstitutional; (c) the post–Civil War amendments are how the Constitution addressed the evil of racial discrimination; (d) the post–Civil War amendments must therefore have been meant to end all racial discrimination; (e) if the originalist doubts that this was the original understanding of the amendments or, worse, rejects such a contention, that somehow turns out to be not a sad reflection of flaws in post–Civil War society but a fatal problem for today’s originalism as an algorithm for construing the Constitution.

As it happens, I believe there is a credible originalist argument for the proposition that the post–Civil War amendments were understood as an effort to usher in a colorblind society. That’s clearly how Supreme Court Justice John Marshall Harlan understood them. That they failed to be universally accepted as such does not negate that this is what they meant. But I do wish it did not seem so crucial to prove that this is what they meant.