Washington's Delusion of Endless World Dominion: China and the US Struggle over Eurasia, the Epicenter of World Power

By Alfred McCoy, TomDispatch

22 March 21

 

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Honestly, it’s the sort of thing that would be genuinely funny, if it weren’t so grim. You’ve certainly heard about that deal President Trump made with the Taliban ensuring that the last 2,500 American troops in Afghanistan would be withdrawn by May 21st. It’s been in the news for weeks now as a potential crisis for the Biden administration. Whatever may still be up for grabs there, however, one thing was a given: that 2,500 figure. After all, the president signed on to that agreement and who would have had better information about this country’s troop deployments than the commander-in-chief? (Let’s leave aside, for the moment, the 700 or more U.S. troops left in Syria after American officials assured President Trump that almost all of them had been withdrawn.)

As it happens, only the other day the New York Times revealed that there was indeed a tiny counting error (whoops!) when it came to that number. If you included all the “off the books” special operations forces and various “transitioning” units in Afghanistan, the total was actually… hmmm… 3,500 (if that’s even accurate). Not only that, but stationed in numerous other countries “from Syria to Yemen to Mali,” as the Times reporters put it, are similarly off-the-books and unacknowledged U.S. military personnel meant to fight America’s disastrous global war on terror.

In other words, almost two decades after that “war” across much of the Greater Middle East and ever-expanding parts of Africa was launched by President George W. Bush with the invasion of Afghanistan (a “war” theoretically aimed, according to the secretary of defense of that moment, at 60 countries), presidents may come and go, but the U.S. military just fights on. Engaged as it is in imperial conflicts of disaster, its high command is clearly convinced that it’s in charge and the commander-in-chief be damned.

And yet here may be the strangest thing of all: forget those global conflicts (one more disastrous than the next), all those garrisons around the planet, all the invasions and interventions of this century. In this country, the United States is essentially never treated as the great imperial power (or even, at this moment, the faltering one) that it is — not in the mainstream media, anyway. And yet if you don’t imagine this country as an imperial power of the first order, the history of this planet, of us, makes little sense. Fortunately, Alfred McCoy is a great historian of empire as well as a TomDispatch regular. His previous Dispatch book, In the Shadows of the American Century: The Rise and Decline of U.S. Global Power, followed that most imperial of powers through the last half-century-plus. In his piece today, McCoy gives us a sneak introduction to his new book, an imperial history extending from the 1600s into a future in which the very word “imperial” may lose much of its meaning on a heating planet. That book, To Govern the Globe: World Orders and Catastrophic Change, will be published by Dispatch Books in October. In the meantime, you can get your first taste of it below. Tom

-Tom Engelhardt, TomDispatch

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Washington’s Delusion of Endless World Dominion
China and the U.S. Struggle over Eurasia, the Epicenter of World Power

mpires live and die by their illusions. Visions of empowerment can inspire nations to scale the heights of global hegemony. Similarly, however, illusions of omnipotence can send fading empires crashing into oblivion. So it was with Great Britain in the 1950s and so it may be with the United States today.

By 1956, Britain had exploited its global empire shamelessly for a decade in an effort to lift its domestic economy out of the rubble of World War II. It was looking forward to doing so for many decades to come. Then an obscure Egyptian army colonel named Gamal Abdel Nasser seized the Suez Canal and Britain’s establishment erupted in a paroxysm of racist outrage. The prime minister of the day, Sir Antony Eden, forged an alliance with France and Israel to send six aircraft carriers to the Suez area, smash Egypt’s tank force in the Sinai desert, and sweep its air force from the skies.

But Nasser grasped the deeper geopolitics of empire in a way that British leaders had long forgotten. The Suez Canal was the strategic hinge that tied Britain to its Asian empire — to British Petroleum’s oil fields in the Persian Gulf and the sea lanes to Singapore and beyond. So, in a geopolitical masterstroke, he simply filled a few rusting freighters with rocks and sank them at the entrance to the canal, snapping that hinge in a single gesture. After Eden was forced to withdraw British forces in a humiliating defeat, the once-mighty British pound trembled at the precipice of collapse and, overnight, the sense of imperial power in England seemed to vanish like a desert mirage.

