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14 Cardozo L. Rev. 907 (1992 - 1993)
On Property and Constitutionalism

handle is hein.journals/cdozo14 and id is 925 raw text is: ON PROPERTY AND CONSTITUTIONALISM Cass R. Sunstein * INTRODUCTION It is generally understood that the recent revolutions in Eastern Europe are producing a large-scale transition. It is important, how- ever, to distinguish among the quite different features of the current changes. The new reform movements actually involve three distinct transitions. The first is a transition from a command economy to one based on markets. The second is a transition from a system of one- party domination to democracy. The third is a transition from a sys- tem in which government is unconstrained by laws laid down in ad- vance to one of constitutionalism and the rule of law. Although important work is taking place on all these fronts, par- ticipants in current debates generally assume that the three transitions are not closely connected. At the present, and for the foreseeable fu- ture, it seems clear that the transition to markets, and the accompany- ing efforts to promote economic development, will be foremost in the minds of the reformers. Democratization also appears on the agenda, but it usually takes a secondary role. In the meantime, the movement for constitutional reform generally draws little public attention, and indeed has been dwarfed by other matters. In many circles, the draft- ing of the constitution is thought to involve symbolic or even irrele- vant matters having no real connection to the hard pragmatic work of economic and political reform. I believe that the separation of the three transitions, and the de- valuation of constitution-writing, are unfortunate and potentially dan- gerous mistakes. In fact, the transitions are closely related. The right kind of constitution could play an important role in fueling economic development and democratic reform; indeed, under current condi- tions, it may be indispensable to them. The wrong kind of constitu- tion-or no constitution at all-could be devastating to progress in both of these areas. To offer only one example: Firm constitutional protection of • Karl N. Llewellyn Professor of Jurisprudence, Law School and Department of Political Science, University of Chicago; Co-Director, Center on Constitutionalism in Eastern Europe, University of Chicago. I am grateful to Jon Elster, Richard A. Epstein, Wiktor Osiatynski, Stephen Holmes, and Frederick Schauer for helpful comments on a previous draft. Parts of this Essay appeared, in somewhat different form, in Cass R. Sunstein, Constitutionalism, Pros- perity, Democracy: Transition in Eastern Europe, 2 CONST. POL. ECON. 371 (1991), and I am grateful for permission to reprint those parts here. 907

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