The forthcoming issue of the Claremont Review of Books (CRB) has, among many other fine contributions, my review of Jerry L. Mashaw’s book on Creating the Administrative Constitution: The Lost One-Hundred Years of American Administrative Law—meaning the law preceding the Progressive Era. My own verdict is that really, there wasn’t anything to lose. But it’s kind of complicated: Mashaw presents terrific arguments and evidence that many of the supposed heresies of the Progressive state had a long tradition. Contrary to the claims of textualists, formalists, and many Claremonsters, there never was a “unitary” executive, and delegation began to run riot in, oh, 1789.
If you want to know why—or entertain the contention that—Mashaw is wrong nonetheless, read the review. Better yet: subscribe to the CRB. It’s the most thoughtful, riveting, serious journal out there, bar none.