Where else might we see changes? Well, I’m neither a conservative (I’m a libertarian) or a living constitutionalist, but I can imagine a few places. One is in the scope of government power. During the New Deal era, the Supreme Court — after being threatened with “court packing” by FDR — endorsed a massive expansion of governmental power on the ground that it would lead to greater efficiency in the economy. Instead, we got a bloated bureaucracy with serious accountability problems, and a disastrous expansion in spending, regulation and federal debt. Based on this experience, I can imagine a conservative justice who sees the Constitution as a “living breathing organism” that must be kept in tune with the needs of the day deciding that the New Deal Court’s decisions were mistakes that violate the Constitution, and must now be rolled back.

Likewise for the Warren Court’s “one man, one vote” rule for state legislative apportionment, in which states — unlike the federal government under the U.S. Constitution — were no longer allowed to have a house of their legislature apportioned by geography rather than population. The result has been that states like California or Illinois, which is red almost everywhere but in the Chicago metropolitan area, are totally dominated by the large populations of urban centers. Those states are also governed badly and suffer from considerable degrees of corruption and enormous debt. Perhaps experience turns out to show that the “one man one vote” approach was wrong, and that there was wisdom after all in the Framers’ approach of not apportioning everything according to population. A “living Constitution” changes with the times!