In a recent column, I wrote about an incident where a group of anti-trans parents was disciplined for wearing bracelets bearing "XX" and "Nad" (short for "gonads") to a soccer game where a young transgender woman was playing for the opposing team. A court held, correctly, that the First Amendment protected anti-trans parents' protest.
A reader sent me an e-mail asking if I considered the parents to be intolerant. I responded that I did. This elicited the following response:
"But the party that wants people removed from restaurants, sporting events, etc., because they don't like their hats or T-shirts, [author's note – huh?] that celebrates the murder of Charlie Kirk because they don't like what he said [author's note – can you point to one mainstream
Democrat that celebrated Kirk's murder?], that says it is OK to force women to compete against men and shower in front of men [author's note – no one's doing that], etc. they are the tolerant ones. Got it. Gotta like that liberal logic.
Every politician, teacher, and doctor should be required to pass a common sense test. You just flunked it [author's note – bummer, I never flunked a test before, other than my driver's license test the first time]."
It may come as a surprise to my readers, but I am not a big fan of "common sense," especially when it's used in an argument. Frankly, common sense has a spotty track record at best. An essay appeared in The New York Times on May 11, 1857 that said this: "But we must suppose these settlers to have eyes and ears and some little common sense, and a residence of six months would convince them that it is best for all classes that the negro should be held in bondage."
That common sense didn't age well.
Common sense was at it again in 1869 in the case of Scott v. State of Georgia. There, the Georgia Supreme Court upheld the state's prohibition on mixed-race marriage, describing the policy this way: "a broad and solid foundation in enlightened policy, sustained by sound reason and common sense."
I have a tough time believing that racism is "enlightened," much less common sense.
The 1882 Congressional Record contains this justification for the Chinese Exclusion Law, noting that we then lived "not [in] an age of sentiment, but of practical, common-sense utilitarianism." So arbitrarily excluding immigrants based solely on their country of origin is common sense? Hard pass.
And in the 20th century, common sense proved it still had legs. On Feb. 26, 1942, the West Seattle Herald ran this headline in support of Japanese internment: “Complete evacuation of aliens − a common sense move − why delay?” The United States Supreme Court's 1944 ruling in Korematsu v. United States, which upheld the practice of forced relocation and internment of Japanese Americans, is now rightly considered one of the most shameful decisions in Supreme Court history.
So excuse me for not jumping on the common sense bandwagon. And not just because it has so often been used to justify bigotry. It's just lazy.
When people lack data, facts, or evidence to support their position, they lean on common sense like an injured athlete leans on a crutch.
I prefer actual thinking to common sense.
Jack Greiner is a Cincinnati attorney. He represents Enquirer Media in First Amendment and media issues. He can be reached at greinerjack46@gmail.com.
This article originally appeared on Cincinnati Enquirer: Common sense has a checkered history | Strictly Legal
