ACI on Mark McCall's Essay

Constitution And Canons: What Do They Tell Us About TEC?

Written by: The Anglican Communion Institute, Inc.
Saturday, September 6th, 2008

“Is The Episcopal Church Hierarchical?”

Near the center of the struggle now going on about the future of the Anglican Communion lays a dispute over the nature of the polity that ought to order its life in the years ahead. From the beginning of the debate, The Episcopal Church (TEC) has claimed that its form of governance is unique, and that the Communion as a whole ought to take this fact into account as decisions are made about future relations between its various Provinces.

ACI has received a paper from Mark McCall (a lawyer) showing that the polity of TEC is indeed unique, but in ways far different from those commonly sited. To be precise, the paper arrives at the sober conclusion that TEC is a church with no constitutionally established hierarchy above the level of the individual dioceses of which it is comprised. We are aware of the historical realities governing this assessment and believe the paper reaches an accurate set of conclusions. The implications of TEC’s novel form of governance both for TEC and the Anglican Communion are far reaching and of very serious import.

The significance of the argument contained in this paper is itself reason enough for ACI to make it public. Nevertheless, we have hesitated to do so because the argument can be put to what in our view is both good and bad use. As the author has said in a private communication, “The thrust of this paper is to identify a problem, not to prescribe a solution.” He goes on to say “different people will, of course, propose different solutions.”

It is the possible character of some of the solutions opened by the legal analysis this paper provides that has given us pause, and for this reason we are posting it with an introduction setting out what we believe its importance to be and the uses to which it can profitably be put. Our introductory comments fall under two headings: (1) background issues and areas of concern and (2) indications of positive ways forward.

Background Issues and Areas of Concern

Historical and legal analysis of TEC’s constitution shows clearly that TEC lacks, and has lacked from the beginning, a constitutionally established hierarchy that transcends those established in the various dioceses that now comprise its membership. Because there is in fact no constitutionally established hierarchy at the level of the “national church”, the Presiding Bishop and her advisors have been presented with challenges for which there is no constitutionally warranted form of address. The way in which the Office of the Presiding Bishop has addressed the issues raised by the recent actions of the Diocese of San Joaquin constitutes a prime example of the challenge.

The implication of Mr. McCall’s paper is that the Presiding Bishop and her advisors have attempted to meet the challenge presented by San Joaquin by means of aggressive claims and highly questionable legal actions that seek establishment of a hierarchical relation between the Presiding Bishop and the diocese but have no warrant in either TEC’s Constitution or Canons. In short, the paper presents its readers with the unsettling fact that the Presiding Bishop and her advisors are trying, by claiming a hierarchy that does not exist, to change the polity of TEC without constitutional warrant.

Needless to say, responses to aggressive tactics like these have been varied. One of the most questionable and hotly debated is temporary or final separation between national church and diocese. The dioceses of San Joaquin, Fort Worth, and Pittsburgh are present examples.

The paper we are posting provides a constitutional (and probably legal) warrant for such a strategy. It does not, however, make clear how questionable in some cases such a strategy is even to many within the dioceses concerned. There are more than simply legal issues at stake, and even they divide those of conservative persuasion. Neither does it make clear how divisive some versions of this strategy are within the Communion as a whole. We think here of the project to inaugurate a separate Anglican Province in North America. What is legally permitted may not on all occasions be theologically or morally justifiable. Our caution, therefore, is that the paper may provide justifiable constitutional license for a course of action that we believe in some instances to be arguably “legal” but nonetheless deleterious to both Gospel truth and Christian unity. We also must leave to the side the problem of having a serious legal argument—if indeed one believes one does—and prosecuting it successfully. The costs and time involved are enormous, and the matter will not be settled either easily or without tremendous pain and hardship.

On the other hand, the paper may provide a logical and legal way forward for those Anglo-Catholic dioceses who oppose the ordination of women but face the near certain rejection of a newly elected bishop who supports an all male priesthood. The Communion has said that this issue is a matter for reception rather than a matter of Communion teaching (as in the case of blessing same sex unions). The paper provides legal grounds that support the legitimate claims on the part of these dioceses to continue with their present practice by seeking recognition elsewhere than from TEC’s House of Bishops or its national headquarters. Should this prove the case, we hope and pray it will be through a scheme of Primatial Visitors that does not involve the creation of a new Province or tenuous links with dioceses on the other side of the world.

Indications of Positive Ways Forward

The posting below raises questions it does not try to answer. It also suggests the possibility of positive courses of action that we believe necessary if the Anglican Communion is to be preserved as a credible form of Catholic Christianity. The point of most immediate promise concerns the covenant that soon will be presented for ratification to the Communion as a whole.

Sad to say, it seems virtually certain that TEC will reject any covenant proposal that limits its autonomy. Its leadership has consistently argued for a view of communion that resides in mutual hospitality and practice (as seen from the leadership’s perspective). They have also made clear their resistance to any meaningful form of restraint on a Province that decides to act against the views of the Communion as a whole.

Should the General Convention reject the proposed covenant, the paper we are posting clearly implies that individual dioceses within TEC have a constitutional right to vote for adoption on their own. The Instruments of Communion would then have to decide whether or not to allow individual dioceses that dissent from the negative actions of their Province to be covenant partners with the other Provinces of the Communion. Circumstances such as these present other polity issues, but the Archbishop of Canterbury has already indicated the theological appropriateness of this course of action. It would, nonetheless, still have to receive some form of Communion approval. It is difficult to imagine that such approval would not be forthcoming.

