1. "Hierarchy" is a well-defined concept in the law, and can be expressed in several ways---always, however, by using established terms with specific meaning, such as supremacy, subordination, preemption, and finality. These terms were developed in the common and statutory law of England, and then brought to the Colonies before the American Revolution. The "Act of Supremacy," for instance, established the British monarch as the supreme head of the Church of England, and all clergy were required to swear the Oath of Supremacy. (Sir Thomas More was beheaded for refusing to subscribe to the Oath, and after the American Revolution, it was the same Oath which prevented American bishops from being ordained in the Church of England.)
2. TEC's Constitution, as originally drafted in 1785, and as maintained ever since, is wholly lacking in any hierarchical language. The Constitution of TEC provides, with respect to the authority of General Convention:
There shall be a General Convention of this Church, consisting of the House of Bishops and the House of Deputies, which Houses shall sit and deliberate separately; and in all deliberations freedom of debate shall be allowed.
That is it, and that is all that there is. There is no language making General Convention the "supreme authority" of the Church, or providing that the various dioceses shall be "subordinate" to it, or "subject to" its legislation. Nor is there any provision that makes TEC's own canons (or Constitution) superior to diocesan ones. Moreover, the drafters of TEC's original Constitution included such constitutional experts as James Duane and John Jay, both of New York, who were very well schooled in the law of supremacy, and who could easily have included appropriate language making General Convention the highest authority within the Church had that been the intention of its founders. But as Mark McCall demonstrates with exhaustive historical references, the fear at the time was precisely that a national church polity would come to dominate the various dioceses (which at the time were coterminous with the several States), to their detriment. So the original Constitution, and all of its subsequent versions, are devoid of the language of hierarchy.
3. In contrast to TEC, the governing instruments of other hierarchical religious bodies are very clear in their use of the language of supremacy. The Roman Catholic Church, the Serbian Orthodox Church, the Evangelical Lutheran Church in America, the Presbyterian Church of the United States, and the United Methodist Church each define their hierarchical structure in clear and unambiguous language for all to see. The lack of any such language in TEC's Constitution stands out in stark contrast.
4. The heart of Mark McCall's paper is a thorough historical summary of the context in which TEC was formed and its Constitution drafted. He shows how the original impetus for the creation of a national church to replace the Church of England came from the Rev. (later Bishop) William White of Philadelphia, who dealt skillfully with the limitations that the newly created State diocese of Virginia imposed on its ability to subject its churches to a national authority, as well as with the desires of Connecticut and other parts of New England to preserve their autonomy. The result was a national church that was wholly the creation of its dioceses (constituent States), and not vice versa.
5. Case law since the founding of TEC, although not entirely harmonious, has been uniform in recognizing that what hierarchy exists in TEC is in its dioceses, and not in General Convention. The McCall paper concludes with a section analyzing the cases that deal with unincorporated associations, which are the form in which most (if not all) dioceses of TEC are organized. It demonstrates that the courts have evolved a test over the years which depends on their ability to identify the highest authority within a given Church polity:
The Court, both majority and dissent, have now come completely to grips with the nature of the judicial inquiry required by the deference standard. They recognize that it involves detailed analysis of which body constitutes the highest judicatory in the particular dispute and that the “locus of control” could be ambiguous. The dissent thought this “careful examination” was constitutionally mandated; the majority disagreed, concluding that, far from being required, in some cases it would even be impermissible.Measured against this test, insofar as it has been applied to The Episcopal Church to date, the McCall paper documents that the courts have thus far found that what hierarchical authority that does exist within TEC consists of the relationship between a diocese and its parishes, or between a bishop and the clergy who are subordinate to the diocesan authority. No decision to date---and the Virginia rulings are only the latest examples---finds that a diocese is subordinate to the national church.
As their introduction to the McCall paper emphasizes, the Anglican Communion Institute is almost of two minds about what it demonstrates. On the one hand, the paper establishes the legal and constitutional arguments by which a diocese, such as the Diocese of San Joaquin, is fully justified in amending its constitution and canons so as to make itself free from TEC and its General Convention. On the other hand, the ACI does not go so far as to say that such a course is morally justified, or represents the best choice for the Anglican Communion as a whole.
I shall leave the debate on that question for a further post. What is certain at this juncture is that the McCall paper drives a stake through the heart of the argument that a diocese cannot lawfully declare itself independent of The Episcopal Church.