Menu Close

The Other Ordinary Persons


Fred O. Smith, Jr.


November 9, 2021

If originalism aims to center the original public meaning of text, who constitutes “the public”? Are we doing enough to capture historically excluded voices: impoverished white planters; dispossessed Natives; silenced women; and the enslaved? If not, what more is required? And for those who are not originalists, how do we ensure that, as American law consults the wisdom of the ages, we do not sever entire sources of wisdom?

This brief symposium Article engages these themes, offering two modest, interrelated claims. The first is that important informational, ethical, and democratic benefits accrue when American legal doctrine includes the voices and perspectives of marginalized and subjugated members of the American community. The second is that additional scholarly attention should be given to the moments in which jurists center and elevate the voices and perspectives of the marginalized. To that end, this essay focuses on a Fourth Circuit case in which Chief Judge Roger L. Gregory did center such perspectives: United States v. Curry.


Fred O. Smith, Jr., The Other Ordinary Persons, 78 Wash. & Lee L. Rev. 1071 (2021).