It’s Supreme Court silly season in addition to being election silly season, so we’ve been treated to more silliness than usual of late about how judges read the Constitution. A seemingly endless parade of Democratic politicians (ranging from Hillary Clinton to the mayor of Chicago) have been pretending that originalists think the Constitution should be read as it was written in 1787 without regard to its amendments, and thus to allow slavery, to allow states to deny women the vote, etc. — a position no originalist takes. Even on these straw-man terms, though, it should be noted that the original Constitution simply left many injustices to the voters to remedy: it was carefully written to allow states to ban slavery (as New York and New Jersey did), it empowered Congress to ban it in the territories, and it placed no restrictions on women voting (as they were allowed to do beginning in 1869 in Wyoming). Later, voters who found these powers insufficient enshrined protections directly in the Constitution. Yes, the Founders’ Constitution had flaws, but that’s why they designed it so it could be amended, and why they themselves amended it twice even after adding the Bill of Rights.First up in attacking straw men, we have Jamelle Bouie’s New York Times column, which attempts to persuade readers that “Amy Coney Barrett’s originalism ignores the significance of the second American Revolution. . . . Barrett’s Constitution is the Constitution of 1787, written in Philadelphia and made official the following year. That’s why her formulation for originalism rests on ratification.” Bouie presents Barrett’s views as if she and other originalists do not even consider the 13th, 14th, and 15th Amendments. This is nonsense. Any originalist will tell you that the legitimacy of judicial decisions enforcing those amendments rests on their ratification by the people, and that their meaning is to be derived from how they were understood in 1865, 1868, and 1870, respectively. This is exactly the same view according to which the unamended provisions of the original document are legitimately enforced by the courts because they were ratified by the people, and are read as they were understood when they were ratified by the people. This is Law 101: It’s the same reason we read statutes written at different times, or contracts signed at different times, based on their meaning when they were enacted.

The dishonesty of Bouie’s cartoonish portrait of Barrett is apparent from the 2017 article he quotes from, “Originalism and Stare Decisis,” a good deal of which discusses the application of originalism to the Reconstruction Amendments. The question Barrett explores in the article is the tension between reading the Constitution as originally written and applying Supreme Court precedents that do not read the Constitution as originally written. When do you follow the Constitution, and when do you stick with precedent that misreads it? This has been a point of particular disagreement between the Court’s two most prominent judicial originalists: Barrett’s old boss, Justice Antonin Scalia, and Justice Clarence Thomas.

One of the major cases in which it came to the fore was the gun-rights case McDonald v. City of Chicago, which held that the Second Amendment applies to the states. Scalia concluded that it applies to the states because precedent has used the due-process clause of the 14th Amendment to apply the Bill of Rights to the states; he did not agree with that line of precedent but regarded it as long-settled. As Barrett noted in her article:

Justice Scalia had “misgivings about Substantive Due Process as an original matter.” Nonetheless, he acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights “because it is both long established and narrowly limited.” He refused, however, to accept the body of precedent standing for the “proposition that the Due Process Clause guarantees certain (unspecified) liberties, rather than merely guarantees certain procedures as a prerequisite to deprivation of liberty.”

Justice Thomas, by contrast, wrote a lengthy and much-discussed concurrence in McDonald arguing that it was long past time for the Court to restore the original 1868 meaning of the 14th Amendment, throw out its cases using the due-process clause to apply the Bill of Rights to the states, and instead revive the privileges and immunities clause as the vehicle for protecting fundamental rights (including elements of the Bill of Rights) against the states. In Thomas’s view, which was steeped in the specific history of black civil rights after the Civil War, the Court had taken a wrong turn on this as far back as the 1870s and, as a result, failed to adequately protect the constitutional rights of black Americans as added by the Reconstruction Amendments. Thomas has reiterated this approach in several cases.

Anyone seriously writing about originalism and the Reconstruction Amendments would address Thomas’s arguments, or at least mention their existence. Bouie not only completely ignores Thomas, he pretends to blaze his own trail: “If we were to try to build an ‘original meaning’ of the Constitution around the Reconstruction amendments, we might” reach the “transformative” conclusion that “‘privileges and immunities’ of citizenship” carries meaning not covered by the rest of the amendment. In other words, Bouie would have his readers believe that he has discovered some piece of the text that originalists ignore, even though Clarence Thomas has been urging the Court for years to take up precisely that clause on explicitly originalist grounds.

