What is COMMON SENSE?
Sound practical judgment; that degree of intelligence and reason, as exercised upon the relations of persons and things and the ordinary affairs of life, which is possessed by the generality of mankind, and which would suffice to direct the conduct and actions of the individual in a manner to agree with the behavior of ordinary persons.
The common sense Thomas Paine appealed to was popular sentiment devoid of philosophical nuance. In his words;
“I offer nothing more than simple facts, plain arguments, and common sense: and have no other preliminaries to settle with the reader, than that he will divest himself of prejudice and prepossession, and suffer his reason and his feelings to determine for themselves: that he will put on, or rather that he will not put off, the true character of a man, and generously enlarge his views beyond the present day.”
The Fifth Circuit Divides on Qualified Immunity, and Originalism
Judges Ho and Oldham: “Originalism for plaintiffs, but not for police officers, is not principled judging. Originalism for me, but not for thee, is not originalism at all.”
The Citizens and Jury Trials
When a jury presided over a case, a defendant could expect the judgment of peers who possessed the common moral sense of the community, and with it, local standards of reasonableness, fairness, and justice. A defendant was at the mercy of common sense: a jury brought with it the innate apprehension of self-evident moral truths, combined with the common judgments as they had been refined within that jurisdiction.
The jury system also enabled a sense of commonality to emerge among the jurors. Impaneled jurors received the cultivating benefits of affirming civic duty, the fearsome responsibility of representing the people, and the opportunity to revisit and discuss a shared moral sense with a cross-section of their community.
It followed, therefore, that the common law according to James Wilson had a democratic character, a character that Americans could proactively institutionalize through the jury so that the common sense of the American people could directly influence the common law over time.
In turn, the common law could inform and mold the common sense of future generations. Wilson’s design was that every court could serve as a court of common sense: not the haphazard common sense of shallow propaganda, nor the forged common sense of a few enlightened authority figures, but the dispassionate, benevolent, and well-reasoned common sense of a truly self-governing people.