Update on the History of Canon IV.9.2

It is a source of wonderment to me how much ink can be spilled (or, to modernize the metaphor: how many bytes can be consumed) over the simple language of a Canon---how many people can find the language to be unclear, ambiguous, or "in need of clarification." The dispute over the validity of the depositions of Bishops Schofield and Cox has divided not just the rank and file, but also the professionals who earn their living by working with the Canons---with what they mean, and with how they apply on a daily basis.

Over at a blog not especially known for its tolerance of those who would find fault with the Presiding Bishop's conduct in this matter, we have the views of a canon lawyer who is convinced that Bishop Jefferts Schori read Canon IV.9.2 correctly in pronouncing that the House of Bishops had given its consent to the depositions. To frame the issue, the question is the meaning of the following bolded phrase from that section of the Canon:

Otherwise, it shall be the duty of the Presiding Bishop to present the matter to the House of Bishops at the next regular or special meeting of the House. If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry, and pronounce and record in the presence of two or more Bishops that the Bishop has been so deposed.

Those who have read my earlier post on the history behind this Canon will recall that although the wording of this phrase changed somewhat between the Canon's first enactment in 1853 and its taking its current form at GC 1904, its meaning, in my view, did not change. Now look at the way "Robert" regards this same history:

[I]t is important for TEC's leaders and their supporters to be able to demonstrate that their reading of the deposition canon is not arbitrary or capricious, but is grounded in sound principles of canonical interpretation. As a lawyer who has some experience with canon law, I think they have more than met that burden. At the risk (nay, the certainty) of being tedious, here's why:

1. The original deposition canon was enacted in 1853, and required the consent of "the majority of the Members of the House of Bishops."

The canon did not call for a meeting of the House, and, in language that is beyond peradventure, required the consent of the majority of the entire membership of the House of Bishops.

2. The canon was amended in 1859, when it required the consent of "the majority of the House of Bishops." Again, no meeting was called for, and it remained clear that the consent of the majority of the entire House of Bishops had to be obtained.

3. Another amendment was adopted in 1874, in response to the deposition of Bishop Cummings [sic: the name is "Cummins"], Assistant Bishop of Kentucky. Although the Presiding Bishop had obtained the written consents of a majority of the Bishops entitled to seats in the House of Bishops, the canon then in effect (see 2 above) required the consents of "the majority of the House of Bishops."

To resolve any doubts about the deposition process going forward, the 1874 canon required the Presiding Bishop to convene a meeting of the House of Bishops to consider the matter, and further provided that, "if a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops, shall at such meeting give their consent," the Presiding Bishop shall proceed to depose the abandoning Bishop.

It is significant that, in terms of the number of consents required for deposition, the canon was revised in 1874 to correspond to what the Presiding Bishop had actually obtained for Bishop Cummings's deposition: a majority of the Bishops entitled to seats in the House of Bishops.

Based on that history, it seems clear that, in 1874, although a meeting was now required, the canonical majority of consents needed for deposition was a majority of Bishops entitled to seats "in the House of Bishops," not merely those entitled to seats at the meeting.

4. In 1904, the canon was amended again to provide that, "it shall be the duty of the Presiding Bishop to convene the House of Bishops to consider the case; and if the said House, by a majority of the whole number of Bishops entitled to vote, shall give their consent," the Presiding Bishop shall depose the Bishop in question.

NOTE WELL--the words "whole number of Bishops entitled to vote," in the 1904 canon, are NOT followed by the words "in the House of Bishops," or any reference whatsoever to "the House of Bishops."

Prior versions of the canons did contain such a reference: 1853 ("the majority of the Members OF THE HOUSE OF BISHOPS"); 1859 ("the majority OF THE HOUSE OF BISHOPS"); and 1874 ("a majority of the whole number of Bishops entitled at the time to seats IN THE HOUSE OF BISHOPS")(emphasis added).

The 1904 General Convention could have said "a majority of the whole number of Bishops entitled to vote IN THE HOUSE OF BISHOPS," but it did not. It certainly had a significant prior history of using those words, and when it wanted to refer to the entire House of Bishops, it did so expressly. The clear implication of omitting any such reference in the 1904 canon, is that the majority required is a majority of the "whole number of Bishops entitled to vote" WHO ARE PRESENT AT THE MEETING (in the current canon, the meeting is the clear referent immediately preceding the specified vote). Otherwise, the act of the General Convention in eliminating the words, "in the House of Bishops," makes no sense.