It is painful to think of TEC rejecting the covenant, though this is the course of action intimated. This eventuality will result in individual dioceses being put in the position of adopting a covenant on their own. There is a promise of renewal and reform attached to these possibilities. By adopting the covenant, dissenting dioceses within TEC would place themselves within a communion of provinces and dioceses wherein effective hierarchies are extant. In so doing they would place the hierarchy that orders their own dioceses within a more Catholic (with big C) and less congregationally ordered form of polity.

Our concern is for a Communion ordered by Instruments, and an Episcopal Church in full relationship with it. Here is our rightful and proper ‘hierarchy.’ We post this paper in accordance with this concern. It makes clear the nature of TEC’s polity at a time when its membership (and for that matter that of the rest of the Anglican Communion) is dangerously ignorant of the form and manner of its governance. More important, it makes clear how very congregational (and indeed un-episcopal) TEC’s constitution is, considered apart from the wider Communion family. It suggests as well, however, that through the covenant process a hierarchy might come to form within TEC, precisely through the efforts of those bishops and dioceses who differentiate themselves from the congregationalism that now defines TEC’s polity (and frame of mind) and in so doing locate themselves within the more Catholic form of the Anglican Communion as a whole.

Philip Turner
Christopher Seitz
Ephraim Radner

Summary: “Is The Episcopal Church Hierarchical?” by Mark McCall

The question posed in the title of this paper may seem at first glance to be a variant of the perennial rhetorical tautology “Is the Pope Catholic?” As will be shown below, the answer to this second question is definitely “yes,” but the answer to the first is much less obvious and ultimately will be “yes, but,” at least at the national level. TEC is hierarchical, but the hierarchy is not what you think. It is often said that TEC’s polity is unique, democratic and misunderstood. Whether it is democratic is debatable, but it is certainly unique and unquestionably misunderstood, not least by many in TEC itself.

The task of this analysis is to examine the governance and constitution of TEC from the perspective of civil law. What may appear to be a similar exercise has been undertaken by some who seek to determine whether TEC’s polity is federal, confederal or unitary. For example, one source cited by proponents of a central hierarchy within TEC is an unpublished doctoral dissertation in political science submitted in 1959. This dissertation considered different models of government by which political sovereigns are organized and sovereign power allocated. The question posed in that dissertation was: what kind of government would TEC be? But TEC is not a sovereign government; for one thing, sovereigns are immune from the law they create unless they waive that immunity. Their subjects, on the other hand, including those who organize themselves into voluntary associations such as religious societies, are very much subject to the civil law. Asking what kind of “government” TEC has is a category mistake. It is not a government of any kind.

That is not to say that this question is of no professional interest to political scientists, but only to recognize that it does not even address, much less answer, the question of TEC’s status under the law. That is the purpose of this paper. A legal analysis does not depend on classifications derived from political theorists, but on the framework provided by the law, a framework derived from principles found in enactments by legislatures and case law developed by the courts. The legal categories relevant to this analysis are well-defined. They are those of hierarchy, supremacy, subordination, preemption and finality. These concepts are found in a variety of legal contexts, including of course governmental constitutions, but it is their legal significance, not their political classification, that is relevant. In the case of the issues addressed in this paper, the United States Supreme Court has specified the categories and analysis that are to be used in determining questions of church hierarchy. That is the method of analysis used below.

This paper develops the following argument:

1. The legal categories of hierarchy are well known. They typically are defined in precise technical terms. These categories were inherited from English common law and were substantially developed by American jurisprudence shortly after independence.
2. TEC’s constitution is largely silent on questions of hierarchy. The legal language of hierarchy is almost totally absent. Two fundamental bodies are identified in that constitution, a general convention that is established by the constitution itself and dioceses that existed prior to the constitution’s adoption. In neither instance does the constitution define in general terms the powers and limitations of the bodies.
3. Explicit language of hierarchy and supremacy is readily apparent in the governing constitutions of other churches.
4. A careful review of the history of TEC’s formation demonstrates that the lack of these hierarchical concepts was not inadvertent. Its first constitution was drafted and reviewed by sophisticated lawyers who were familiar with, and indeed had themselves developed, the American jurisprudence on hierarchy. The relevant constitutional language is virtually unchanged since the initial draft of the constitution. It was the explicit intention of TEC’s founders to create a decentralized structure with primary authority reserved to the diocese. Some of the churches were still subject to state control at the time the first constitution was drafted, and, in any event, there were so many profound differences among the independent churches that combined to form TEC that they united on the explicit basis that state (now diocesan) authority to maintain these differences would be preserved.
5. Under the law, churches are treated as voluntary associations pursuant to well-defined principles of contract law. They are free to agree on whatever principles of governance they wish. The role of the courts under the First Amendment is first to determine what principles of governance have been agreed and then to defer to the body or bodies specified as the governing authority in the church’s constitution. The Supreme Court has recognized that interpreting a church’s constitution may require “careful examination” of the governing instruments, that in some cases the result may be ambiguous, and that this inquiry could itself be constitutionally impermissible, leaving the courts unable to resolve the dispute. The Court has identified the indicia of hierarchy and supremacy by which the courts determine what is the highest judicatory of a religious body. The General Convention of TEC does not posses those indicia of hierarchy. The cases to date concerning TEC have ruled in favor of the diocese or its bishop as the highest authority.
6. The implications of this analysis for issues facing TEC and the wider Anglican Communion are summarized in the conclusion.

The full 89 pages of Mark McCall's essay are found at:
http://anglicancommunioninstitute.com/wp-content/uploads/2008/09/is_the_episcopal_church_hierdoc.pdf