Gregg Smith at Electric City Weblog (John Galt … on the Bench?), quotes District Court Judge Nels Swandal, who was sitting in on the case Wallace v State:
Ayn Rand correctly observed that the right to life is the source of all rights-and the right to property is their only implementation. Without property rights, no other rights are possible. These principles are embodied in the Montana Constitution in Article II, Sections 3 and 29.
The case has to do with voter-passed initiative I-143, which outlawed game farming (grandfathering existing operations) in Montana, specifically, the right to shoot an animal for remuneration.
Here are the cited sections of the constitution:
Section 3. Inalienable rights. All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities.
Section 29. Eminent domain. Private property shall not be taken or damaged for public use without just compensation to the full extent of the loss having been first made to or paid into court for the owner. In the event of litigation, just compensation shall include necessary expenses of litigation to be awarded by the court when the private property owner prevails.
Those who wrote the constitution were not likely thinking about Ayn Rand as they inserted these two clauses. Save for the part about “a clean and healthful environment”, I’m hearing more ‘Founding Fathers’.
Both sides of this case have legitimate claims. Claimants are saying that their rights were unconstitutionally violated because their right to use their own property was abridged without just compensation. The public is saying that its rights are superior to individual private property rights when it comes to shooting captive game for a fee. No matter the outcome, someone is going to be harmed.
Gregg concludes:
Heaven forbid some organized group of activists decides that they don’t like what you do for a living.
It is said that one difference between right and left is that those on the right cannot handle nuance. This is one of those cases. I suspect that the public overstepped its boundaries in passing I-143 – I find shooting captive animals offensive, but as the father of four daughters I also find pole dancing offensive. That doesn’t mean we should outlaw it. But communities can, if they so desire, restrict such behavior, no matter who owns the pole. Individuals have private property rights, the public has the right to regulate the use of that property for the greater good. There are limits on each. Hence, a court system.
It’s a question of where to draw the line, and in participating in the ensuing discussion over there, I am left with the impression that they cannot handle anything beyond a bright red demarcation – Ayn Rand correctly observed that the right to life is the source of all rights-and the right to property is their only implementation.
That statement would be OK if it did not contain the word “correctly”.
But they make a strong case nonetheless – not that there is never a case where the public can prohibit certain business activities, but rather that in this case, the public overstepped. If they, and Swandal, had left Rand out of it, they would made a much clearer and stronger case.
Still, they have manage to convince me that I-143 was a taking, and that just compensation was owed. Officially, I concede. I’m unclear on the matter of spread of disease, but that doesn’t appear to be the matter at the fore. So my taking ensuing the discussion down that road was an unintended diversion.
But citing Rand from the bench … c’mon now. Suppose another judge cited Karl Marx’s views on private property. It would be as meaningful.
Gregg is going to read the entire body of the opinion in Wallace v State. I look forward to his thoughts and conclusions.
Piece of Mindful 
Mark, I coming from left field with this.
I was was thinking about what you said about Marx and even went so far to pull some of his quotes. Quotes, which by the way could never be embodied with our states constitution.
But after reading some of Marx I whipped over to a more friendly site and read this from Michael Barone about the demise of Chrysler.
>>One of my clients,” Lauria told host Frank Beckmann, “was directly threatened by the White House and in essence compelled to withdraw its opposition to the deal under threat that the full force of the White House press corps would destroy its reputation if it continued to fight.”
Lauria represented one of the bondholder firms, Perella Weinberg, which initially rejected the Obama deal that would give the bondholders about 33 cents on the dollar for their secured debts while giving the United Auto Workers retirees about 50 cents on the dollar for their unsecured debts.<<
Classic Labor vs. Capital, wouldn’t ya think? I could just see Karl pounding his fist and threatening those damn Capitalists.
“Capital is dead labor, which, vampire-like, lives only by sucking living labor, and lives the more, the more labor it sucks.”
If a Montana judge had said that, it would have had more meaning.
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My point was the Rand’s views were as ‘out there’ as Marx’s. Both envisioned a system that would, if put into full effect, put us in hell. Marx’s vision was carried out – that’s a whole ‘nother can of worms – but the other side of the coin is what Rand would give us – Charles Dickens wrote about that world.
At Chrysler, both the bond holders and the workers are getting shaved. The difference isn’t that much. What amazes me is how you on the right are so contemptuous towards working people. How, pray tell, did the millionaires get you to wash their laundry for them? Did they, as Bill Maher suspects, convince you that if we raise taxes on the wealthiest, that the gubbmint gonna come to your trailer and take your gun?