Two Decades of Delusions

In a similar manner, Washington’s hubris is finding its nemesis in China’s President Xi Jinping and his grand strategy for uniting Eurasia into the world’s largest economic bloc. For two decades, as China climbed, step by step, toward global eminence, Washington’s inside-the-Beltway power elite was blinded by its overarching dreams of eternal military omnipotence. In the process, from Bill Clinton’s administration to Joe Biden’s, Washington’s China policy has morphed from illusion directly into a state of bipartisan delusion.

Back in 2000, the Clinton administration believed that, if admitted to the World Trade Organization, Beijing would play the global game strictly by Washington’s rules. When China started playing imperial hardball instead — stealing patents, forcing companies to turn over trade secrets, and manipulating its currency to increase its exports — the elite journal Foreign Affairs tut-tutted that such charges had “little merit,” urging Washington to avoid “an all-out trade war” by learning to “respect difference and look for common ground.”

Within just three years, a flood of exports produced by China’s low-wage workforce, drawn from 20% of the world’s population, began shutting down factories across America. The AFL-CIO labor confederation then started accusing Beijing of illegally “dumping” its goods in the U.S. at below-market prices. The administration of George W. Bush, however, dismissed the charges for lack of “conclusive evidence,” allowing Beijing’s export juggernaut to grind on unimpeded.

For the most part, the Bush-Cheney White House simply ignored China, instead invading Iraq in 2003, launching a strategy that was supposed to give the U.S. lasting dominion over the Middle East’s vast oil reserves. By the time Washington withdrew from Baghdad in 2011, having wasted up to $5.4 trillion on the misbegotten invasion and occupation of that country, fracking had left America on the edge of energy independence, while oil was joining cordwood and coal as a fuel whose days were numbered, potentially rendering the future Middle East geopolitically irrelevant.

While Washington had been pouring blood and treasure into desert sands, Beijing was making itself into the world’s workshop. It had amassed $4 trillion in foreign exchange, which it began investing in an ambitious scheme it called the Belt and Road Initiative to unify Eurasia via history’s largest set of infrastructure projects. Hoping to counter that move with a bold geopolitical gambit, President Barack Obama tried to check China with a new strategy that he called a “pivot to Asia.” It was to entail a global military shift of U.S. forces to the Pacific and a drawing of Eurasia’s commerce toward America through a new set of trade pacts. The scheme, brilliant in the abstract, soon crashed head-first into some harsh realities. As a start, extricating the U.S. military from the mess it had made in the Greater Middle East proved far harder than imagined. Meanwhile, getting big global trade treaties approved as anti-globalization populism surged across America — fueled by factory closures and stagnant wages — turned out, in the end, to be impossible.

Even President Obama underestimated the seriousness of China’s sustained challenge to this country’s global power. “Across the ideological spectrum, we in the U.S. foreign policy community,” two senior Obama officials would later write, “shared the underlying belief that U.S. power and hegemony could readily mold China to the United States’ liking… All sides of the policy debate erred.”

Breaking with the Beltway consensus about China, Donald Trump would spend two years of his presidency fighting a trade war, thinking he could use America’s economic power — in the end, just a few tariffs — to bring Beijing to its knees. Despite his administration’s incredibly erratic foreign policy, its recognition of China’s challenge would prove surprisingly consistent. Trump’s former national security adviser H.R. McMaster would, for instance, observe that Washington had empowered “a nation whose leaders were determined not only to displace the United States in Asia, but also to promote a rival economic and governance model globally.” Similarly, Trump’s State Department warned that Beijing harbored “hegemonic ambitions” aimed at “displacing the United States as the world’s foremost power.”

In the end, however, Trump would capitulate. By January 2020, his trade war would have devastated this country’s agricultural exports, while inflicting heavy losses on its commercial supply chain, forcing the White House to rescind some of those punitive tariffs in exchange for Beijing’s unenforceable promises to purchase more American goods. Despite a celebratory White House signing ceremony, that deal represented little more than a surrender.

