Rushing to Judgment: a Spurious Defense of Title IV (Part I)

Blogs concerned with Episcopal canon law (such as this one, and the Anglican Communion Institute) have given a good deal of attention to the wide-ranging changes made by General Convention at Anaheim in 2009, after just fifteen minutes of debate, to the disciplinary processes spelled out in Title IV of the national Church Canons. The concern here on the right has been with the constitutionality of the changes, i.e., with their conformity to the powers given to General Convention and the Presiding Bishop under ECUSA's Constitution.

The concern on the left has been entirely with their adoption and implementation by the various dioceses of ECUSA, so that the new procedures will be in place by next July 1, when they are scheduled to go into effect. Only recently have the members of the Task Force responsible for drafting and proposing the changes seen fit to respond in public to charges that the changes were unconstitutional. (How telling is it that these questions were not even raised, let alone considered, in the meetings of the Task Force itself, and that no memorandum defending their constitutionality accompanied their presentation to General Convention? The Task Force's motto appears to be: "Shoot first, and take questions afterward.")

[UPDATE 02/23/2011: Messrs. McCall and Runyon have now posted their specific response to the Title IV Task Force II paper at the ACI Website. I heartily commend it to your reading; it demonstrates the lack of historical grounding in the Task Force's arguments, as mentioned below, and which I will address in posts to follow.]

Before taking up their memorandum in detail, however, I want to put some of the matters involved into a proper perspective. Some of what I will now say may come as a surprise to those who are unacquainted with how ECUSA came into being. (If the description fits, then you might want to consult the posts under the subhead "History" at this page before proceeding further -- thank you.)

First proposition:

General Convention is not the "supreme" (highest) authority in the Church -- it never has been, and (unless the current liberal takeover is perfected) never will be.

(See this post for details.)

Second proposition:

As formed in 1789, and as continued in existence ever since, the Protestant Episcopal Church in the United States of America is a voluntary confederation, and not a forever indissoluble union, of dioceses.

(For details, see this post, and this one.)

Third proposition:

As such, there is no single person (or body) at the "head" of the Episcopal Church (USA).

This is the logical consequence, or corollary, of the previous two propositions. A confederation may elect a leader to preside over meetings and speak to the press, but by definition that leader is not a "supreme" leader, with authority over the confederation's members.

Fourth proposition:

Being the legislative arm of the dioceses which make up ECUSA, General Convention has no more authority when assembled than any one of the dioceses has on its own.

All it can do is express the collective will of the dioceses at any given moment -- as determined by majority vote in both Houses, or in special cases, by a majority of the votes of the dioceses taken by orders. Because it has never been granted supremacy, however (First Proposition, above), General Convention has no power whatsoever to bind the several dioceses to what it from time to time votes to express as their collective will. Indeed, General Convention passes wholly out of existence at the end of its two-week (or less) session every third year, never again to reassemble as such. Lacking any existential continuity, it is incapable of binding the individual dioceses -- which do have an ongoing existence -- to any continuing requirements which could be read as having survived its existence. Indeed, the very next General Convention that assembles is completely free to disregard or override the actions of the previous one, or to select those actions of its predecessor(s) which it will deign to honor.

A side note: The text of the Book of Common Prayer, and the national Canons, are a consensus which each Diocese chooses to accept and follow. (The BCP, of course, has further liturgical strictures to which the clergy subscribe by vow upon ordination. As for the Canons, we are about to see the consensus unravel, because of the unconstitutional power grab in the latest revisions to Title IV.) And as we all know, dioceses frequently choose not to follow a particular canon -- such as the one prohibiting open communion, or the ones providing for letters dimissory, or in past times, the rule against suffragan bishops, and the requirement for a bishop to obtain the consent of his colleagues before resigning his jurisdiction.

Given these four fundamental propositions about the Episcopal Church (USA) and its General Convention, several conclusions follow at once about the revisions to Title IV made in 2009, and "effective" July 1, 2011:

A. The changes to Title IV are voluntary -- that is, it is up to each diocese to decide whether to accept or reject them. A confederation is based on a contract among its members. The contract is renewed every time the members agree upon something in accordance with their governing rules. But as is the case with every contract, changes to it need the consent of all the parties. And since the governing agreements do not include a Supremacy Clause, the result is that a party who does not consent to a change cannot be bound by it.

B. If a diocese elects not to adopt the Title IV revisions, there is nothing that General Convention, or the Presiding Bishop, or the staff at 815 Second Avenue, can do about it. The changes to Title IV will simply have no effect in that particular diocese. Again, this is a consequence of two factors: ECUSA's Constitution has no Supremacy Clause, and ECUSA has never established a constitutional court with final authority to interpret the Constitution.

C. Therefore, to speak of the "constitutionality" or "unconstitutionality" of the changes as a whole distorts the real picture. The changes may indeed be "unconstitutional", from any particular diocese's standpoint -- but it is up to each individual diocese to make that decision. And in doing so, that particular diocese is SOVEREIGN -- there is no authority within ECUSA that can force it to accept the changes against its will, or override its decision not to accept them.

I regard the fact that the eight-page memorandum from the Title IV Task Force II nowhere acknowledges these basic principles as a fundamental, and fatal, flaw in its overall reasoning. The memorandum, indeed, proceeds from a point of view which holds that whatever its authors and the staff at 815 decide that General Convention approved in 2009, is thereby ipso facto "final" and "binding" on the collective dioceses. (See the Fourth Proposition above for a refutation of this view.)

Unless and until the truth of the foregoing four propositions is recognized, there can be no real common ground in discussing the propriety of the changes made to Title IV. Those on the left, like the Title IV Task Forces I and II, will think that they are justified in proceeding under the new canons to discipline and sanction those clergy who disagree with them. But those who disagree must take heart in the undeniable facts about how ECUSA came into being, and what exactly is the consequent authority of General Convention.

In this first post, I have not responded to any of the individual arguments advanced by the Title IV Task Force II attorneys. I felt it much more important not to cede the playing field first, and to point out the mistaken assumptions which underlie their arguments and supposed justifications for their proposals. In my subsequent posts, I will address their fallacious arguments head on, and show just how unconvincing, and ahistorical, those arguments are.

[Part II of this series is here; Part III is here.]