The Canon Should Lay Off the Canons

from Anglican Curmudgeon by A. S. Haley

I enjoy reading the Rev. Canon Mark Harris' blog Preludium, I really do. He can always be counted on to present the views of those who currently are at the helm of the Episcopal Church (USA), and he usually does so in an entertaining manner. Being a Canon in the Church, however, does not give anyone particular insights into the Canons. (I believe a course in Church canon law is included in the curriculum at most, if not all, Episcopal seminaries. As professors of canon law would be the first to admit, however, passing one of their courses does not a canon lawyer make.)

Today Canon Harris chooses to take on the case of the Diocese of San Joaquin, which has never expressly acceded to the Canons of the Episcopal Church (USA). Back when it was a Missionary Diocese, it did so in its Constitution. For reasons which are lost in the past, the phrase "and Canons" was left out of the new Constitution's accession clause when the Diocese of San Joaquin formed and was admitted to the Church in 1961. The language was passed at a special convocation of the new Diocese, and then was reviewed by the members of the General Convention's Committees (one in each House) on the Admission of New Dioceses, who in many cases had trained in the law before joining the Church -- several even had LL.D.'s. It is difficult to think that the omission, therefore, was inadvertent -- but who now knows?

All that can be observed is that, not counting foreign dioceses or those which have withdrawn, there are somefifteen current dioceses in the Church which have Constitutions which accede to neither the national Constitutionnor the Canons, and another fifteen which, like the Diocese of San Joaquin, accede only to the Constitution. The fact that diocesan accession clauses are all over the place, accordingly, makes any argument which is based on what they do not say a very weak argument, indeed.

Canon Harris presents a little syllogism which to him proves that the Diocese of San Joaquin is indeed subject to the Church's Canons. It runs like this:

A. The General Convention has the authority to enact Canons for the whole Church.

B. The Constitution of the Diocese of San Joaquin has always acknowledged the authority of General Convention.

C. Ergo, the Diocese of San Joaquin must be bound by the Canons of the Church.

Whoa! That conclusion does not in any way follow from the premises, because Premise B assumes that the "authority" which the Diocese acknowledges is the same "authority" of General Convention to enact Canons. Let's just put that assumption to the test, shall we?

Suppose General Convention enacts a Canon which allows horses to be elected bishops in the Church. (Yes, I know, it's a ridiculously extreme example, but that is just the point.) Would Canon Harris contend that the Diocese of San Joaquin was bound by that Canon to recognize a consecrated horse?

Obviously not (I hope). So what does that extreme example tell us? That there are limits on the "authority of General Convention." And that when a Diocese says it "acknowledges the authority of General Convention", it is not saying that it will be bound by whatever canons General Convention decides to enact.

Now take another example, closer to home. In 1982, General Convention amended the Canons to provide that "no unbaptized person shall be eligible to receive Holy Communion in this Church." Did it exceed its authority in doing so? Apparently some dioceses, including the Diocese of San Joaquin and its provisional bishop, are of that opinion -- because they refuse to obey it. (I also know several churches in the Diocese of Oregon which openly ignore it, and doubtless there are many, many others. To my knowledge, Canon Harris has not declared his own practice in this regard.) They invite everyone present, baptized or not, to partake of Communion.

Where are the calls for presentment of the clergy who administer Holy Communion to anyone, regardless of whether they are baptized? Do not their violations of that Canon count as violations of their ordination vows, too? And where, as in the case of a bishop with jurisdiction, like Bishop Lamb of San Joaquin, the disobedience is at a diocesan level, how can anyone argue that Dioceses are "bound" by the Canons of General Convention?

Or take another example, now hitting much closer to Canon Harris' views: can General Convention empower the Presiding Bishop by Canon to issue a Pastoral Directive to any diocesan bishop, at any time, without prior notice, and solely on her own judgment and authority? Is every Diocese "bound" by that Canon? Could, for example, Bishop Jefferts Schori issue a pastoral directive to Bishop Lamb to cease his violations of Canon I.17.7?

Don't look now, but General Convention 2009 did exactly that at Anaheim; no doubt Canon Harris even voted for the change as a clerical deputy from the Diocese of Delaware. But was that change constitutional? Article II, Section 3 of the Church's Constitution provides: "A Bishop shall confine the exercise of such office to the Diocese in which elected." Whence, then, comes the authority of General Convention to make the Presiding Bishop a metropolitan with supreme authority over every other Bishop acting in his or her own Diocese?

Bishop Lawrence of South Carolina has denied that General Convention has that authority, and his Diocesan Convention has backed him up, by refusing to accede to the new Title IV revisions adopted at Anaheim in 2009. But wait -- on Canon Harris' say-so, a Diocese cannot refuse to accede to the Canons, even if their Constitution leaves out the words that do just that. So where does that leave us? Just what "authority" does General Convention have to pass Canons, and under what circumstances are they binding on the Dioceses? And who is the judge of that?

The answers to those questions are not simple, and no doubt Canon Harris will not like them. But in a canonical nutshell, the situation is this: General Convention has no more authority over the several Dioceses than Congress did over the several States under the Articles of Confederation. If Congress in the time of the Articles passed a law which a particular State did not like, that State could simply pass its own contrary law to replace it, and there was absolutely nothing Congress could do about it.

That situation changed, of course, when the Constitutional Convention of 1789 proposed a new Constitution, which contained in Article VI a Supremacy Clause, making the Constitution and all laws of Congress enacted pursuant thereto "the supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." From that point forward, no State could pass a law which was contrary to a law passed by Congress (provided the latter was constitutional).

But the Episcopal Church, which also organized in 1789, has never had a Supremacy Clause in its Constitution -- and so in that respect, the authority of its General Convention to pass Canons is on a par with that of Congress under the former Articles. In 1895, as I described in this post, a Standing Commission on the Constitution proposed to General Convention that a Supremacy Clause be added to the Church Constitution. It would have read (with 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.

This proposal, made in 1895, was overwhelmingly rejected in the House of Deputies, voting by orders, at the Convention in Baltimore in 1898. The Dioceses showed by their strong negative votes that they did not wish to cede "supreme authority" to General Convention. That is the way the matter was decided in 1898, and that is the way the matter has remained ever since.

People who are not trained in the Canons are often not aware of the significance of legislative history, or of the importance of delving into the work of prior Conventions before coming to any conclusions about what current language means. I do not hold Canon Harris to that standard, and so I do not fault him for his opinions. But his opinions in this instance have nothing to do with the actual "authority of General Convention" in the Episcopal Church (USA).