Constitutional Changes: More on the Church That Never Was

In the first post in this series examining the history of the changes to the Church's Constitution which were finalized in 1901, we looked at how that venerable governing document, first signed in 1789, fared at the General Convention which met one hundred years later. Although a number of issues were raised concerning its need for revision, the General Convention of 1889 was unable to reach a consensus on all but one of them, and passed the baton to the next triennial meeting.

General Convention of 1892 met in Baltimore, but was marked by even more disagreement in the Constitutional sphere than had occurred at the preceding gathering. Difficulties began when the House of Bishops took up the one Constitutional amendment which had passed at General Convention 1889, namely, an amendment to Article V which would allow General Convention to accept from any diocese a cession of some of its territory, to become a missionary diocese. The House first voted to approve the amendment on second reading, only to discover the next day that the action of the Convention in 1889 in adopting the proposed language had not been communicated by the Secretary of the House of Deputies to each of the dioceses for their consideration in the interim. (Some argued that there had been technical compliance with the requirement, in that the Secretary had sent to each diocese bound and printed copies of the complete journal of the Convention, which included the amendment in question.) The House of Bishops voted to reconsider its approval, and to refer the issue of compliance to its Committee on Amendments to the Constitution.

In due course, that Committee recommended that a one-time exception to the notice requirement be made, but its recommendation was not implemented, and the House of Bishops never voted to re-adopt the amendment (although the House of Deputies did), so the measure never passed. Nonetheless, the Convention agreed to recognize the new and limited boundaries declared by the Diocese of Michigan, and to treat the remainder of its former territory as a de facto missionary diocese.

Disagreements in 1892 between the two Houses at Baltimore over proposed amendments to the Constitution became so numerous that the House of Bishops eventually adopted the following resolution:

Resolved, The House of Deputies concurring, That a Commission be appointed by concurrent action of the two Houses, to consist of seven Bishops, seven Presbyters, and seven Laymen, to which Commission shall be intrusted the work of revising, with the aid of such members of this Church, learned in the law, as they may be minded to consult, the Constitution and Canons of this Church, for the purpose (1) of rendering them more entirely harmonious and freeing them from ambiguities; (2) of adapting them to the greater enlargement and growth of the Church; and (3) of clothing them with such accuracy and precision of language as shall relieve the Digest from the technical objections which are made to its phraseology by jurists and canonists.

The House concurred with this resolution, and the members of the Commission were duly appointed. However, not even the appointment of a joint commission could resolve all the differences in the House of Deputies itself. For the House's regular Committee on Amendments to the Constitution took deep umbrage at the sudden interference with its work, and delivered the following extraordinary report to the House:

The Committee on Amendments to the Constitution, to which was referred a resolution of Mr. Nash, of New York, proposing to amend Article VI. of the Constitution with respect to the trial of clergymen, also a second resolution left over from the last General Convention with respect to amending Article VIII. of the Constitution in the direction of greater stringency, also a resolution left over from the last General Convention with respect to amending Article IX. of the Constitution in the direction of greater stringency, also certain resolutions of Mr. Burgwin, of Pittsburgh, which involve grave constitutional considerations, asks leave to return all of the said resolutions to the House, and proposes the passage of the following resolutions:

Resolved, That the Committee on Constitutional Amendments be discharged from the consideration of all resolutions respecting the amendment of the Constitution that are at present committed to it, for the reason that under a recent order of this House it has been ruled that all reports from this Committee, however carefully elaborated for the enlightenment of the House, must be referred without debate to a Joint Commission, which, after it shall have been appointed, is to sit during the recess and report a plan for the reconstruction of the Constitution and Canons of the Church to the next General Convention.

Resolved, That in consequence of the Standing Committee on Constitutional Amendments having thus become by the action of this House functus officio it be excused from serving during the remainder of the present session.

Functus officio, Latin for "having performed the office", is the legal term used to describe an agency for which there is no longer any function, since its assignments have all been accomplished. The Committee was, by this report, telling the House of Deputies that its action in concurring with the creation of an inter-Convention standing commission on constitutional amendments, and in referring all current reports and resolutions to that commission, had rendered its existence superfluous. Upon the delivery of this report, Mr. Burgwin of Pittsburgh, who had previously asked that the House refer his proposed amendments to the interim commission, moved to reconsider that request -- whereupon the Committee's chairman moved for leave to withdraw the Committee's report quoted above. And thus was peace in the House preserved.

