Will Baude Responds to Common Good Constitutionalism

David and Sarah are joined by Will Baude, professor of law at the University of ...

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David and Sarah are joined by Will Baude, professor of law at the University of Chicago Law School, to discuss his review of Adrian Vermeule’s new book Common Good Constitutionalism. What is “common good constitutionalism” and can David and Will convince Sarah that it’s a thing? Is international law real? And does anyone have standing in any upcoming legal challenges to President Biden’s student loan debt relief plan?

Show Notes:

–The American Prospect: What Common Good?

–Reason: The “Common-Good” Manifesto

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  1. Christopher

    Would love to flag a comment for David. David I thought you took some potshots at Natural Law theory by in essence I think signaling the Left that this will be used against the Gay Rights movement. I am not so sure that NL properly understood is really hostile in this area. I think, for example, that while Crisis of the House Divided is a great work, most Jaffa fans would love to have forgotten his wanderings in this area...

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  2. Jesseplace

    I could listen to Will Baude talk for hours. This episode was a true treat.

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  3. Eric L

    I’m glad the loan servicers were brought up as potentially having standing.

    Specifically in 2021-2022 there were some reshuffling of servicers where some servicers may have planned to greatly increase their platform. Meaning millions spent on hardware, software, new employees, training, engaging third parties, etc. based on either a contractual amount of loans to service or at a minimum of some due diligence work papers indicating the volume and relative size of new borrowers to service.

    These new expenditures could be completely moot now that there is a significant change in the volume and relative size of existing borrowers.

    Unless these capital expenditures were picked up initially by DoE, I don’t see how a swipe of a pen could materially change a newly inked deal with a private vendor without some compensation to make them whole.

    The problem with this thought is the remedy is money… I don’t see how they could ask for it to simply be reversed.

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    Buddy Atkins

    I love AO and look forward to every single episode. As someone who typically falls left of center both David and Sarah (and the rest of The Dispatch) have proven to be the best place to come in order to better understand "the other side" and challenge my beliefs.

    When they started dipping their toes into discussing some of the higher level concepts central to our judicial system I cannot tell you how excited I was. I love getting their insight on the specific topics of the day, but to get their insight on the more fundamental concepts that really drive our judicial system was everything I never knew I wanted so much.

    However, the more episodes they have that address these topics the more disillusioned I am with them. I don't feel like I am learning anything. This whole conversation around Common Good Constitutionalism was just three people who all agree patting each other on the back for being right without really diving into why they are right.

    I finished the podcast without any understanding of why proponents of Common Good Constitutionalism stand behind it. Heck, I am not even sure I have a basic understanding of what it is.

    I really wish you would have spent a bit more effort steel-manning Common Good Constitutionalism. Either within the three of you or by having your guest expert be a proponent of it that would spend more effort trying to explain/defend it. I have left basically of the episodes that addressed similar high level topics feeling similarly, which is even more of a let down given that the reason fell in love with AO in the first place was because you do such a good job doing the exact opposite in almost every other instance.

    I know you read a lot these comments, Sarah. If you do read all the way through and see this one, hopefully you take this all as a compliment so strong that you spin of a new podcast that focuses entirely on the higher level concepts behind our judicial system where you have a guest on each week who you completely disagree with in order to explore these topics through a civilized, yet adversarial (see what I did there?) approach. Seriously, I would love nothing more.

    Though I will settle for you to continue to deliver quality content for me to challenge myself with as you always have while I nit pick and grumble in the comment section.

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    1. Christopher

      I hate to say this but the problem with using AO as a gauge of opinions on the Right (I am pretty centrist but a little Left) is that the commentators here are coming at this topic in good faith and with a lot of thought and intellect. That alas is not where a lot of the so-called Right comes from these days..

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        Buddy Atkins

        Yes and no.

        There are definitely extremist viewpoints that AO will never help with. But the vast majority of even the crazy right's opinions are at least caricatures of the more traditional conservative opinions held by David and Sarah, not just wild out of nowhere opinions.

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    Kevin M. James

    I rise to take exception to "the exception that proves the rule", a saying that is commonly invoked but which I've rarely seen make any actual sense.

    The two main ways I've seen it used are:

    1) The simplest, perhaps-unthinking, flat-out-nonsensical version:

    "I posit that X accurately describes the reality we live in."

