Many thanks to the people—so far they are Jonah Goldberg, Anthony Dick, Roger Clegg, and Matthew Franck—who have commented on the argument I made in today’s New York Times. (You may want to add your own voice here.) I will respond to the comments in the order they were made.

I appreciate Jonah’s continued endorsement of the campaign—which, if I recall correctly, he launched—to put me on the Supreme Court. He may be right that Justice Thomas’s view that the Constitution should be interpreted in light of the Declaration of Independence is relevant here: Justice Thomas cited the Declaration in a major affirmative-action case in the 1990s. He is also right to suspect that I do not see how the Declaration, however illuminating it may be, can be a source of a judicial power to override the policies of other branches.

Jonah is, finally, right to say that statutory law does mandate colorblindness in some areas even if the Constitution does not mandate it. As Clegg notes, the Court has been activist in tacitly setting aside these colorblind laws. On the other hand, the law does not prohibit some forms of color-consciousness. Racial redistricting, for example, may be unwise but it seems to me to be neither illegal nor unconstitutional. Whether New Haven’s treatment of Frank Ricci violated statutory law is a separate question that my op-ed did not go into. Among my reasons for not going into it is that I’m not sure of the answer.

Anthony speculates that it is my preference for a judiciary that is weak relative to the legislature, not my originalism, that underlies my conclusion about the Voting Rights Act. I am not sure this distinction holds up. What if the Constitution, rightly interpreted according to its original meaning, yields a “weak” judiciary? (That it yields a judiciary considerably weaker than the one we have today is something that very few self-described originalists doubt.) He suggests that the Voting Rights Act may go beyond the original understanding of the powers the Fifteenth Amendment granted to Congress. It is an interesting hypothesis. But neither he nor any of the Supreme Court justices has undertaken that originalist inquiry. That failure to apply originalism is the basic problem my op-ed raised.

I am not quite sure what Roger means when he calls my op-ed “ill-timed,” but the rest of his points are clear enough. First, he asserts that the Voting Rights Act goes beyond the Fifteenth Amendment and thus supplants authority that the Constitution leaves to states. Maybe so, but where’s the historical evidence?

Second, Roger reiterates his view that “courts determine facts all the time” and depending on will apply legal standards in different ways. Nobody disagrees with that claim. But there are two other things to remember. The first is that the Court is not just finding facts, but deciding whether those facts justify certain policy responses—which is a quintessentially legislative judgment. The second is that nobody has yet presented an originalist grounding for the constitutional standard being applied.

Third, Roger notes that Ricci has a statutory claim as well as a constitutional one. I didn’t comment on it. Note that I said that we shouldn’t leap from the unfairness of Ricci’s treatment to the conclusion that he should win his case. I didn’t say that all of his legal claims deserved to lose.

Fourth and last, Roger suggests that Ricci’s treatment straightforwardly violated the state’s obligation to provide all persons with the equal protection of the laws. Again, he supplies no originalist analysis to back up this contention. Roger and his organization, the Center for Equal Opportunity, do fine work on racial issues. I just think less of that work should be done in court.

As for Matt Franck, naturally enough I agree with all of his defenses of my argument.