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 lawyer 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.”
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.” I believe that he would have given a severe butt to the author of the above-quoted article.
Why? American constitutional law has always permitted loss to individuals when not allowing this would produce immense suffering to others. The classic example is the permissible destruction of property to create firebreaks in the face of raging forest fires (as in California). To be sure, the owners of the destroyed property must receive compensation, but the destruction per se is by no means constitutionally prohibited.
And what about seat-belt regulations for drivers of motor vehicles? Legally-required helmets for motorcyclists? Mandatory insurance for those who operate cars or motorcycles on public highways? Standards of cleanliness for restaurants? All of these regulations impose a burden on the few for the sake of the many—even when the only harm might be to the individual himself or herself.
Sir William Blackstone, in the first textbook of the English Common Law, argued that suicide should be criminalized. The subject did not live in isolation; he owed a duty to his Sovereign:
The law of England wisely and religiously considers, that no man hath a power to destroy life, but by commission from God, the author of it: and, as the suicide is guilty of a double offence; one spiritual, in invading the prerogative of the Almighty, and rushing into his immediate presence uncalled for; the other temporal, against the king, who hath an interest in the preservation of all his subjects.
The essential point here is that no individual is a Robinson Crusoe, living in isolation from others (and even Crusoe had his man Friday). John Donne gave classic expression to the truth that we are all interlocked with others; we all owe a responsibility to those around us in society. On hearing the bell toll announcing the death of someone, “Never send to know for whom the bell tolls, it tolls for thee.”
So we have no choice but to suffer in the wake of the Coronavirus—masks, confinement, limited travel, etc. One would think that the biblical perspective that we are to serve as “our brother’s keeper” (Genesis 4:9) ought to encourage at least Christian believers to think theologically instead of in Libertarian terms. After all, the Bible comes from God himself, whereas political philosophies are but the work of limited, finite, sinful human beings.
 Jeffrey A. Cobble [Cobble Law Firm, Greeneville, TN], “The Coronavirus Pandemic vs. the Limits of Government,” April 2, 2020.
 The quoted material appears in boldface in the original web article.
 The Unicorn of Justice pictured here is one of the Chinese mythological figurines in the Montgomery collection. Prof. Dr Montgomery holds a Diploma in Basic Chinese Language Studies (Alison, Ireland, in conjunction with Cambridge University).
 See in particular: Wildfire Policy: Law and Economics Perspectives, ed. Dean Lueck and Karen M. Bradshaw (London: Routledge, 2013).
 Bl. Com. IV, xiv, 3. See Montgomery, “Whose Life Anyway? A Re-examination of Suicide and Assisted Suicide,” in his Christ Our Advocate (Bonn, Germany: Verlag fuer Kultur und Wissenschaft, 2002), pp. 169-95.
* * *
This issue of the Global Journal will perhaps seem on the surface to appeal solely to readers of Lutheran persuasion. Not so! Just as the struggle for biblical authority in the Lutheran Church-Missouri Synod a generation ago was repeated later in the Southern Baptist denomination, so every major church body today faces virtually identical doctrinal issues concerning the extent to which Scripture and its teachings can be accepted and seriously followed in an increasingly rationalistic age.
Whatever your denomination, you will want to read David Thompson’s discussion of apologetics from a Lutheran perspective: “A Confessional Lutheran Understanding of Christian Apologetics and Its Practice.”