I will interrupt Robert's argument at this point, because it is at just this point where I believe he goes astray. Note that under his reading of the different versions, the meaning of the language was changed significantly by the General Convention of 1904. In other words, he agrees that from 1853 until 1904, the language required the consent of a majority of all the Bishops having seats and the right to vote in the House of Bishops, whether they were present and voting or not, and that this number was a larger number than just the majority of Bishops present and voting at a particular meeting. But in 1904, he contends, this larger requirement was reduced to just a majority of "the whole number of Bishops entitled to vote who are present at the meeting." He derives the intent to make this significant change from the dropping of the phrase "in the House of Bishops" following the words "entitled to vote".

Robert's argument, like so many other carefully constructed lawyers' arguments, depends on its narrow focus. That is, he is asking you to look at just one end of the sentence in question, while he omits to quote from its beginning. In interpreting statutory language, one ignores the beginning of a sentence at one's peril, because it frequently contains the subject of the sentence (or in this case, of the dependent clause)---as it does here. Look back at the full sentence as quoted at the outset above:

If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry . . .

As we shall see, Robert usually pays attention to subjects, but he has failed to do so here. My italicization above is meant to bring out the fact that it is the House of Bishops, and not just those Bishops present and voting at one of its meetings, who is to give the consent to deposition. Given this sentence structure, to repeat the phrase that GC 1904 dropped would produce a redundancy:

If the House, by a majority of the whole number of Bishops entitled to vote in the House of Bishops, shall give its consent . . .

Where else would the Bishops be entitled to vote on the deposition of a colleague, but in the House of Bishops? (If you had been a draftsman at GC 1904 taking up this Canon, you would have eliminated the language also, as entirely superfluous.) The point is not just that the language would have been superfluous, however. The point is rather that Robert is not entitled to conclude that a significant change in meaning was intended just because some language that would have been superfluous was left out.

To clinch this refutation, let us review each form of the sentence in its earlier manifestations. Here is how it read when originally enacted in 1853:

. . . such Bishop, Presbyter, or Deacon shall be held, ipso facto, as deposed to all intents and purposes; and shall thereupon be pronounced deposed; . . . and if a Bishop, by the Presiding Bishop, with the consent of the majority of the Members of the House of Bishops.

Here is how it was changed to read in 1859:

And if said declaration be not made within six months as aforesaid, it shall be the duty of the Senior Bishop with the consent of the majority of the House of Bishops, to depose from the Ministry the Bishop so certified as abandoning . . .

And here is how it was changed to read in 1874:

And if such declaration be not made within six months, as aforesaid, it shall be the duty of the Presiding Bishop to convene the House of Bishops, and if a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops, shall at such meeting give their consent, the said Presiding Bishop, or the senior Bishop present, shall proceed to depose from the Ministry the Bishop so certified as abandoning . . .

So what really changed between the earlier versions and the 1904 version we have today? The answer is (roll the drums): the subject of the clause! In each of the three earlier versions, the subject was "a majority" (of the Bishops in the House of Bishops), and in 1904, the subject became the House of Bishops itself, acting by "a majority." Was this a substantive change, or just a different way of constructing a sentence? Let's consult with Robert again, on the subject of subjects.

For background, we have to look at one of the criticisms of Robert's analysis left as a comment on the blog, by one D. C. Toedt, whose blog The Questioning Christian is one of my regular stops on the Web. Like me, D. C. is an attorney who is affiliated with an Episcopal Church. We disagree on a number of current issues in the Church, but we do so honestly and with respect. One thing we agree on is the plain meaning of this phrase in Canon IV.9.2. Here is what D.C. had to say about Robert's (mis)reading of the Canon:

First, Robert doesn't address the effect of Art. I.2 of TEC's constitution, which defines which bishops are entitled to vote (basically, all active and retired bishops) and follows up by saying that "A majority of all Bishops entitled to vote, exclusive of [basically, retirees], shall be necessary to constitute a quorum for the transaction of business." This says two things: (A) That you need fewer bishops to achieve a quorum than you do for a majority of all bishops "entitled to vote" (because for quorum purposes you don't count retired bishops); and, even more importantly, (B) that the required vote for deposition under Canon IV.9.2, "a majority of the whole number of Bishops entitled to vote" cannot mean merely a majority of a quorum.

Second, Robert doesn't consider that in many other places, the Constitution and Canons use phrases such as "2/3 of all bishops present and voting." In other words, the drafters knew very well how to use the qualifier present and voting to limit the number of votes needed to a stated percentage of those present at the meeting. The unmistakable inference is that they did not intend to do so in Canon IV.9.2.