Joe Biden’s Imperial Illusions

Even now, after these 20 years of bipartisan failure, Washington’s imperial illusions persist. The Biden administration and its inside-the-Beltway foreign-policy experts seem to think that China is a problem like Covid-19 that can be managed simply by being the un-Trump. Last December, a pair of professors writing in the establishment journal Foreign Affairs typically opined that “America may one day look back on China the way they now view the Soviet Union,” that is, “as a dangerous rival whose evident strengths concealed stagnation and vulnerability.”

Sure, China might be surpassing this country in multiple economic metrics and building up its military power, said Ryan Hass, the former China director in Obama’s National Security Council, but it is not 10 feet tall. China’s population, he pointed out, is aging, its debt ballooning, and its politics “increasingly sclerotic.” In the event of conflict, China is geopolitically “vulnerable when it comes to food and energy security,” since its navy is unable to prevent it “from being cut off from vital supplies.”

In the months before the 2020 presidential election, a former official in Obama’s State Department, Jake Sullivan, began auditioning for appointment as Biden’s national security adviser by staking out a similar position. In Foreign Affairs, he argued that China might be “more formidable economically… than the Soviet Union ever was,” but Washington could still achieve “a steady state of… coexistence on terms favorable to U.S. interests and values.” Although China was clearly trying “to establish itself as the world’s leading power,” he added, America “still has the ability to more than hold its own in that competition,” just as long as it avoids Trump’s “trajectory of self-sabotage.”

As expected from such a skilled courtier, Sullivan’s views coincided carefully with those of his future boss, Joe Biden. In his main foreign policy manifesto for the 2020 presidential campaign, candidate Biden argued that “to win the competition for the future against China,” the U.S. had to “sharpen its innovative edge and unite the economic might of democracies around the world.”

All these men are veteran foreign policy professionals with a wealth of international experience. Yet they seem oblivious to the geopolitical foundations for global power that Xi Jinping, like Nasser before him, seemed to grasp so intuitively. Like the British establishment of the 1950s, these American leaders have been on top of the world for so long that they’ve forgotten how they got there.

In the aftermath of World War II, America’s Cold War leaders had a clear understanding that their global power, like Britain’s before it, would depend on control over Eurasia. For the previous 400 years, every would-be global hegemon had struggled to dominate that vast land mass. In the sixteenth century, Portugal had dotted continental coastlines with 50 fortified ports (feitorias) stretching from Lisbon to the Straits of Malacca (which connect the Indian Ocean to the Pacific), just as, in the late nineteenth century, Great Britain would rule the waves through naval bastions that stretched from Scapa Flow, Scotland, to Singapore.

While Portugal’s strategy, as recorded in royal decrees, was focused on controlling maritime choke points, Britain benefitted from the systematic study of geopolitics by the geographer Sir Halford Mackinder, who argued that the key to global power was control over Eurasia and, more broadly, a tri-continental “world island” comprised of Asia, Europe, and Africa. As strong as those empires were in their day, no imperial power fully perfected its global reach by capturing both axial ends of Eurasia — until America came on the scene.

The Cold War Struggle for Control over Eurasia

During its first decade as the globe’s great hegemon at the close of World War II, Washington quite self-consciously set out to build an apparatus of awesome military power that would allow it to dominate the sprawling Eurasian land mass. With each passing decade, layer upon layer of weaponry and an ever-growing network of military bastions were combined to “contain” communism behind a 5,000-mile Iron Curtain that arched across Eurasia, from the Berlin Wall to the Demilitarized Zone near Seoul, South Korea.

Through its post-World War II occupation of the defeated Axis powers, Germany and Japan, Washington seized military bases, large and small, at both ends of Eurasia. In Japan, for example, its military would occupy approximately 100 installations from Misawa air base in the far north to Sasebo naval base in the south.

Soon after, as Washington reeled from the twin shocks of a communist victory in China and the start of the Korean war in June 1950, the National Security Council adopted NSC-68, a memorandum making it clear that control of Eurasia would be the key to its global power struggle against communism. “Soviet efforts are now directed toward the domination of the Eurasian land mass,” read that foundational document. The U.S., it insisted, must expand its military yet again “to deter, if possible, Soviet expansion, and to defeat, if necessary, aggressive Soviet or Soviet-directed actions.”

