God and the Coronavirus
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
It looks like one of the issues that will soon arise in the corona pandemic is the power of God — legally speaking. This caught our attention in a dispatch of the New York Times about how President Trump’s family company is seeking financial help as the pandemic takes its toll. This apparently involves discussions on rent it pays for land with a Trump golf course.
Congress’s corona legislation — in what, we confess, we thought was a churlish touch — specifically denied any federal financial help for the President’s private businesses. The land for the golf course mentioned in Times’ story, though, is rented from Palm Beach County. So the Trump Organization is in the early stages of discussions with the county over the rent.
It turns out, the Times reports, that the Trump Organization’s lease with Palm Beach County, inked in 1996, “contains what is known as a ‘force majeure,’ or ‘act of God,’ provision.” The newspaper says County officials are noodling on whether, in respect of the pandemic, the act-of-God provision may permit the Trump Organization to delay lease payments.
One can see in a twinkling where this might end up. Or might not. It might be, say, that Palm Beach County disputes any suggestion that the pandemic is an act of God. What, after all, could be God’s motive? Or, the County might accept a claim of force majeure and cut the President’s family some slack. Either way, after Palm Beach County, le deluge.
Meaning, if the pandemic is given legal status as an act of God in a case involving the Trump Organization, it could set a precedent. That could, in theory, wipe out trillions dollars of millions of other persons’ contracts. Contracts undergird our entire economy. Not a bad moment, then, to think about what constitutes an act of God in the first place.
One law review case comment on which we happened — it appeared in the Washington and Lee Law Review and was pegged to a case involving rainwater flooding a man’s basement — reckoned this: “In its broadest sense an act of God can be defined as every occurrence that takes place on earth.” If that were true, though, no system of contract law could be sustained.
Therefore, Washington and Lee’s commenter, James Lewis Howe III, suggests, the list of things or categories that can be defined an act of God must be restricted. A comprehensive legal definition, he suggests, would need to include “unforeseeability by reasonable human intelligence” and the “absence of human agency causing the alleged damage.”
No sooner might that definition be accepted, though, than the New York Times is going to print another million dispatches arguing this is all the result of President Trump’s “agency” in promulgating the wrong policies. Or else the “inagency” of not moving fast enough. The courts could be tied up with this kind of litigation until the cows come home (if they ever do).
It may well be that there is legislative solution to all this under our Constitution. We would be make a simple point: Mark the language of Article 1, Section 10, which lays on the states certain prohibitions, things they can never do. And one of the big ones is make any law “impairing the obligation of contracts.” That is one of the slabs of American bedrock.
Not that it is universally admired. One of the famed anti-Federalists of the founding era, Luther Martin, objected to putting the contracts clause in the Constitution at all. Martin, in his letter to his fellow Marylanders known as “The Genuine Information,” said that at Philadelphia, he’d argued that the states ought to possess the power to impair contracts in times of “great public calamities and distress.”
The Framers put the clause in anyhow. They were practical men, worried about man’s inherent flaws but also realistic. We know of no instance where they sought to lay prohibitions on what God could do. It would, of course, have been a vain quest. Maybe that’s why, though our scientists and lawmakers scramble, our courts so often display the motto, “In God We Trust.”
Drawing by Elliott Banfield, courtesy of the artist.