Robert responded to this criticism in a comment as follows:

Article I, Section 2 of the Constitution describes who has a seat and vote "in the House of Bishops," and how many (and which) Bishops are necessary to constitute a quorum of the House for the transaction of business. In other words, the SUBJECT of that Section is THE HOUSE OF BISHOPS, not any particular meeting of the House.

The SUBJECT of Canon IV.9.2, however, is expressly the "next regular or special meeting of the House." The Canon describes the minimum number of consents that must be obtained AT THE MEETING in order to depose.

I have to interrupt Robert here, because he has lost the argument. How can he parse the clause we have been looking at and say that its subject is "expressly the 'next regular or special meeting of the House'"? The verb is "shall give", and the answer to the question "Who shall give?" is "the House"---not the prepositional phrase "at the next regular or special meeting of the House". That phrase qualifies the verb in the earlier sentence "shall present", and answers the question where (or when) shall the presentation occur? It certainly is not the grammatical, or even substantive, subject of any sentence or clause in the Canon. Just to be sure we are understanding him, let's go back to Robert:

Furthermore, Article I, Section 2 does not use the same language as that used in Canon IV.9.2; the Section says "all Bishops entitled to vote;" the Canon says "a majority of the whole number of Bishops entitled to vote."

For a response to this argument, let me quote D.C. Toedt again:

Robert @ 2:51 pm, you seem to think that the phrase "a majority of the whole number of Bishops entitled to vote" (Canon IV.9.2) means something materially different than "[a] majority of all Bishops entitled to vote" (Art. I.2). (Emphasis added.) That's certainly an interesting point of view, but I think most people would read the two phrases as being synonymous.

I have to agree again with D.C.; Robert is skating on thin ice if he draws much semantic difference between the words "the whole number of" and "all". But it is a distinction without any apparent consequence, because Robert does not go on to say how the difference between those two phrases leads to any different interpretation of the two sentences in which they appear. Robert seems to concede that the phrase in the Constitution means "a majority of the whole House of Bishops," and this weakens his position that the equivalent phrase in the Canon means something different.

One final problem with Robert's position: he wants to use the absence of the phrase "in the House of Bishops" to infer a different phrase: "who are present at the meeting"---and this inference, as we have seen, changes the whole meaning of the sentence. Well, that same argument could be used in the case of Article I, Section 2 of the Constitution, which defines a quorum. It says:

A majority of all Bishops entitled to vote, exclusive of Bishops who have resigned their jurisdiction or positions, shall be necessary to constitute a quorum for the transaction of business.

Now this sentence likewise lacks the magic phrase "in the House of Bishops" following the words "entitled to vote". So if, following Robert's argument, we insert his preferred phrase "who are present at the meeting", we get the following:

A majority of all Bishops entitled to vote who are present at the meeting, exclusive of Bishops who have resigned their jurisdiction or positions, shall be necessary to constitute a quorum for the transaction of business.

This time we get a manifest absurdity: a quorum would consist of a majority of whoever shows up at a meeting---even if there were only three Bishops present. See why arguments from inference are among the trickiest there are in a lawyer's book of stratagems?

I enjoy reading other people's views and arguments about the matter; maybe that's because I'm an attorney, that's part of how I make my living, and I can appreciate legal artistry when credit is due. What I do not enjoy, however, are the attitudes that sometimes go with the arguments. Here, for example, is how Robert opened and closed his piece:

On the one hand, the calumny that continues to be heaped upon our Presiding Bishop and her Chancellor over their interpretation of Canon IV.9.2 (the deposition of a Bishop canon) has become quite tiresome.

On the other hand, I do think it is important for TEC's leaders and their supporters to be able to demonstrate that their reading of the deposition canon is not arbitrary or capricious, but is grounded in sound principles of canonical interpretation.

. . .

Of course, there are certain people who will never be convinced of the reasonableness of our Presiding Bishop's interpretation of Canon IV.9.2, no matter what level of detail or analysis is provided in support of that interpretation.

Nonetheless, in my opinion, based on a detailed analysis of the language, history, and use of Canon IV.9.2, as well as a review of other relevant provisions of the Constitution and Canons of the Episcopal Church, the depositions of Bishops Schofield and Cox were reasonably, fairly, and canonically conducted.

Let's move on to something else.

Sorry, Robert---your argument does not merit the conclusion you draw; you have demonstrated only that if you leave out the subject of a clause in a sentence, and infer from what's left a change that was never intended, you can make the sentence mean something entirely different from what it says. For all the bytes out on the Web that have been devoted to this subject, I have yet to see a convincing textual argument that would justify the Presiding Bishop's (and her Chancellor's) misreading of the Canon. Now, who's next?