A "Trouncing"? Or a Misfire?

From The Anglican Curmudgeon (a lawyer):

Thursday, September 18, 2008

Progressive Episcopalians Pittsburgh have published a paper by Dr. Joan Gundersen, a specialist in Episcopal Church history, which was written in response to attorney Mark McCall's study published at the Anglican Communion Institute, "Is the Episcopal Church Hierarchical?" (I wrote a brief summary of its 89 pages here.)

Over at his Preludium site, Canon Mark Harris trumpets: "Gundersen Trounces McCall: Episcopal Church IS Hierarchical." (The link to Gundersen's paper at Preludium is currently broken, and you should follow the one above.) I would not be so quick to rush to the bleachers, Canon Harris.

I have had time to give Dr. Gundersen's paper only a cursory look this morning, but what I have read is enough to tell me that she writes from the standpoint of a church historian, and shows little understanding for, or appreciation of, the legal context in which Mark McCall's arguments are carefully couched. His paper was, after all, an analysis of a legal problem: would a court of law today be correct in holding that The Episcopal Church is hierarchical?

Dr. Gundersen cites as a "fatal flaw" Mark McCall's supposed omission of some early language from Article 2 of the 1785 PECUSA Constitution:

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.


To Dr. Gundersen, this language demonstrates that the Church's dioceses were subordinate to General Convention from the start. But Mr. McCall actually refers to the very same language at note 44 of his paper (text of the note is on p. 81):

The first constitution contained a provision making General Convention actions binding on dioceses that were not present. Id., p. 99. In the jurisprudence of the time, explained above in connection with the treaty nullification controversy, this established General Convention as a legislative, not a consultative, body. In legal terminology, this is a rule of applicability, not a rule of priority. It subjects General Convention legislation to the usual rule of priority, the last in time rule, absent specification of another rule of priority using the language of hierarchy. It is significant that the highly competent lawyers drafting TEC’s first constitution expressly included a rule of applicability, but omitted a rule of priority. In any event, this provision was later deleted from TEC’s constitution.

(Bold added for emphasis.) It is apparent that it is Dr. Gundersen who has not read Mark McCall's paper, for she neither acknowledges this footnote, nor does she state that the language in question was deleted in the comprehensive revision of the Constitution approved in 1901. The leading authorities on the history of TEC's Constitution, Messrs. White & Dykman, have this to say about the deletion of the language relied upon so heavily by Dr. Gundersen:

Finally, the provision that dioceses unrepresented in any General Convention were nevertheless to be bound by the acts of such Convention was omitted, presumably because the time when it had any useful application had long since passed.

(White & Dykman, Vol I, p. 31; italics added for emphasis.) So the language which Dr. Gundersen proudly exhibits as a "fatal flaw" in Mr. McCall's argument was in fact deservedly relegated to footnote status in his paper.

There are numerous similar misperceptions underlying Dr. Gundersen's paper---she confuses the legal principle of "subsidiarity" with that of "subordination", and she treats "supremacy" as a brand-new concept having its birth at the Constitutional Convention in Philadelphia in 1789, when in fact every colonial churchman had known of King Henry VIII's "Oath of Supremacy" since the time of the beheading of Sir Thomas More for refusing to take it.

Doubtless there will be more extensive analyses appearing in coming days from other knowledgeable attorneys and legal scholars that will show in more detail the failings of Dr. Gundersen's paper to engage the principal legal ideas behind Mr. McCall's work. (Certainly not the least of those will be a refutation by Mark McCall himself, to appear on the website of the Anglican Communion Institute.) But for now, at any rate, I would not want to join the bleachers where Canon Mark Harris and Lionel Deimel are egging on the crowd of TEC supremacists. They and those for whom they write may end up, after all, with the egg on their faces.

Posted by A. S. Haley at 7:38 AM