Journal: Global Journal of Classical Theology
Volume: GJCT 17:2 (Nov 2020)
Article: A Note from Our Editor: “Are Coronavirus Restrictions Illegal?”
Author: John Warwick Montgomery

A Note from Our Editor: “Are Coronavirus Restrictions Illegal?”

John Warwick Montgomery

We have all been suffering from restricted movement, limited travel, and confinement. Have these governmental decisions been in fact illegal and unconstitutional?

A recent web article by a Tennessee lawyer1 argues that this is indeed the case. His position, in his own words, is as follows: “No one in the federal government, state government, or local government has any authority to dictate to the general public that they must stay home or that they must suspend their business, or that they must refrain from traveling, or that they must not gather together in large groups, etc. . . . Government was not instituted to protect our health; it was instituted to protect our liberties.”2

I do not know if the author is a card-carrying Libertarian, but, if so, this would fit perfectly in the context of that political philosophy. Some years ago, when I was teaching in a law school in Washington State, I was invited to the Tacoma Club by the Libertarian dean, who would have eliminated all licensing of professions—on the ground that government should always be restrained and should be focusing almost solely on protecting civil liberties. I asked him about brain surgeons; his reply was that the poor ones would be forced out of business by the good ones. He was blithely unaware, apparently, of the harm to be caused by the unlicensed brain surgeons.

To be sure, as the old adage has it, “the best government is the government that governs least.” But there will always be a need for governments to offer positive assistance to the needy in the populace. This is why most civilized states have some form of socialized medicine, and why it is most unfortunate that, in the case of the United States, the Democrats finally achieved “Obama care”—in the absence of a Republican, and therefore more economically responsible, program to provide needed medical assistance beyond the means of so many of the citizenry.

In Chinese mythology, there is the 獬豸 (xièzhì) unicorn who is mentioned as early as the Han Dynasty. A scholar of the time described him as a “righteous beast, which rams the wrongful party when it hears an argument.”3 I believe that he would have given a severe butt to the author of the above-quoted article.4

Why? American constitutional law has always permitted loss to individuals when not allowing this would produce immense suffering to others. The class...