Common Sense

Thomas Paine’s claim to be acclaimed as “the father of the American Revolution” rests in no small part on the 49-page pamphlet Common Sense he published on January 10, 1776, as the War of Independence entered its second year. It was a huge success—when its press run is considered in proportion to the population at the time, Common Sense remains the best-selling American book ever—and was not only read quietly by people in the privacy of their homes but was actually declaimed aloud in taverns and in public gathering spots as a way of martialing public support for the effort to gain independence for the thirteen colonies. I read it first in high school and still remember imagining myself as an eighteenth-century high school student being moved to embrace the insurgency because of Paine’s bold, persuasive argumentation. (I was that kind of eleventh grader.)

Paine packs a lot into relatively few pages, but his main argument is that sometimes you have to step aside from fossilized allegiance to past attitudes, timidity regarding the possible consequences of enlightened action, and the inertia that results when people choose to mimic their own past behavior rather than to act as thoughtful, self-directed individuals. He concedes, for example, that it is natural and normal for people to feel a deep sense of allegiance to the individuals that legally govern them. But when those individuals—he was writing unambiguously about the British—when those individuals themselves behave in a way that belies their commitment to the wellbeing of the governed, then common sense dictates that that allegiance be set aside and a finer, nobler, and more enlightened path forward into the future be taken. Similarly, he notes, it is natural to feel that one’s own nation’s armed forces are in place to protect and make secure the citizenry. But when that army is used not to buttress the natural rights of the citizenry to thrive in their own places and to make them safe, but to force them to submit to unfair, unprincipled, and unjust laws imposed upon them from without, then common sense dictates that that natural inclination to think of one’s own army as being on one’s own side needs itself to be set aside and replaced with a set of emotions more related to reality.

It’s a stirring read and one of the truly essential works for any who would understand our nation’s founders and the mindset of the American people (or rather, the future American people) on the eve of revolution. If you haven’t read it, click here for a very legible, clearly laid-out online version. I mention Common Sense today, however, not specifically because of its role in our nation’s history, but because I wish to apply its chief argument to our current reality by asserting, in Paine’s style, that sometimes you really do need to set aside your priorly held beliefs and assumptions and choose instead to look out at the world through the lens of self-generated common sense.

This week’s Supreme Court decision regarding the legal meaning of the text in Title VII of the 1964 Civil Rights Act that referenced discrimination imposed on the discriminated-against party “because of sex” is a good example of how this notion of this could and should work. It goes without saying that the framers of the act were thinking more about gender-based discrimination than the kind that turns on the discriminated-against party’s sexual orientation. And Justice Gorsuch conceded that too, going so far as to address that particular point in his majority opinion and to concede that the act’s framers would probably not have anticipated the extension of their law to cover discrimination based on sexual orientation or gender identity. Nonetheless, he wrote—and this is key—that “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.” That, I think, is common-sense thinking at its most basic level.

And, indeed, the counterargument as set forth in Justice Samuel Alito’s dissent (in which he was joined by Justice Clarence Thomas) was based precisely on the repudiation of Justice Gorsuch’s argument and argued instead that the fact that the act’s framers almost definitely did not mean to outlaw anti-gay discrimination makes it somewhere between spurious and wholly illegitimate for the Court retroactively to assign that meaning to their words. None of the principal players is alive today, so we can’t ask if they would approve of extending their legislation to protect the rights of gay citizens. Nor, obviously, can we travel back to 1964 to pose that question to legislators then all among the living. But—and this is the real point—we also cannot invite them to 2020 to see what has become of the world that they inhabited more than half a century ago and then either to revise or not revise their original intent. And so we are left with no real option other than to rely on common sense to tell us how best to approach the issue at hand and whether or not it makes sense to apply Title VII in the way the Supreme Court did earlier this week. And that is why I—who also doubt that the framers of the 1964 act were specifically thinking about anti-gay discrimination when they referenced discrimination “because of sex” in the text of the Act—think the Court’s decision was reasonable and just.

This notion—that the way to deal with the legal heritage of bygone centuries is to apply common sense to the laws under consideration and then to focus not on what the individuals responsible for their original formulation meant in their day but on what we conclude they would have meant if they were present to observe our world and to legislate in its regard—this notion is not only familiar and logical to me, but serves as perhaps the most basic single principle of Jewish law.

Outsiders are sometimes amazed that, for all the Torah is venerated endlessly as the word of God, we specifically do not make legal decisions based solely on the laws presented therein. We do not, for example, sanction any number of things that Scripture endorses as reasonable features of societal living. Slavery itself would be the best example. But there are also many others, including the notion of executing disobedient adult children, that were simply and universally set aside because the moral universe in which they were conceived is simply not the one in which Jewish people today live. The Torah talks about the specific way in which a virile soldier can force an attractive female prison-of-war into his bed, but there is not a single authority anywhere in the Jewish world—with no exceptions of any sort—who would dream of countenancing that kind of behavior today.

All of the above derive from a world so totally different from our own that applying them to modern society would result, not in the sanctification of God’s name, but in its profanation. But, of course, the question is not whether any of the above is true, but what specific criterion we are to use as we review ancient law and determine what to jettison and what to retain, what to insist remain incumbent upon us and what blithely (or not blithely) to allow to fall into timely desuetude.

The ancient sages who labored away at the science of Jewish law in the study halls of old imagined themselves being guided by the spirit of the living God. But, of course, none of those great rabbis actually was a prophet in the technical (or any) sense—and what they meant was that they perceived the common sense—the amalgam of realism, insight, intelligence, and moral bearing—they brought to the issues before them for adjudication, that common sense itself was the mode in which God speaks today to people willing to listen and eager to live lives in sync with divine values. And so they proceeded to legislate laws in apparent contravention of the plain meaning of Scripture as well as laws that developed Scriptural ideas in directions that seem unrelated to the plain sense of the original biblical text.

Common sense is what is called for in any number of contexts today. Extending federal anti-discrimination protection to a class of people that regularly experiences workplace and non-workplace discrimination is only to use common sense to amplify the clear sense of an older piece of legislation. (Invoking the “because of sex” clause in the Civil Rights Act to argue against the right of shopping mall owners to maintain separate restrooms for men and women, on the other hand, seems to me to fly in the face of common sense.) Working to guarantee that the nation’s police forces function in a way that generates trust among all segments of society rather than resentment, let alone outrage, is also just common sense. (Dismantling police forces without a clear sense of how to maintain order and safety in the nation’s streets in their absence, on the other hand, is an example of acting contrary to common sense.) Renaming army bases and schools named in honor of individuals who led armies into war with the specific aim of defeating and dismantling the republic seems like common sense to me. (But considering Theodore Roosevelt in the same category as Jefferson Davis seems to fly in the face of common sense. Woodrow Wilson [click here], on the other hand, not so much.)