The price of that peace, however, was that nothing whatsoever was accomplished in the area of constitutional amendments for the remainder of the 1892 General Convention. The House of Deputies, as a sop to its offended Standing Committee on Amendments to the Constitution, voted not to concur in subsequent resolutions by the House of Bishops to refer further proposals for constitutional amendments to the interim Commission. The result was a parliamentary draw: the specific matters proposed in the House of Bishops were not officially referred to the Commission, but they went nowhere else, and the mandate of the interim Commission was broad enough to allow it to entertain proposals for amendment from whatever source they came.

Another point of contention in the General Convention of 1892 was the location for the next triennial meeting. The House of Bishops and the House of Deputies went back and forth, back and forth: one wanted Saratoga, in New York, or Atlanta, Georgia; another proposed Denver or San Francisco. (No previous convention had ever been held west of Chicago.) Eventually, after many meetings, the two Houses compromised on a location halfway between the coasts: Minneapolis, Minnesota. And so that is where General Convention gathered to take up the business unfinished at the end of its 1892 session in Baltimore.

The General Convention of 1895 met in Gethsemane Church, in Minneapolis. Here is a picture of its exterior as it looked at that time:

And here is another picture of its interior in 1895, to show the contrast with the venues of recent General Conventions:

The Joint Commission on the Revision of the Constitution and Canons delivered its report on its work in advance of the gathering of the Convention. It emphasized that its twenty-one members had met for a total of twenty-eight days in drawing up its recommendations to the Convention. It proposed nothing less than a complete overhaul of the Constitution and Canons; you may read its full report at this link. I shall not consider here the amendments proposed to the canons. It is the Commission's suggested amendments to the Constitution which are most noteworthy.

The amendments the Commission proposed in 1895 are remarkable because of the complete transformation they would wreak upon the Constitution of 1789. (Not the least of these was a proposal to rename the General Convention the "General Synod" of the Church, and to re-title the Presiding Bishop as the "Primus" of the Church. I shall, in my analysis which follows, keep the usual terms of reference for these entities.)

As Church attorney Mark McCall had occasion to document exhaustively in his 2009 paper on the non-heirarchical character of the Church, published by the Anglican Communion Institute, the Constitution as originally adopted in 1789 contained no language of hierarchy: no language making the legislation enacted by the General Convention superior to any legislation enacted by the respective dioceses, and no language making the Presiding Bishop the supreme head of the Church. In particular, there was no counterpart in PECUSA's Constitution to the Supremacy Clause in the United States Constitution. Yet the two documents shared drafters in common. The conclusion reached by Mark McCall in his paper was that the decision to make the Church's national machinery non-hierarchical in character was deliberate (and, as we saw in the first post of this series, fully in conformity with the understanding of those gathered to amend it one hundred years later).

It thus comes as a shock to modern eyes to review the recommendations of the standing commission, presented to the General Convention of 1895 in Minneapolis. For what they proposed was no less than a completely hierarchical structure for the Church, with the enactments of General Convention taking precedence over those of any single Diocese.

To begin with, both Mr. McCall and one of his opponents, Dr. Joan Gundersen of Pittsburgh, had drawn attention to this particular clause at the end of Article II of the 1789 Constitution (bold emphasis added):

And if, through the neglect of the Convention of any of the Churches which shall have adopted, or may hereafter adopt this Constitution, no Deputies, either Lay or Clerical, should attend at any General Convention, the Church in such State shall nevertheless be bound by the acts of such Convention.

Dr. Gundersen argued that the inclusion of this language in the original Constitution meant that the Church founders intended the acts of General Convention to have priority over the acts of individual dioceses. But as Mark McCall had already carefully explained (see n. 44 of his paper), this language conferred, under the legal precedents in effect at the time, nothing more than a "last in time" kind of priority, as a "rule of applicability", rather than a "rule of priority." In other words, enactments of General Convention as a legislative body (e.g., amendments to the canons) would be binding on a particular diocese if they were the most recent legislative action upon a particular subject. But this language did not prevent individual dioceses from passing their own corrective legislation -- which, if it were subsequent to that of General Convention, would be regarded as taking precedence, as the most recent in time. Finally -- as I shall show in the next post -- this language was removed in the final 1901 revisions to the Constitution.

