April 19, 2010
Nostalgia All Over Again
Posted by Mae Kuykendall
Here is a revisit of my post of April 8 on Nostalgia in Corporate Law.  In that post, I conceded that treating claims about the history of corporations in the United States as a case of nostalgia could be regarded as simplistic, at least insofar as one could read it as offering a reason to approve the holding of Citizens United.
 
A first addition to the post is to classify the "erosion doctrine" as the story of a fall from grace, which historians call a "declension narrative." The term, brought to my attention by Harwell Wells (who has written about the same William Z. Ripley featured in my earlier post), describes a narrative that starts with a Golden Age from which a sad and relentless fall has ensued, especially after some critical event.  According to a Freakonomics blog by James McWilliams in the NYT, the primitive food movement  is a declension narrative:  "Americans once lived on small farms, ate locally-produced food, did not poison the soil with chemicals, and always knew from whence their food came. Then industrialization and urbanization hit, bringing us mass production, factory farming, chemical dependence, culinary uniformity, global trade, and, eventually, the Twinkie.  Eaters became separated from the means of production.  We lost our culinary innocence, fell from grace, and got fat."
 
When launched by a speaker or a writer, the evocation of a Golden Age as the first note is an alert that what follows may not be all that analytically rigorous.  Prof. Wells explains to me historians' application of the term to the Puritans, who "from the moment they got here decided things were going to hell in a handbasket and constantly looked back to the purer, earlier days of their colony." 
 
On the other hand, the sweeping review of history by the late Professor Harold Berman in Law and Revolution: The Formation of the Western Legal Tradition gives nostalgia a pride of place in legal change.  "The myth of a return to an earlier time is ... the hallmark of all European revolution.  Luther ... preached a return to early Christianity following its betrayal by the papacy.  The English Puritans under Cromwell preached a restoration of "ancient English liberties" after one hundred and fifty years of Tudor despotism.  The French revolution went back to classical antiquity and a state of nature to combat feudalism and aristocratic privilege.  The Russian Bolsheviks preached a return to the classless society of primitive tribes before the dawn of property."  
 
As one friend writes me, "The law requires some sense of the prior, and justified."
 
So, declension narratives can generate revolutionary change, even inflict damage on snack food sales.  They motivate powerful political movements. 
 
Time will tell whether there are such narratives within the United States capable of generating large political upheaval.  Given the attachment of American politicians to the rhetoric of optimism (Bob Dole: "most optimistic man in America"), it's less than likely.

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