As the Pentagon’s budget quadrupled from $13.5 billion to $48.2 billion in the early 1950s in pursuit of that strategic mission, Washington quickly built a chain of 500 military installations ringing that landmass, from the massive Ramstein air base in West Germany to vast, sprawling naval bases at Subic Bay in the Philippines and Yokosuka, Japan.

Such bases were the visible manifestation of a chain of mutual defense pacts organized across the breadth of Eurasia, from the North Atlantic Treaty Organization (NATO) in Europe to a security treaty, ANZUS, involving Australia, New Zealand, and the U.S. in the South Pacific. Along the strategic island chain facing Asia known as the Pacific littoral, Washington quickly cemented its position through bilateral defense pacts with Japan, South Korea, the Philippines, and Australia.

Along the Iron Curtain running through the heart of Europe, 25 active-duty NATO divisions faced 150 Soviet-led Warsaw Pact divisions, both backed by armadas of artillery, tanks, strategic bombers, and nuclear-armed missiles. To patrol the Eurasian continent’s sprawling coastline, Washington mobilized massive naval armadas stiffened by nuclear-armed submarines and aircraft carriers — the 6th Fleet in the Mediterranean and the massive 7th Fleet in the Indian Ocean and the Pacific.

For the next 40 years, Washington’s secret Cold War weapon, the Central Intelligence Agency, or CIA, fought its largest and longest covert wars around the rim of Eurasia. Probing relentlessly for vulnerabilities of any sort in the Sino-Soviet bloc, the CIA mounted a series of small invasions of Tibet and southwest China in the early 1950s; fought a secret war in Laos, mobilizing a 30,000-strong militia of local Hmong villagers during the 1960s; and launched a massive, multibillion dollar covert war against the Red Army in Afghanistan in the 1980s.

During those same four decades, America’s only hot wars were similarly fought at the edge of Eurasia, seeking to contain the expansion of Communist China. On the Korean Peninsula from 1950 to 1953, almost 40,000 Americans (and untold numbers of Koreans) died in Washington’s effort to block the advance of North Korean and Chinese forces across the 38th parallel. In Southeast Asia from 1962 to 1975, some 58,000 American troops (and millions of Vietnamese, Laotians, and Cambodians) died in an unsuccessful attempt to stop the expansion of communists south of the 17th parallel that divided North and South Vietnam.

By the time the Soviet Union imploded in 1990 (just as China was turning into a Communist Party-run capitalist power), the U.S. military had become a global behemoth standing astride the Eurasian continent with more than 700 overseas bases, an air force of 1,763 jet fighters, more than 1,000 ballistic missiles, and a navy of nearly 600 ships, including 15 nuclear carrier battle groups — all linked together by a global system of satellites for communication, navigation, and espionage.

Despite its name, the Global War on Terror after 2001 was actually fought, like the Cold War before it, at the edge of Eurasia. Apart from the invasions of Afghanistan and Iraq, the Air Force and CIA had, within a decade, ringed the southern rim of that landmass with a network of 60 bases for its growing arsenal of Reaper and Predator drones, stretching all the way from the Sigonella Naval Air Station in Sicily to Andersen Air Force Base on the island of Guam. And yet, in that series of failed, never-ending conflicts, the old military formula for “containing,” constraining, and dominating Eurasia was visibly failing. The Global War on Terror proved, in some sense, a long-drawn-out version of Britain’s imperial Suez disaster.

China’s Eurasian Strategy

After all that, it seems remarkable that Washington’s current generation of foreign policy leaders, like Britain’s in the 1950s, is so blindingly oblivious to the geopolitics of empire — in this case, to Beijing’s largely economic bid for global power on that same “world island” (Eurasia plus an adjoining Africa).

