Rushing to Judgment: a Spurious Defense of Title IV (Pt. II)

[Note: Part I of this analysis of the justifications offered for the new disciplinary canons ("Title IV") approved by General Convention 2009 may be read at this link. Part III is here.]

The paper published by the Title IV "Task Force II" takes up three constitutional challenges to the 2009 revisions approved for Title IV of the national Canons (dealing with the discipline of clergy). The first challenge is that the revisions are in derogation of the powers reserved to the Dioceses in Article IX of the Constitution, which provides in part: " . . . Presbyters and Deacons canonically resident in a Diocese shall be tried by a Court instituted by the Convention thereof . . ." (italics added). (The other two challenges will be addressed in subsequent posts.)

The paper answers this challenge by contending that the current language of Article IX reserves to the Dioceses literally only the power to create the courts to try priests and deacons. General Convention, on the other hand, is free (under the authors' view) to specify in detail just which kinds of persons, and how many of each, will serve on the courts; their specific jurisdiction over clerical offenses; the procedures to be followed in bringing charges, working out a consent order, referring a case for hearing, conducting a trial, and pronouncing or modifying judgment. In other words, the dioceses create only the skeleton, and supply the personnel; it is General Convention which has the power to flesh everything out and make the whole system work.

Such an argument appears dubious on its face to anyone versed in the law: the power to establish courts normally goes hand in hand with specifying their jurisdiction, staffing, and procedures. And that, indeed, is the way ECUSA did things until very recently. But according to the authors of the Task Force II paper, a little-noticed change made in the wording of Article IX approved in 1901 made all the difference in the world.

The change had come as a very minor element in the comprehensive overhaul of the entire Constitution which lasted from 1889 to 1901 -- through five successive General Conventions. (See the series of posts under the heading "Constitutional Changes" at this link for a detailed history of that process.) From 1841 to 1901, the clause in question had read: "In every Diocese, the mode of trying Presbyters and Deacons shall be instituted by the Convention of the Church therein . . .", and virtually the same wording was in Article VI of the original constitution adopted in 1789.

It is the argument of the paper that the 1901 shift in emphasis from Dioceses "instituting the mode of trying" priests and deacons to Dioceses "constituting the courts" to try them "profoundly changed" the balance of power between the Dioceses and General Convention:

The wording adopted in 1901, however, profoundly changed this Constitutional scheme. Instead of reserving to the several Dioceses the “mode” ‐ the full range ‐ of disciplinary activities, it very precisely prescribed that which is left to the Dioceses: the “institution” of the “Court” by which Priests or Deacons may be tried. No longer do the Dioceses have exclusive rights with respect to the full range of disciplinary activities; from and after 1901, the only part of those activities exclusively reserved to the Dioceses is the establishment of the Court before which trial, if there is to be one, is to be conducted. As a result of this change, General Convention is now constitutionally free to legislate in the area of clergy discipline.

This argument not only ignores the historical context of the 1901 revisions to the Constitution, but it also way overstates its case. The issue has never been whether "General Convention was free to legislate in the area of clergy discipline" -- it has done so ever since the original Convention of the Church in 1789. Canon XII adopted by that first gathering dealt with "Notorious Crimes and Scandals to be censured", and referred to "such rules or process as may be provided, either by the General Convention or by the Conventions in the different States." (1789 Journal [ed. W.S. Perry 1874], Appendix, at p. 128; italics added.) The same language was enacted in Canon XIII ("Sober conversation required in Ministers"), which provided for "the ecclesiastical censure of admonition, or suspension, or degradation [of any 'ecclesiastical person'], as the nature of the case may require, and according to such rules or process as may be provided, either by General Convention or by the Conventions in the different States."

Over time, and with the enactment of subsequent canons, the division of powers envisioned by the founders became clearer: to General Convention was reserved the power of legislating for the discipline of bishops (using a court formed under the House of Bishops), while the individual Dioceses kept control of disciplinary proceedings with respect to priests and deacons canonically resident within their boundaries. For example, the second canon enacted in 1792 specified that the presentment and trial of clergy committing offenses in dioceses other than where they were resident would be the responsibility of the ecclesiastical authority of the diocese "to which such offender belongs . . .".

But when it came to the specification of offenses for which members of the clergy could be tried, both the General Convention and the several Dioceses exercised a form of concurrent jurisdiction. That is, General Convention enacted various canons (as just noted, beginning in 1789) to define the conduct which made any member of the clergy subject to presentment and trial. The Dioceses, however, were not bound by those definitions, and were recognized as having the authority to add to them, as Edward A. White explained in his original annotated edition of the Constitution and Canons in 1924 (pp. 566-67):

This Canon [Canon 28, the successor to original Canon XIII of 1789] declares that a Bishop, Priest, or Deacon shall be liable to presentment and trial for the offences [sic] named in the Canon; can this list of offences be added to by a Diocesan Convention, or can a Minister be presented and tried for an offence not enumerated in the Canon?

. . .
In the trial of the Rev. Mr. Trapnall, in Maryland, in 1847, objection was made to the presentment, which was framed under a Canon of the Diocese of Maryland, said Canon enumerating under other canonical offences, conduct incompatible with the character of a minister of Christ, that such presentment was void because it constituted a new triable offence, one not named in the Canons of General Convention. This objection was overruled by the Court, and a part of the argument of the Church Advocate was, that the Canon of the General Convention did not contain the full penal code of the Church -- that its title was "Of Offences for which a Clergyman may be tried," not of "the Offences." That the General Convention only meant to specify certain offences for which a Clergyman must be tried, leaving the code to be filled up as separate Diocesan Conventions might deem proper. In other words, that the legislation of the General Convention was not designed to be exclusive legislation.

