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Article: Emotional Common Sense as Constitutional Law
- Article from:
- Vanderbilt Law Review
- Article date:
- April 1, 2009
- Author:
CopyrightCopyright Vanderbilt Law Review Apr 2009. Provided by ProQuest LLC. (Hide copyright information)
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In Gonzales v. Carhart the Supreme Court invoked post-abortion regret to justify a ban on a particular abortion procedure. The Court was proudly folk-psychological, representing its observations about women's emotional experiences as "self-evident." That such observations could drive critical leg
al determinations was, apparently, even more self-evident, as it received no mention at all. Far from being sui generis, Carhart reflects a previously unidentified norm permeating constitutional jurisprudence: reliance on what this Article coins "emotional common sense." Emotional common sense is what one unreflectively thinks she knows about emotions. A species of common sense, it seems obvious and ...