It’s not as if China has been hiding some secret strategy. In a 2013 speech at Kazakhstan’s Nazarbayev University, President Xi typically urged the peoples of Central Asia to join with his country to “forge closer economic ties, deepen cooperation, and expand development space in the Eurasian region.” Through trade and infrastructure “connecting the Pacific and the Baltic Sea,” this vast landmass inhabited by close to three billion people could, he said, become “the biggest market in the world with unparalleled potential.”

This development scheme, soon to be dubbed the Belt and Road Initiative, would become a massive effort to economically integrate that “world island” of Africa, Asia, and Europe by investing well more than a trillion dollars — a sum 10 times larger than the famed U.S. Marshall plan that rebuilt a ravaged Europe after World War II. Beijing also established the Asian Infrastructure Investment Bank with an impressive $100 billion in capital and 103 member nations. More recently, China has formed the world’s largest trade bloc with 14 Asia-Pacific partners and, over Washington’s strenuous objections, signed an ambitious financial services agreement with the European Union.

Such investments, almost none of a military nature, quickly fostered the formation of a transcontinental grid of railroads and gas pipelines extending from East Asia to Europe, the Pacific to the Atlantic, all linked to Beijing. In a striking parallel with that sixteenth century chain of 50 fortified Portuguese ports, Beijing has also acquired special access through loans and leases to more than 40 seaports encompassing its own latter-day “world island” — from the Straits of Malacca, across the Indian Ocean, around Africa, and along Europe’s extended coastline from Piraeus, Greece, to Zeebrugge, Belgium.

With its growing wealth, China also built a blue-water navy that, by 2020, already had 360 warships, backed by land-based missiles, jet fighters, and the planet’s second global system of military satellites. That growing force was meant to be the tip of China’s spear aimed at puncturing Washington’s encirclement of Asia. To cut the chain of American installations along the Pacific littoral, Beijing has built eight military bases on tiny (often dredged) islands in the South China Sea and imposed an air defense zone over a portion of the East China Sea. It has also challenged the U.S. Navy’s long-standing dominion over the Indian Ocean by opening its first foreign base at Djibouti in East Africa and building modern ports at Gwadar, Pakistan, and Hambantota, Sri Lanka, with potential military applications.

By now, the inherent strength of Beijing’s geopolitical strategy should be obvious to Washington foreign policy experts, were their insights not clouded by imperial hubris. Ignoring the unbending geopolitics of global power, centered as always on Eurasia, those Washington insiders now coming to power in the Biden administration somehow imagine that there is still a fight to be fought, a competition to be waged, a race to be run. Yet, as with the British in the 1950s, that ship may well have sailed.

By grasping the geopolitical logic of unifying Eurasia’s vast landmass — home to 70% of the world’s population — through transcontinental infrastructures for commerce, energy, finance, and transport, Beijing has rendered Washington’s encircling armadas of aircraft and warships redundant, even irrelevant.

As Sir Halford Mackinder might have put it, had he lived to celebrate his 160th birthday last month, the U.S. dominated Eurasia and thereby the world for 70 years. Now, China is taking control of that strategic continent and global power will surely follow.

However, it will do so on anything but the recognizable planet of the last 400 years. Sooner or later, Washington will undoubtedly have to accept the unbending geopolitical reality that undergirds the latest shift in global power and adapt its foreign policy and fiscal priorities accordingly.

This current version of the Suez syndrome is, nonetheless, anything but the usual. Thanks to longterm imperial development based on fossil fuels, planet Earth itself is now changing in ways dangerous to any power, no matter how imperial or ascendant. So, sooner or later, both Washington and Beijing will have to recognize that we are now in a distinctly dangerous new world where, in the decades to come, without some kind of coordination and global cooperation to curtail climate change, old imperial truths of any sort are likely to be left in the attic of history in a house coming down around all our ears.

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Follow TomDispatch on Twitter and join us on Facebook. Check out the newest Dispatch Books, John Feffer’s new dystopian novel Frostlands (the second in the Splinterlands series), Beverly Gologorsky’s novel Every Body Has a Story, and Tom Engelhardt’s A Nation Unmade by War, as well as Alfred McCoy’s In the Shadows of the American Century: The Rise and Decline of U.S. Global Power and John Dower’s The Violent American Century: War and Terror Since World War II.

