Ordinariness as Equality

This Essay argues for an equality norm of racial ordinariness. Ordinariness here refers to the state of being treated as a full, complex person and a rightful recipient of human concern. As a norm, its purpose is to focus constitutional attention on common, everyday interactions as sources of racial indignity. It also seeks to sensitize courts and other constitutional actors to the infinite varieties and grittier dimensions of discrimination through the “understandings of everyday folk.” Part I explains why ordinariness matters and the importance of everyday interactions to achieving ordinariness.

It discusses these points through the lens of a true story about the shooting death of a black man by the police. Part II discusses court opinions that have identified ordinariness, either explicitly or implicitly, as a form of equality. Part III discusses the Fourth Amendment as one example of how constitutional doctrine denies ordinariness. The Essay closes with a brief discussion of the challenges and possibilities of ordinariness as a constitutional norm.

The Future of the U.S. Constitution: A Symposium. April 14-15, 2017, Bloomington, Indiana. Sponsored by Indiana University Maurer School of Law, Indiana Law Journal & the American Constitution Society for Law and Policy.