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I am just a tad amazed at the horrendous stupidity of the arguments surrounding this issue thus far. Does not ONE of you people understand what a prion is? These game farms were NOT banned to stop shooting of animals, although that is bullshit too. They were stopped to prevent prion disease! The bill was designed to pass legal muster. That’s all. That was the only way to get rid of the damn thngs. Too bad that some whiner game farmers like kenny mesaros lost some money. Bid deal. Game farms are wrong on SO many levels that there really exists NO defense of them. I remember the very first time I ever HEARD of a game farm in Montana. It was when nutjob govt. hater calvin greenup down in the Bitterroot got busted for sumthin’. ONLY wierdos looking for an easy buck were attracted to game farming. Game farms POLLUTE the wild elk that belong to ALL of us! Happens all the time. EVERY game farm has had at least ONE incident of massive escapes which allows genetically altered animals to breed with wild populations. These gamey farmers have absolutely NO right to destroy and endanger the wild elk population that belongs to ALL of us. Yet they have done so, REPEATEDLY! And this whole bullshit about only ONE incident of CWD is a big fat LIE! You see, gamey famers, like doctors, simply bury their mistakes! CWD is the friggin’ elk EQUIVALENT of mad cow, another prion disease. It does NOT infringe on ANYONE’S right to take all preventable measures to prevent its spread. Sorry, I’m not buying ANY argument presented so far. First, someone explain to me that they even understand what a prion is.
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I find private hunting farms offensive, but if they are not harming the public, and apparently they are not, then they should be left alone.
We are lucky here in this state to have so much public land that private game farms are not really needed. In place where there are no public lands, hunters have to pay private land owners for the privilege. I would imagine game farms are pretty common. Isn’t that what Cheney was doing when he shot that guy in the face?
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Most all rights are regulated by government for some “public good.” Private game farms, fish farms and other commercial operations inevitably interact with water, air, human health or some other public trust asset. These private ventures deplete public assets, and pay fees and taxes, in order further the public good, and to profit from the capital investment. These costs are seldom factored into the financials, making these operations appear more profitable and private than they actually are. Pure-form capitalism is a myth.
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Mark, you are a remarkably intelligent, informed writer. But I simply must ask. WHERE THE HELL HAVE YOU BEEN? Do you even KNOW what mad cow disease is and what causes it? Do you KNOW how many cows were killed in Britain once mad cow was confirmed? THE ENTIRE FREAKIN’ HERD! Look, CWD is essentially the SAME as mad cow. (prion disease) THAT is why game farms must be eradicated! They were/are a breeding ground for the disease! Do you even KNOW how much money big game hunting brings into Montana’s economy? Are we SERIOUSLY going to endanger the lives of our people and destroy a HUGE part of our economy for some certifiable MORONS who want to make a quick buck breeding big horned elk to shoot in a fenced enclosure? Nope. NO moron has the right to do all that. I think that the VAST majority of Montanans understood EXACTLY what they were voting for. Guess I don’t feel REAL sorry for the whiners!
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So tell me more. Link me. I’m all ears.
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Well, you’re kind of a religous guy, so I’ll let you in on a little secret. There actually IS something that is immortal. PRIONS! Impossible to kill them. Put’em in an autoclave perhaps? Nope. Doesn’t kill’em. Burn them at 2,000 degrees? They’re still there. Bury them in the ground and dig’em up two years later? Those little bugger STILL ain’t dead! Oh, and did I mention that if contracted by humans in the form of mad cow, one hundred percent FATAL! There are some truly great books out there on prion disease. My favorite is Deadly Feast. List your address and I’ll send you my copy. It is a fascinating read on how prion disease was first discovered and the crazy combat biologists who investigated it. You see, years ago when the first outbreak of CWD occurred here in Montana, they wanted to bury the infected elk in our landfill here in GF. The people here were OUTRAGED for the reasons I listed above. Burying infected elk is NOT an effective method of disease prevention. After the outcry, the elk were eventually burned at a high temperature down south somewhere. All this got me interested in prion disease. I simply did some research. It’s all out there, but I’d be glad to send you a couple’a of items. It’s scary, scary stuff. The latency period for some versions of the disease can be thirty years! It’s a brain eating disease. That’s why they call it bovine spongiformencephalopoty (sp). It eats one’s brain. Actually, it mimics alzhiemer. Makes ya wonder if the huge increase in alzheimer is actually latent prion disease from our food supply. The morons at smith’s site are simply ignorant morons. They are incapable of understanding the problems involved. THAT is why I’m amazed that their discussion of game farms has NO mention of the REAL concerns.
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