Sunday, February 7, 2010

Two Papers from the ACI Hierarchy Conference

No doubt the news will be eclipsed by Superbowl celebrations (and recriminations), but I just have time to point out to regular readers of this blog two important new papers published by the Anglican Communion Institute. These were delivered at their recent conference held in Dallas on the subject of "Who's in Charge? Hierarchy and the Episcopal Church", which I was fortunate in being able to attend. (Tomorrow I head off to another conference, so blogging this week will be lighter than usual.)

The first paper was given by Mark McCall, who has studied the roots of ECUSA's governing documents and polity as much as any person now alive, and whose scholarship puts Dr. Bruce Mullin's to shame. Contrast Dr. Mullin's declaration in the Fort Worth litigation (which I discussed briefly in this post and this one) with the analysis by Mark McCall, now posted at the ACI Website. Let me show you what I mean. Here is a passage from Dr. Mullin's affidavit:

34. The goal and outcome of the organizational period of The Episcopal Church was the creation of a national church with an authoritative General Convention. Only such an organization could assure a united Church and the reception of the episcopate from the Church of England.

A. Development of the General Convention

35. The hierarchical nature of The Episcopal Church was clear from the very beginning of its organization in the decade of the 1780s. The norm in Anglicanism, as shown above, has always been the national Church -- i.e., a church representing the communicants of a sovereign state. With the independence of the American colonies from Britain in 1783, such a church became the goal of American Episcopalians. . . .
And here is Mark McCall speaking:
Sitting as judge in 1784, [James] Duane ruled in a well-known case still studied by legal scholars that the absence of a routine technical term indicating hierarchical priority substantially eviscerated a New York statute purporting to nullify part of the peace treaty that ended the Revolutionary War. Six weeks later Duane was a delegate to the first interstate convention that established the fundamental principles of what was to become the constitution of The Episcopal Church. The first of these principles was the very language, that “there be a general convention,” that remains to this day the only specification of the authority of General Convention. Duane was again a delegate to the General Convention in 1785, one of only two from New York, and served on the committee that drafted the first constitution. That constitution, the key language of which remains virtually unchanged in the current constitution, contained no language giving hierarchical priority to the General Convention. Duane was once again a delegate to the 1786 Convention that revised the draft constitution.

[John] Jay is known among legal scholars for his work in drafting the hierarchical legal language that resolved the treaty nullification controversy with Great Britain and that became the prototype for the Supremacy Clause in the United States Constitution, the primary provision establishing the hierarchy of the federal government in our federal system. Right in the middle of this work on the treaty controversy, Jay was a delegate to the General Convention in June 1786. It was this Convention that amended and then approved the constitution drafted the year before containing no language giving hierarchical priority to the General Convention or any central body. . . . He did not attend the adjourned session of the Convention in October 1786, undoubtedly because it occurred just as he was delivering his report to Congress with his proposed solution to the treaty crisis, including resolutions containing the legal language that would later be incorporated into the Supremacy Clause of the United States Constitution.

It is inconceivable that these two knowledgeable lawyers, known to this day for their role in developing our jurisprudence concerning legal hierarchy, would have inadvertently drafted a TEC constitution devoid of hierarchical language.
Indeed, the more I focus on Dr. Mullin's assertions, the more claims I discover which are simply contrary to fact. Let me show you again what I mean, with a very simple and direct illustration. Toward the end of paragraph 35, whose opening I quoted above, Professor Mullin makes this assertion, in speaking of the blueprint for the national Church published in 1782 by the Rev. Dr. William White of Philadelphia (see this earlier post for background):
White's organizational plan was laid out in The Case of the Episcopal Churches Considered (1782). Significantly, under White's Case, no ultimate rights were reserved for states or dioceses. [Footnote omitted; emphasis added.]
Now look at what Dr. White actually proposed, as part of his founding principles for organizing the Church:
One natural consequence of this distinction [between England and the United States], will be to retain in each [local] church every power that need not be delegated for the good of the whole. Another, will be an equality of the churches; and not, as in England, the subjection of all parish churches to their respective cathedrals.
. . .

The continental representative body [i.e., the Church's general legislature] may consist of a convenient number from each of the larger districts, formed equally of clergy and laity, and among the clergy, formed equally of presiding ministers and others; to meet statedly once in three years. The use of this and the preceding representative bodies is to make such regulations, and receive appeals in such matters only, as shall be judged necessary for their continuing one religious communion.
(Emphasis again added.) And in case one did not get the message, the Rev. Dr. White sums up what he is proposing as the philosophy of the proposed national church in the following quotation:
On the subject of government, whether civil or ecclesiastical, there is great truth and beauty in the following observation of the present Bishop of St. Asaph, “the great art of governing consists in not governing too much.”
[Historical note: the "present Bishop of St. Asaph", whom Dr. White quotes, was Jonathan Shipley, who held that post from 1769 to 1789. He was a great friend of Benjamin Franklin, and was the only member of Parliament to voice his opposition to the punitive measures enacted following the (original) Boston Tea Party.]

Can you see why I maintain that Dr. Mullin's entire hypothesis about the founding of the national Church is preposterous, and without any basis in actual fact? A detailed comparison of his affidavit with Mark McCall's current paper should convince any impartial reader as to who is more careful in assessing the historical facts, and who is constructing a case for court because he is being paid to do so.

The second paper published at the ACI Website is a very thoughtful rumination on the proposal for an Anglican Covenant, delivered by the Rev. Dr. Philip Turner: "Communion, Order and Dissent, or - the Revenge of Puss-in-Boots." He employs a new terminology to refer to the contending factions within the Communion, and describes the final Ridley Draft as a proposal for "thick" communion, while those opposed seem to be advocating a version which (by contrast only) he calls "thin" communion. The former involves the detailed structures and mutual relationships spelled out in the proposed Covenant; the latter emphasizes the autonomy of each of the member churches, in which there is a minimal attempt at agreeing on details held in common beyond those of the Chicago-Lambeth Quadrilateral.

Dr. Turner's paper attempts -- very successfully, in my view -- to give a non-polemic assessment of what is currently dividing minds about the proposed Covenant, and about what would be the ramifications of each of the two contending views for the Communion as a whole. I commend it to your careful attention, and will have more to say about it in a later post.

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