THE YEAR OF LIVING CONSTITUTIONALLY

An experiment in following the Constitution’s original meanings.

Having written previously about “living Biblically” for a year, Jacobs turns now to “living Constitutionally”—i.e., imaginatively transporting himself back to 1787 (or, occasionally, later years when amendments were ratified) in order to reflect on the Founding Fathers’ legal and ethical ideals. We follow the author’s (sometimes loose) adoption of late-18th-century customs as he probes, for instance, assumptions about free speech, gender roles, and civic participation and considers profound shifts in cultural sensibilities from the founders’ era to our own. Much of the text is delightfully lighthearted and playful in its recounting of the author’s experiences, but Jacobs consistently offers insightful and informed analysis of the actual content of the Constitution, the reasoning behind it, and the implications of social change and evolving values. Though revered by many as something approximating a sacred and infallible text, the document itself is revealed as a flawed product of its time, steeped in exclusionary prejudices and in many ways incompatible with modern sensibilities, yet still illuminating for its attempt to defend core freedoms and promote a bold version of democracy. The author’s commentary on present-day interpretive debates is particularly rewarding. He provides refreshingly clear and sensible accounts of the anachronistic powers granted to the Supreme Court, the ambiguities inherent in the Second Amendment’s protection of gun rights, and the competing claims made by originalists and so-called living constitutionalists. Jacobs makes the persuasive argument that, in spite of the moral limitations of the founders from a 21st-century perspective, we might learn from the 18th century’s “emphasis on the common good, the quest to control one’s rage, the slow thinking, the experimental mindset, the distaste for aristocracy, and the awe at being able to cast a vote.”

A marvelously witty and wise consideration of the Constitution’s legacy.