code is law
A DECADE AGO, IN THE SPRING OF 1989, COMMUNISM IN EUROPE DIED—COLLAPSED, AS a tent would fall if its main post were removed. No war or revolution brought communism to its end. Exhaustion did. Born in its place across Central and Eastern Europe was a new political regime, the beginnings of a new political society.
For constitutionalists (as I am), this was a heady time. I had just graduated from law school in 1989, and in 1991 I began teaching at the University of Chicago. Chicago had a center devoted to the study of the emerging democracies in Central and Eastern Europe. I was a part of that center. Over the next five years I spent more hours on airplanes, and more mornings drinking bad coffee, than I care to remember.
Eastern and Central Europe were filled with Americans telling former Communists how they should govern. The advice was endless and silly. Some of these visitors literally sold constitutions to the emerging constitutional republics; the balance had innumerable half-baked ideas about how the new nations should be governed. These Americans came from a nation where constitutionalism had worked, yet apparently had no due why.
The center's mission, however, was not to advise. We knew too little to guide. Our aim was to watch and gather data about the transitions and how they progressed. We wanted to understand the change, not direct it.
What we saw was striking, if understandable. Those first moments after communism's collapse were filled with antigovernmental passion—with a surge of anger directed against the state and against state regulation. Leave us alone, the people seemed to say. Let the market and nongovernmental organizations—a new society—take government's place. After generations of communism, this reaction was completely understandable. What compromise could there be with the instrument of your repression?
A certain American rhetoric supported much in this reaction. A rhetoric of libertarianism. Just let the market reign and keep the government out of the way, and