Swamp Water Jurisprudence: It’s just common sense


by Judge Dennis Challeen

How many times have we all heard, “Well, it’s just common sense?” Unfortunately, “common sense” has different meanings depending on the person and the situation.

The definition of “common sense” is the natural ability to make sound and prudent judgment based on a simple perception of the facts by the person making the decision.

I recall on numerous occasions I would have a person before me in court charged with speeding on a motorcycle, exceeding 100 mph. Upon his guilty plea I would ask him, “Why in this world would you risk your life doing such a stupid, dangerous thing?” I would get replies such as, “I wanted to see how fast my cycle could go,” or “I was racing with another guy and I was beating him.”

Which earns them the anonymous quote, “Common sense is like deodorant; the people who need it most never use it.”

Trying to comprehend such a stupid act, I would say, “Do you realize that at that speed the only thing between life and death or permanent disability was a quarter to half an inch of rubber made by some tire manufacturer in some eastern city that stamps out tires by the thousands a day? You have no assurance the tire on your cycle doesn’t have hidden defects. At speeds of over 100 mph your tires are experiencing centrifugal force that could burst a defective tire and send you flying into the air and crashing onto the highway with a force beyond any human body’s ability to resist.” They, of course, had never considered this possibility. My conclusion was that these people were not using any “common sense” whatsoever, and ignoring obvious danger and risking their lives for nonsensical reasons, relying upon factors beyond their control.

Back in the 1970s all states had mandatory motorcycle helmet laws, or the states risked financial penalties from the federal government. The law changed in 1977 and Minnesota and Wisconsin repealed their helmet laws except for bikers under the age of 18. Today 19 states and D.C. require all motorcyclists to wear helmets. In three states, including Iowa, no helmets are required.

Now let’s apply some “common sense” to the issue of helmet laws. According to the CDC (Center for Disease Control & Prevention):

Helmets saved an estimated 1,772 lives in 2015. If all motorcyclists had worn helmets in 2015, 740 more lives could have been saved. Helmets reduce the risk of death by 37 percent and the risk of head injury by 69 percent. “The research shows that universal helmet laws are the most effective way to reduce the number of deaths and traumatic brain injuries that result from crashes.”

That is some “common sense” that is ignored. I’m told that many riders don’t like the way they look when wearing a helmet and they enjoy the feeling of open air flowing through their handsome wavy locks. I was often told in court that if I want to smash my head on the highway it’s my business, not the government’s. I responded that if they choose to live dangerously they’d better not end up in a vegetative existence in a hospital for years at millions of dollars of government expense. This would bring merely a shrug and silence.

Our nation began with a dose of “Common Sense” when Thomas Paine wrote a pamphlet by that title which challenged British rule and the royal monarchy. Using plain language the common folk could understand, it was read by a vast audience of colonials who felt they wanted independence but were afraid to speak or think so. Paine’s “Common Sense” (1776) is credited with being the first step toward our war for independence.

Albert Einstein put it simply that “common sense” is the collection of our prejudices. Whatever fits into a person’s preconceived prejudices becomes “common sense.” If it doesn’t fit, it becomes “no common sense” or “nonsense.”

There is support for Einstein’s theory in research done by the PEW Research Center’s survey, where they asked Republicans and Democrats whether they feared the other party. Majorities in both parties express not just unfavorable but very unfavorable views of the other party. This suggests that people who hold such strong views do not understand — nor willingly embrace — the word compromise.

Democrats believe it’s just “common sense” that the Republican Party only looks out for the rich. Republicans believe it’s just “common sense” that Democrats are lazy and want to penalize success and reward failure.

That’s “common sense” run amuck … called “stereotyping” and “painting with a broad brush.”

Descartes said, “Common sense is the most widely shared commodity in the world, for every man is convinced that he is well supplied with it.”

American author and humorist Mark Twain concluded “I’ve found that common sense ain’t so common.”

Now there’s some “common sense” we can all agree with.


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