    "But what about this real-world example that directly contradicts X?"

    "Aha! My contention that X accurately describes reality has just gotten stronger from your pointing out a way in which X does not accurately describe reality, because...exception proves the rule!"

    2) The version that tries to elevate the no-true-Scotsman fallacy from mere deflection to affirmative proof:

    "I posit that X accurately describes the reality we live in."

    "But what about this real-world example that directly contradicts X?"

    "Ah, but X doesn't apply to that example, it's different from the others for these reasons...most of all because it's the exception that proves the rule! And thanks to *that*, your example is not a mere irrelevance, but makes my contention that X accurately describes reality that much stronger."

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      Theirn Scott

      I always took that saying to refer to philosophical dualism aka yin and yang.

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      Alexander

      The exception proves the rule is more like "No Parking M-F" proves that parking is allowed on weekends.

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    Ben Connelly

    Sarah says, “I don’t know that I’ve ever met a 25-year-old man” who wasn’t impatient about not wanting to wait his turn in line/go up through the institution, who instead wanted to circumvent the process his elders had established and go right to being in charge.

    Sarah, I think you work with multiple young men who are precisely not the type to undercut their institution and try to get around the processes their elders have established for gaining experience. I think your younger male and female colleagues at TD are absolutely not trying to make themselves in charge but are instead trying to learn the ropes from you and David and Jonah and Steve.

    Is it common for young men (and some young women - including ones you may have known yourself) to behave in the way you describe? Of course. I know some. But I also know plenty who aren’t interested in that, who aren’t engaged in some dumb generational warfare, who don’t believe that the world began when they were born and youth conveys wisdom, but who resent it when they level what they believe are legitimate criticisms at their elders whom they respect and admire and instead of being taken seriously get told that they are engaging in generational warfare and jumping the line.

    It isn’t fair to tarnish someone by association just because they’re the same age as some WaPo journalist who thinks his/her time has come at age 26.

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      Sarah Isgur vertical-nib Author

      But you didn't include the rest of the sentence---I said a 25 year old man that worked as an assistant on a campaign that I was on.

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        Ben Connelly

        Right you gave him as an example. I don’t excuse his behavior. But you did seem to indicate you meant all young men you’d worked with, which I don’t think is fair to your younger colleagues.

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      Ben Connelly

      I very much enjoyed this discussion of CGC. It would be interesting to hear a debate between Baude and Vermuele.

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    LeGrand Northcutt

    David, I can’t remember what episode it was on, but if you are still in the market for an airstream, I have a friend who is downsizing and is trying to sell one. It’s old school— 1977, but she completely remodeled when she bought it in 2005.

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  8. Lane.Patterson

    Sarah. I'm not surprised that you stuck the landing on this, but thank you so much for correctly executing the phrase, 'champing at the bit.'

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  9. Rmarquardt17

    I have a question about the student loan forgiveness situation I'd like to get some feedback on. David made the comment that not all legal questions can be solved by the courts. I think there is something to that. This may come down to being a political question, and all the evidence I've seen is that this is going to backfire for Democrats, at least in the short term. But here's my real question: for a person who is convinced that this unilateral decision by the Biden administration is legally unjustified, is there an ethical obligation to reject the loan forgiveness? I am increasingly convinced that individuals outside the courts need to step up and start taking responsibility for following the best reading of the law without being forced to by a court order.

    For some context, my wife and I graduated with similar undergraduate college debt one year apart from each other. We made the decision to pay down her debt quickly to avoid the interest payments and wait to make any payments on mine while I went to graduate school and had the interest deferred. Now, because of this decision by the Biden administration, I could conceivably have my entire outstanding debt forgiven simply because we decided not to pay it off right away, while we obviously will receive nothing for making the responsible decision to quickly pay off my wife's debt. This disparate outcome inside my own family has shown me clearly how unjust and inequitable this policy is before even getting to any consideration of future society-wide economic impact. So, stipulating that I think the legal grounds claimed for this policy are clearly unfounded, is the solution not simply to reject the debt forgiveness, pay what I believe I am legally obligated to pay (contra the Department of Education, my loan holder!), and vote this administration out of the White House for abuses of power like this?

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    Young Riprock

    But Sarah, in the Latin alphabet, Jehovah starts with an “I”

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