Neil Gorsuch Supports an Originalist Theory That Would Destroy Modern Governance

By Mark Joseph Stern, Slate

22 March 21

Just one problem: It’s bunk.

n Thursday, the Columbia Law Review published one of the most important and topical scholarly articles in recent memory, “Delegation at the Founding.” Its authors, Julian Davis Mortenson and Nicholas Bagley, put forth a sweeping argument: They assert that an ascendant legal theory championed by conservative originalists has no actual basis in history. That theory, called the nondelegation doctrine, holds that the Constitution puts strict limits on Congress’ ability to let the executive branch set rules and regulations. Congress, for instance, could not direct the Environmental Protection Agency to set air quality standards that “protect public health,” and let the agency decide what limits on pollution are necessary to meet that goal. Nondelegation doctrine has enormous consequences for the federal government’s ability to function, since Congress typically sets broad goals and directs agencies to figure out how to achieve them. The theory is supported by a majority of the current Supreme Court; in 2019, Justice Neil Gorsuch signaled his eagerness to apply the doctrine, and at least four other conservative justices have joined his crusade.

Gorsuch and his allies in academia insist that the men who wrote the Constitution believed in the nondelegation doctrine, giving the theory an originalist pedigree. Yet Mortenson and Bagley, both law professors at the University of Michigan and former Supreme Court clerks, have painstakingly debunked originalists’ claims of historical support for the doctrine. The publication of their article presents a grave challenge to conservative originalists like Gorsuch who purport to follow the evidence even when it leads to an outcome that clashes with their political preferences. As Mortenson and Bagley put it: “You can be an originalist or you can be committed to the nondelegation doctrine. But you can’t be both.”

On Thursday, I spoke with the authors about their paper and the response it has already provoked among academics with near-dogmatic faith in the doctrine they debunk. Our conversation has been edited for length and clarity.

Mark Joseph Stern: What is the nondelegation doctrine?

Julian Davis Mortenson: Nondelegation is a judicially created doctrine that has had exactly one year of actual existence, 1935, over the 2½ centuries of the American republic. It says, in essence, that only Congress can make rules that govern private conduct, and all administrative agencies can do is apply the rules and maybe fill in some small details about the rules in the course of doing their work.

What happened in 1935?

Mortenson: The Supreme Court was very hostile to the New Deal, to economic interventionism. And it issued two opinions concluding that Congress had given the president too much discretion without giving him enough guidance. Those decisions happen, and then the doctrine is gone for many years.

Nicholas Bagley: It’s pretty much dormant until the 1980s and 1990s, when the conservative legal establishment starts to poke around for doctrines that might be able to restrain the federal government at a time when they felt it was too big, too powerful, and doing too much at the states’ expense. Conservative scholars glom onto nondelegation and start pushing for its reinvigoration in the courts. The Supreme Court slapped that down in 2001 in a unanimous decision written by none other than Justice [Antonin] Scalia. He said: Look, we’re not going to play this game. There’s no principled way for a court to draw these distinctions. We’re going to trust Congress to take care of protecting its own prerogatives.

At the same time, Justice [Clarence] Thomas writes separately to say: I’m open to reviving the doctrine. Start making an argument to me based in originalist materials that might allow me to get to that result. So originalist scholars start to build an argument. They write long law review articles and books that give the theory a patina of historical credentials. That was new, because until then, nondelegation was not primarily a claim about what the Framers believed in. It was a claim about how we ought to properly structure our government today—we want the legislature to make the important decisions, not beady-eyed bureaucrats.

You spent an enormous amount of time reviewing these originalist theories and assessing them in light of tens of thousands of pages of historical evidence. What did you find?

Bagley: When you talk about the founding era, there’s an awful lot to draw on because founders talked about their new Constitution all the time. If nondelegation was a thing, you should expect to find direct evidence of it. You’d expect it to arise in debates over laws that empower the president to act without much guidance from Congress. And when you look at those debates, it never crops up. It never shows up at all. And when you look at the practice before ratification, the founders delegated power all the time. It’s not a surprise that when they formed this new Constitution, they continued that pattern. If you take a hard look at the evidence people claim for the nondelegation doctrine, it falls apart in your hands. As a matter of historical inference, it can’t stand. History is not a game. It’s not infinitely flexible. You can’t read into it whatever you want.

