The Montana dissent — VOICES for REASON

For the first time in American legal history, a judge has explicitly endorsed important principles of Ayn Rand’s political theory in a published appellate opinion.

Judge William Nels Swandal’s passionate dissent in the case of Buhmann v. State, decided by the Montana Supreme Court, concludes as follows (beginning at page 94):

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. I invite the majority to read them. The fundamental rights to acquire, possess, and protect property are not even given lip service by this Court. Under the majority’s opinion, the State suffers no consequences for the exercise of coercive and unreasonable power in destroying these businesses. There is no serious effort to balance benefits and burdens. It may be too early to start asking, “Who is John Galt?” but more decisions like this will seriously impact all private property and business owners in this State.

I strongly dissent from the majority opinion.

In a footnote explaining the John Galt reference, Judge Swandal wrote: “In Ayn Rand’s work Atlas Shrugged, the phrase becomes an expression of helplessness and despair at the current state of the novel’s fictionalized world.

It’s not my intention to analyze, endorse, or criticize the merits of Judge Swandal’s overall opinion in this case. The dispute (which centers on whether the State of Montana must compensate owners of game farms for economic damages resulting from a legal ban on fee hunting) raises several technical issues of legal interpretation that would require careful analysis.

But I think it is important to commend this particular judge, not only for his intellectual perspicacity in relying on Ayn Rand’s ideas, but for his professional courage in being the first to openly and explicitly apply principles of Objectivism to identify the fundamental issues at stake in a published appellate case.

(Note: It proved too difficult to find a one-click link to the court’s opinion, but it is accessible by a series of steps. Click on the Montana Supreme Court’s main page, then choose “opinions” in the horizontal row, then search for Supreme Court Case No. 05-473, then click on “Wallace v. State,” and finally click on “opinion/order.”)