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The Administrative State That Never Was

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.