Originalism certainly isn’t what it used to be. From a fringe theory with few adherents it has, in recent decades, become the dominant conservative legal weapon deployed against nearly every liberal legal development since the dawn of the twentieth century, particularly the acceptance of the administrative state and the delegation of rulemaking power to agencies. Professor Kurt Eggert’s recent article adds to the mounting evidence that originalism is not a credible legal theory especially when deployed against Congress’s choices concerning the proper structure of the regulatory state.
Jack M. Beermann,
Nondelegation and Originalism
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3366
Reviewing "Originalism Isn't What It Used to Be: The Nondelegation Doctrine, Originalism, and Government by Judiciary" by Kurt Eggert. The article can be found here.