Given these opposing analyses, it is interesting to the highest degree to note just what the Standing Commission on Revision proposed to the General Convention of 1895. For while proposing to retain the language of Article II quoted above (the "rule of applicability", in Mark McCall's terminology -- now shifted to the proposed new Article I, Section 4), it also proposed the addition of a brand-new kind of "supremacy clause." This was the proposed version of its new Article III, Section I (bold emphasis added):

SECTION 1. For the purposes declared in this Constitution, and under the limitations therein prescribed, the General Synod is the Supreme Legislative Authority in this Church, and, in addition to such powers as are in other Articles of this Constitution expressly or by implication conferred upon it, shall have exclusive power to legislate upon the following subjects:

(a) The qualifications and conditions for making, ordaining, and consecrating Bishops, Priests, and Deacons.

(b) The conditions for the formation, division, and rearrangement of Provinces and Dioceses, and the relations of Provinces and Dioceses to each other.

(c) The foreign relations of the Church.

(d) The general missionary, educational, and charitable work of the Church.

The effect of this proposal was not only to make General Convention by express words the supreme legislative authority in the Church, but also to give it exclusive jurisdiction to legislate in the four specified areas. (Another proposed clause gave the General Convention the exclusive right to define "the offenses for which Bishops, Presbyters and Deacons may be tried, and [to] determin[e] the penalties . . .".) Finally, a draft Section 4 of proposed Article II spelled out, by analogy to the Tenth Amendment of the United States Constitution, the relationship of the dioceses to the Church and its General Convention (Synod):

SEC. 4. The powers not committed to the General Synod or to the Provincial Synods by this Constitution, nor prohibited by it to the Dioceses, are reserved to the Dioceses respectively, save that no Diocese or Province shall legislate in regard to doctrine or worship. The right belongs to each Diocese to legislate for its own diocesan interests, and to delegate authority belonging to it, as is hereinafter provided, to the Province with which it be united as provided in Article IV.; but no Diocese or Province shall by its legislation contravene this Constitution or any Canon of the General Synod enacted in conformity therewith.

The draft proposal went on, in its Article IV, to provide for a system of dioceses to be united into provinces, each with their own Synod, which would be competent to legislate upon matters delegated to it by its member dioceses, and which could also establish courts of appeal on disciplinary matters, to be composed entirely of bishops in the province (excluding the diocesan whose clergy was involved), and able to resolve questions of canon law or doctrine.

It is difficult, at this space of 115 years, to delineate what a difference these proposals to General Convention 1895 would have made to the polity of the Episcopal Church -- had they been enacted. But as a glance at the current Constitution and Canons will show, none of the clauses I have quoted above made their way into the final version of the Constitution adopted in 1901. And in that fact alone lies a serious consequence for those who today would maintain that the Episcopal Church (USA) is "hierarchical" notwithstanding the absence of all such language of hierarchy in its current Constitution. For to have had such language proposed, and then later (as we shall see in the next post) deliberately rejected, speaks volumes as to the intent of the drafters of the Constitution under which the Church currently operates.

In summary, the proposal by the standing commission made to General Convention meeting in Minneapolis in 1895 contained every possible provision that learned Church attorneys of the time would have understood would be necessary to make PECUSA "hierarchical" within the then-current jurisprudence of the United States Supreme Court -- including specifically the description of such churches in the opinion in Watson v. Jones, 80 U.S. (13 Wall.) 679 (1872). (See this earlier post for more background on that decision.) Their proposal shows definitively that they were not only aware of the hierarchical deficiencies in the then-current Constitution, but also knew what language was required to remedy those deficiencies.

The failure of those explicit proposals to make their way into the final version of the Constitution as adopted in 1901 thus speaks even more strongly than does the evidence from 1789 and prior years as to what kind of structure was intended for the Episcopal Church (USA) under its current Constitution. Given these 1895 proposals, rejected as we shall see in 1898, the best legal minds in the Church at the time definitively turned away from the kind of hierarchical polity being urged upon them, for a version which denied any kind of supremacy for General Convention, and which was thus truer to the intent of the original founders in 1789.

In the next post, I shall trace the fate of these hierarchical proposals, and show how they went down to defeat after considerable deliberation and debate.