Scholars often look to practice at the founding to determine the meaning of the Constitution. What did you learn about delegation in this period?

Mortenson: Delegation was deeply embedded in the operating system of governance throughout the founding period and throughout the 18^th century. There is pervasive delegation in every direction throughout Anglo-American governance. The standard move for nondelegation theorists, faced with this avalanche of evidence that this is how the founders governed, is to say: Ah, the Constitution changed everything. The fact that it has “vesting clauses,” which vest power in the different branches of government, changed everything. If that were true, you’d think the founders might have said so at some point during the writing and ratification of the Constitution, which had highly learned debates about its meaning. But they didn’t! The story of radical discontinuity just doesn’t add up.

Proponents of the theory often claim to have James Madison on their side. Why?

Bagley: The best evidence originalists have mustered is a debate in the second Congress over the location of post roads. At first, Congress thought, let’s specify every single town that these roads will run through, because we want them in places that are important politically and financially. Then a proposal was put on the floor to say, let’s not do this ourselves—let’s give this to the president. Several members of Congress, including James Madison, object; Madison says the proposal would be unconstitutional. The other members laugh at them and say, you think this is somehow unconstitutional? You’re making up an argument because you want to retain control over the roads! In the end, Congress retains the authority over the post roads—but delegates additional authority to the president to create new post roads at his discretion. That’s exactly what Madison claimed was unconstitutional!

No originalist has proposed reviving a doctrine like the one they think they find in the second Congress. It doesn’t align with any of the extant theories about what a nondelegation doctrine would look like. If you assume that the nondelegation doctrine would preclude the president from doing something as banal as choosing the location of post roads, you basically are consigning the entire federal government to the rubbish heap. So the best originalist evidence for nondelegation is based on opportunistic arguments roundly rejected by the very coalition that, originalists claim, universally believed in the existence of this doctrine.

Mortenson: Originalists’ core piece of evidence is a set of losing claims invented more or less on the spot by a minority of one house of Congress that is completely at odds with the basis of the theory they’re advocating today. It’s all reverse-gerrymandered to pretend that overwhelming evidence to the contrary can be explained away if you just dance your feet fast enough.

Drafts of your article have been circulating for some time now. How have originalist proponents of the doctrine responded to it?

Mortenson: The retreat has been to claims about the necessary implications of structure and deep values that you can glean if you press your forehead against the text of the Constitution. It’s just making stuff up and calling it constitutional law. These are policy claims. And they’re shockingly similar to the arguments for unwritten rights in the Constitution that conservative originalists have derided for decades. When those arguments about structure and values and penumbras and emanations are made in service of abortion and LGBTQ equality, they are derided by originalists as contemptuous of democracy. For decades I’ve been told, “Keep your policy claims out of our Constitution.” I don’t see why the shoe doesn’t go on both feet.

Bagley: The nondelegation doctrine is at the heart of the conservative legal movement’s reform agenda. To the extent that it’s unavailable given their methodological commitments, that’s a real problem. The public responses have been to deny the force of the historical evidence that we supply, to insist that the historical record says something it doesn’t. I don’t find these historical responses persuasive. I’m struck by how thin they seem to me. And I’m struck by how otherwise smart people can endorse them. If you want to tell me it’s better to have this rule, fine. But you’re making a claim about the living Constitution as it evolves to deal with certain circumstances.

Do you have any hope that originalist judges like Gorsuch will read your paper and change their mind?

Mortenson: I have hope. I read Justice Gorsuch as very earnest and thoughtful. I think our research is so overwhelming that he might be willing to listen.

Bagley: [Pause.] When I clerked for Justice Stevens, he would circulate an opinion or a dissent and say, “You know, Nick, I think we’re going to persuade some people with this one.” Then he’d circulate it and he would get zero votes. I admired the optimism.