Tuesday, November 24, 2020
As autumn turns to winter, we all reflexively long for the warmer days of summer. We might also wish for a return to the “normalcy” of pre-COVID-19 holiday gatherings with dear family and friends, or for a more “normal” political climate, or for a more “normal” era of employment and financial security prior to the digital age. But in longing for those normal times, we often fail to acknowledge the negative feelings that came with them. We ignore the insufferable heat waves of summer, or the bickering relatives at the dinner table, as we imagine a return to a better time that, in reality, never existed.
The term “nostalgia” is derived from the Greek work “nostos,” or homecoming, and “algos,” or ache. The concept appears across cultures under various guises, but with the common feature that one can long so deeply for a past moment in time as to experience pain at the mere thought of that period. Nostalgia can be classified as personal—where the subject pines for their own past experiences—or historical, where the subject pines for a distant, bygone era that they did not personally experienced. In either form, Nostalgia often involves a degree of self-deception. When a subject feels nostaligic, they idealize the time or place they imagine, focusing on the peaks of that personal or historic period while ignoring the valleys. Nostalgia, though sometimes useful, thus has a dangerously deceptive component; “If overindulged, nostalgia can give rise to a utopia that never existed and never can exist, but that is pursued at all costs, sapping all life and joy and potential from the present.”
Today’s political debates are steeped in such deceptive nostalgic rhetoric. Campaign promises to “Make America Great Again” explicitly appeal to nostalgia for a prior period where crime was lower, employment steadier, and futures more secure. But such appeals gloss over the challenges of those bygone eras, inviting voters to reminisce about glory days that never existed. Those nostalgic appeals disregard the plight of minority populations systematically disadvantaged in decades past; downplay the dangers and challenges of employment in a less-regulated, manufacturing-based economy; and ignore the innumerable ways that technological advances have improved daily life and at least arguably been a boon to society, even as they have imposed painful employment losses and economic retrenchment. Nostalgia is also at the root of campaigns that seek a return to some form of political normalcy, where opposing parties and opposing ideals coexist peacefully and compromise is plentiful. Such compromise was never truly at the root of our political discourse, even in the founding era. Though America’s political parties were less diametrically opposed in previous years, the cold math of the electoral college or Senate majority always made politics a zero-sum game where victories for one party meant losses for others. Even if the political rhetoric can be less heated, there is no returning to a non-existent “normal” era where politics were not cut-throat and compromise was easy to find.
Modern debates over constitutional interpretive philosophy similarly evoke flawed nostalgic thinking, with nostalgic flaws imbedded in many theories. Originalism is partially defined by what Professor Robert W. Gordon calls “nostalgic traditionalism,” a sense that today’s jurisprudence is out of control and a return to earlier times, with “sturdier and sweeter models of social life than the decadent ways into which we have fallen,” is much needed. Whether arguing for interpretations consistent with the original intent or original meaning of constitutional text, originalists place great stock in the wisdom of the text’s authors, which was captured at moments in time characterized by widespread injustices and inequalities that significantly weaken the moral attractiveness of that interpretive method. Such theories also suggest that historical analysis yields concrete, rule-like results; in fact, history is filled with meandering narratives, unclear meanings, and unexpected twists and turns.
Living constitutionalist theories are sometimes guilty of similar nostalgic thinking. Again, selective historical memory is the culprit. Living constitutionalism can be fancifully optimistic about judicial eras that expanded the protections for civil liberties, without rightful deference to the role of legislative redress for perceived social injustices, or the social upheaval caused by drastic changes issued through judicial fiat.
Nostalgia can be heartwarming. Deployed carefully, nostalgia can highlight our missteps as we strive to ascend to a better future. In both the political and judicial realms, though, we should all carefully consider its role in our rhetoric. Nostalgia that is premised upon unduly rosy and inaccurate conceptions of the past is a dangerous, powerful emotion. It oversimplifies the messy truth of history; it presents a painless, simple solution that will surely fail to resolve complex, painful problems. We should all be wary of such nostalgic arguments, whether they arise in courtrooms or around the Thanksgiving dinner table.
 Neel Burton, The Meaning of Nostalgia, Psychology Today, Nov. 27, 2014, https://www.psychologytoday.com/us/blog/hide-and-seek/201411/the-meaning-nostalgia.
 “Longing for our own past is referred to as personal nostalgia, and preferring a distant era is termed historical nostalgia.” Krystine Bacho, Nostalgia Can Be a Useful Psychological Tool—Or a Destructive One, Inverse, June 6, 2017, https://www.inverse.com/article/32591-nostalgia-psychological-tool-helpful-harmful.
 Burton, The Meaning of Nostalgia.
 Robert W. Gordon, Originalism and Nostalgic Traditionalism, in Taming the Past: Essays on Law in History and History in Law 361, 365 (2017).
 Id. at 372 (arguing that when the Constitution was adopted, the government “supported command over slaves, wives, indentured servants, household servants, servants in husbandry, apprentices, paupers, and children,” and claiming that “[o]riginalism as popular nostalgia necessarily hazes over such details”).
 Id. at 368.
 Id. at 379 (“[I]t’s also a useful enterprise for judges—like historians and politicians and everybody else—to check their impulses to ancestor-worship by recalling what is most alien, repellent, and unusable about them.”).