In their response to the Task Force paper, Messrs. Runyan and McCall have given additional proofs from history to show why the change to the language of Article IX in 1901 did not effect a substantive change in the division of exclusive jurisdiction between the Dioceses and General Convention which had theretofore been uniformly observed. One of the proposals made in 1895 by the Joint Commission on the Revision of the Constitution and Canons was to give General Convention "exclusive power to enact Canons defining the offenses for which Bishops, Presbyters and Deacons may be tried, and determining the penalties . . ." Like its other proposals to give General Convention supreme legislative powers in certain areas, however, this idea was thoroughly repudiated when the dioceses assembled in General Convention in Washington, D.C. in 1898.

Given this historical background, as Messrs. Runyan and McCall point out, there is no warrant for arguing that the change finally made to the wording of Article IX in 1901 was intended as a major change in course with regard to the powers of General Convention. If anything, the revisions approved in 1901 were settled upon only after the radical proposals to expand those powers had gone down to a stinging defeat.

The most telling evidence that no substantive change was effected in 1901, however, is the evidence pertaining to the extreme difficulty encountered in establishing appellate courts (Courts of Review) with the power to affirm, reverse or modify the decisions of diocesan tribunals. Once again, Edward White provides the definitive history (pp. 620-21; see also White & Dykman [1981], Vol. II, pp. 989-991):

The question of providing Appellate Courts has occupied the attention of a majority of the General Conventions since 1853. In the General Convention of that year, an amendment to the then sixth Article of the Constitution was approved by both Houses, inserting the words "until the General Convention shall provide a uniform mode of trial," after the words "In every Diocese the mode of trying Presbyters and Deacons may be instituted by the Convention of the Diocese."
. . .
The Convention of 1856 defeated the amendment to the Constitution adopted by the Convention of 1853, through failure of the Laity to concur therein. The Convention, however, approved of an amendment to the said sixth Article of the Constitution in another form, substituting for the words of the former proposed amendment the following: "but the General Convention may establish a Court of Appeals for the revision of Diocesan Courts," and also adding at the end of the Article the words: "Such Court of Appeals not to revise the determination of any question of fact."
. . .
The proposed amendment to Article VI. of the Constitution approved by the Convention of 1856 was defeated in both Houses of the Convention of 1859. So decisive was the defeat of the attempt to amend the Constitution to provide for a Court of Appeals, that the question was not again seriously brought before General Convention until 1871. From that time until the revision of the Constitution in 1901, when the amendment to the Constitution was finally enacted, providing that the General Convention might establish Courts of Review and an Ultimate Court of Appeal, the question was presented to almost every General Convention. . . .

Mr. White also notes that earlier proposals to establish Courts of Review by the adoption of a suitable Canon were all defeated by the argument that such a Canon could not properly be enacted without an amendment first being made to the Constitution. In 1904, after the Constitution had been successfully amended, General Convention enacted its first Canon to establish the desired Courts of Review. A proposal to establish an Ultimate Court of Review, however, went down to defeat after being considered by several subsequent Conventions.

If the argument in the Task Force II paper were correct, General Convention would have had the power -- without needing any authority in the Constitution -- to establish a Court of Review even before the Constitution was amended in 1901 to authorize such a Canon. That is because they argue the Constitution's silence on the power to legislate about clergy discipline after 1901 left the field open for General Convention to occupy. But the Constitution was similarly silent before 1901 on the subject of reviewing judgments from the diocesan tribunals, so if its silence constituted authority to legislate, then nothing stood in the way of General Convention's authority to create such courts of review. (And that, indeed, was the view of a number of canon lawyers in General Convention before 1901, but they remained in the minority.) Thus, every single proposal to that effect before 1901 -- and there were many -- was rejected.

Thus, the justification offered by the "Task Force II" on Title IV has no historical basis in fact, and constitutes a misreading of the intent of those who enacted the language. And as argued at the outset of this post, there is no rational basis for dividing the power to establish courts from the power to define their jurisdiction, constitution, and procedures. Read in that way, Article IX becomes a mere fig leaf: the real power to create the courts, notwithstanding the language of Article IX, lies in General Convention.

And so to read Article IX, in a paper submitted by the authors of the revisions to Title IV, is to express everything that is wrong with the current views of the leadership of ECUSA as to its polity. In the state court lawsuits, over and over again, that leadership has beat the drum for ECUSA's "hierarchical" polity, when -- as shown in the first post in this series -- there is no such hierarchy as between the dioceses themselves, or when assembled in General Convention. The proof of this point lies in the latest revisions to Title IV themselves. On the "Publications" page of General Convention may be found links to various documents regarding the revisions, including a set of "model" canons for the dioceses to enact in order to implement the revisions.

Without the dioceses enacting those (or similar canons) in their own separate conventions, the changes to Title IV approved at the national level in 2009 could never take effect. They would remain as airy abstractions, incapable of being translated to actions on the ground. The very fact that the Dioceses are necessary to give concrete fulfillment to the enactments of General Convention is proof enough, if any more were needed, that to speak of the "powers" of General Convention to enact canons "binding" on the separate Dioceses is utter and ignorant nonsense.