Bouie also argues that originalists such as Barrett pay no attention to the clauses in the Reconstruction Amendments that empower congressional enforcement — even after she discussed those clauses at her hearing this week. Barrett’s article — the one he quotes — devotes an entire section to discussing how Justice Scalia handled Section 5 of the 14th Amendment:

[Scalia] concluded that the limit on Congress’s power was set by the language of Section 5: Congress had the power “to enforce” the Fourteenth Amendment but not to enact prophylactic measures going beyond what the Constitution itself requires. Yet as he acknowledged, “The major impediment to the approach I have suggested is stare decisis.” Major statutes like the Voting Rights Act assumed the validity of the Court’s earliest Section 5 cases, which held that Section 5 conferred prophylactic power on Congress. The longstanding cases endorsing prophylactic power were almost exclusively in the area of racial discrimination, which was the principal concern of the Fourteenth Amendment. He decided, therefore, to preserve both the results and the decisional theory of the Section 5 cases in the context of racial discrimination. “[P]rincipally for reasons of stare decisis, I shall henceforth apply the permissive . . . standard [of permitting prophylactic power] to congressional measures designed to remedy racial discrimination by the States.” Outside the context of race, he would not accept assertions of prophylactic power [because they were not compelled by precedent].

In short, Scalia was choosing not to apply an originalist rule to the Voting Rights Act, and in doing so, he expanded the power of Congress by adhering to precedent. Does Bouie disagree with Scalia’s view, or with Barrett’s discussion of it? In order to do that, he would have to disclose the existence of those arguments to his readers.

Bouie claims that “the Reconstruction Constitution is a fundamentally different document than the Constitution of 1787. Yet our conversations around ‘original meaning’ rarely take account of this change.” But this, too, is nonsense. For example, the long-running debate among originalists over birthright citizenship is very much about what was understood in the 14th Amendment’s language when it passed Congress in 1866 and was ratified in 1868.

Bouie’s own argument about why we should disregard the enumerated powers of Congress in the original Constitution is incoherent. First, for all of his complaints about the 1787 Constitution, he offers no reason why provisions in its original text should be read based on some later period of time. He tells us that the original Constitution “died with the attack on Fort Sumter on April 12, 1861,” but Abraham Lincoln — who had spent the years before the war arguing for an essentially originalist view of the Constitution, and criticizing the Dred Scott decision in those terms — fought the war precisely to preserve the original Constitution. It was not accidental that the 13th Amendment drew its language banning slavery out of the Northwest Ordinance of 1787, using phrases believed to be written by Thomas Jefferson himself. (In fact, an originalist interpretation of “involuntary servitude” incorporates the meaning of that terminology in 1787 as well as the gloss it had gathered by 1865.) The ratification of the two following amendments were indeed intended to work a significant change in the original structure but not to instruct courts or Congress to disregard everything that came before. Nobody at the time of Reconstruction argued that the new amendments had rendered wholly irrelevant the concept of a federal government of limited and enumerated powers.

Moreover, Bouie cannot seem to decide whether he is arguing that the original meaning of the Reconstruction Amendments’ text should be applied in order to grant broader powers to Congress to protect the interests guarded by those amendments, or that the amendments should be read to evolve over time and as broad charters of policy-making authority to go beyond their text as it was understood at the time. He seems to veer back and forth between the two. He cites one of his own prior columns arguing that the 15th Amendment would have had a broader reach if it had included language that was proposed and rejected — but he also seems to be arguing at the same time that reading the Constitution in the way he proposes would allow Congress to enact the very things that the rejected language would have authorized.

Bouie is not the only participant in silly season. Carissa Byrne Hessick, writing in Slate, argues that it is ahistorical for Barrett to say that judges should not make policy. The column has half a point, but it is basically a bait-and-switch that ignores the context in which Barrett and other originalists argue against judicial policy-making. Hessick notes that Founding-era courts were in the business of making the common law, which inevitably involved policy choices in areas such as “criminal law, property law, torts, contracts, and essentially every other area of law in early America.” That is true: It is how the British common-law system works, and it is still how state law operates in many of those areas. State-court judges to this day enjoy some latitude in setting common-law rules on torts, contracts, and property, although such rules must give way when legislatures step in, as they have done increasingly over the years. Also, the common law itself is heavily precedent-based; while common-law courts have more leeway in overturning precedents than in statutory areas, they are not policy-making free agents.

Even today, federal courts do still have a common-law policy-making power in some areas, but only because the Constitution or statutes have left them that role. Admiralty law, which encompasses many of the rights of sailors and ships on the high seas, has been overlaid with federal statutes, but it still includes a body of common law that has always been recognized as the province of the federal courts. The Supreme Court exercises essentially common-law powers in adjudicating lawsuits between the states over boundaries and water rights, although these areas also involve interpreting acts of Congress and interstate agreements. The inherent power of courts to hold litigants in contempt is a common-law power, although, again, one that is now more circumscribed by written law. Since the 1890s the Sherman Antitrust Act has essentially been treated as a congressional grant to federal courts to develop an evolving common-law body of antitrust law, one whose existence has been repeatedly ratified by Congress. And several other areas of law leave some discretion within the judicial role.

So yes, federal judges do make policy judgments, in individual cases and particular areas of the law. But this has nothing to do with why originalists such as Judge Barrett stress the dangers of allowing judges to substitute their policy preferences for those of the authors of the Constitution or the authors of statutes written by Congress.

Dan McLaughlin is a senior writer at National Review Online