Jack Greiner argues that appeals to "common sense" are a weak form of argument and have historically been used to justify injustice. He cites examples including pro-slavery rhetoric (1857), anti-miscegenation rulings (Scott v. State of Georgia, 1869), the Chinese Exclusion Act (1882), and the Japanese American internment and Korematsu (1944). Greiner contends that "common sense" often replaces facts and careful reasoning, and he urges more deliberate, evidence-based thinking.
Why 'Common Sense' Is A Poor Substitute For Evidence
Jack Greiner is a Cincinnati attorney. He represents Enquirer Media in First Amendment and media issues.
In a recent column I recounted an episode in which a group of anti-trans parents attended a youth soccer match wearing bracelets labeled "XX" and "Nad" (short for "gonads") while a young transgender woman played for the opposing team. A court correctly ruled that the parents' protest was protected by the First Amendment.
One reader asked whether I considered the parents intolerant; I replied that I did. The reader responded:
"But the party that wants people removed from restaurants, sporting events, etc., because they don't like their hats or T-shirts ... that celebrates the murder of Charlie Kirk because they don't like what he said ... that says it is OK to force women to compete against men and shower in front of men ... 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."
I am not a fan of appeals to "common sense," especially when they stand in for evidence and careful reasoning. Historically, invoking "common sense" has been used to justify deeply unjust and now-discredited policies.
Consider an essay in The New York Times on May 11, 1857, which advised settlers that a short residency would demonstrate "it is best for all classes that the negro should be held in bondage." That appeal to common sense is now recognized as morally and factually wrong.
In 1869 the Georgia Supreme Court, in Scott v. State of Georgia, upheld a ban on interracial marriage, calling it "a broad and solid foundation in enlightened policy, sustained by sound reason and common sense." It stretches credibility to call racist law "enlightened."
The 1882 Congressional Record defended the Chinese Exclusion Act by invoking "practical, common-sense utilitarianism," endorsing exclusion of immigrants simply because of their origin. And in the 20th century, a February 26, 1942, editorial in the West Seattle Herald urged "Complete evacuation of aliens − a common sense move − why delay?" The Supreme Court's 1944 decision in Korematsu v. United States, which upheld the internment of Japanese Americans, is now widely regarded as one of the Court's gravest errors.
These historical examples show a pattern: when people lack data, facts, or careful analysis, they often fall back on the comforting claim of "common sense." But "common sense" is neither timeless nor infallible; it can reflect prejudice, ignorance, or expedience.
I prefer deliberate reasoning to reflexive slogans. Public debate and public policy are better served by evidence, clear argumentation, and openness to correction than by unexamined appeals to what "everyone knows."
Jack Greiner is a Cincinnati attorney who represents Enquirer Media on First Amendment and media matters. He can be reached at [email protected].
This column originally appeared in the Cincinnati Enquirer under the headline "Common sense has a checkered history | Strictly Legal."
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