Anthony Dick and Roger Clegg assert that the text of the Fifteenth Amendment so clearly supports their view that the Voting Rights Act is unconstitutional that historical inquiry is unnecessary. I agree that the conclusion follows from the premise but dispute the premise. This isn’t just a case where reasonable people can and do read the text differently than they do; it is a case where, as far as the latest opinions demonstrate, no justice of the Supreme Court reads it that way, either. And I’d be interested to know how, on D&C’s method of interpreting the Constitution, the Court could possibly be justified in letting the provisions of the Civil Rights Act of 1964 regulating private conduct stand.

Anthony steals a base in suggesting that I have retreated from my claim that conservatives are being inconsistent on the race cases. I haven’t. The inconsistency is that they don’t apply an originalist methodology. Anthony and Matthew Franck have started a side-discussion about the legitimacy and proper scope of judicial review. Nothing in my position (or Matt’s, as he points out) implies that the courts should let all unconstitutional laws stand. I do not think there is a strong case that the Voting Rights Act, for example, is unconstitutional in the first place.

Abigail Thernstrom’s delightful post — I will disagree with her more often if it elicits such declarations of love — suggests that I think it was wrong for the Court even to review the constitutionality of the act in the 1960s. Not so: But I do tend to think it concluded its review correctly by letting the act stand. I also think that the Court of the 1960s was no model of originalism or restraint for conservatives to look to. Abby points out that Congress didn’t do much in the way of real deliberation when it renewed the act in 2006, and that its fact-finding was pathetic. I agree. But the Constitution does not require that Congress do its job well for its acts to have force.

Lawrence Solum writes:

I’m not sure that I disagree with the thrust of this comment, but the execution is certainly sloppy. Original intent? Where has Ponnuru been? The Op/Ed form does not lend itself to careful legal analysis, but this is pure hand waving.

I’m tempted to respond with snark. “Sloppy,” says the guy who doesn’t spell my name right? But I assume that what Solum is getting at is that modern originalists are more apt to refer to “original meaning” than “original intent,” for perfectly good reasons: They want to make it clear that it’s not the subjective intentions of the drafters of legal provisions that count, but rather the objective meaning — which is what I describe in the op-ed as what the informed public of the time thought the law they were ratifying meant; in other words, what they intended to ratify. So I don’t think that my terminology is naïve or even mistaken. Finally, I would like to register a protest against “hand waving,” one of the blogosphere cliches of the moment, which is invariably an example of what it purports to decry.

And one last thing. A few bloggers have taken my op-ed to be a wholehearted defense of Judge Sonia Sotomayor’s conduct in Ricci. I don’t see why. I claim that she tried to bury the case and that Ricci deserved a hearing. I think the way she handled the case was troubling for precisely the same reasons that Ed Whelan has identified on this site.