Written by: Mr. Mark McCall
Monday, October 17th, 2011
by Mark McCall, Esq.
One of the allegations now being made against Bishop Lawrence is that the decision by the Diocese of South Carolina to continue to adhere to the prior Title IV canons rather than adopt the controversial new revisions constitutes abandonment by being an open renunciation of the discipline of TEC. Last March Alan Runyan and I published an article that undertook a careful examination of the history of TEC’s Constitution as it relates to clergy discipline. We started at the beginning in 1789, but gave particular attention to those constitutional revisions in 1901 that the drafters of the new Title IV claim “profoundly changed” the constitutional allocation of authority in the church. That article provides conclusive proof that the Constitution as now in effect allocates authority for discipline of priests and deacons exclusively to the dioceses except for appeals.
This issue has been much debated in the history of TEC, and our article contains a detailed examination of that history. But throughout those years of debates, the result was always the same: disciplinary authority remained with the dioceses. Our article provides compelling proof that the revisions to Title IV are unconstitutional. It cannot be a renunciation of the discipline of the church to uphold that discipline as specified in the Constitution by resisting unconstitutional encroachment on the diocese’s exclusive authority. One might disagree with the opinion of the Diocese of South Carolina, but one cannot regard upholding at great personal cost the constitutional polity of the church as always understood in the past as an “open renunciation.”
Here are key excerpts from our March article:
The defenders of the recent Title IV revisions acknowledge that from the inception in 1789 and throughout the nineteenth century the General Convention did not have constitutional authority to enact a uniform disciplinary canon for presbyters and deacons. They argue, however, that the constitutional allocation of authority was “profoundly changed” in 1901:
[Quoting the drafters of the Title IV revisions] 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.
Mr. Runyan and I then noted:
If the apparently minor wording change from “mode of trying instituted” to “tried by a court instituted” were the profound reversal of constitutional authority claimed by the revisers of Title IV, one would expect legislative history articulating that significance which would otherwise be obscure. The revisers cite none, only a common dictionary. One would also expect that White & Dykman, as a part of its discussion about the many rejected attempts that had been made to limit diocesan authority over the discipline of its clergy, would have noticed this “profound change” if it had been made. They did not because such a reading is simply wrong.
In fact, the legislative history of the 1901 constitutional revision points conclusively in the other direction.
We then considered in detail the history of the 1901 revisions, including the reasons for using the identical new terminology to describe the respective authority of both General Convention and the dioceses and the very intentional change of “may” to “shall” when describing diocesan authority to indicate after decades of debate in the nineteenth century that General Convention had no concurrent authority in this area. We concluded:
With this careful study of the legislative history of Article IX, we can summarize the conclusions and readily see that the 1901 revision to the Constitution did not “profoundly change” the constitutional allocation of exclusive authority for the trial of other clergy in the diocesan conventions:
- The authority of both General Convention and diocesan conventions in their respective areas was preserved, but restated using the terminology of “establish courts” rather than “mode of trying.” If the authority of diocesan conventions was “profoundly changed,” the authority of General Convention was as well.
- The authority of General Convention for appeals is expressed using the same terminology as used in the cases of trials.
- That the authority to “establish courts” was not seen as lesser than the authority to institute the “mode of trying” is apparent from the unsuccessful proposals using that language as a means of transferring authority from diocesan conventions to General Convention.
- Changing “may” to “shall” closed the argument debated in the nineteenth century that the use of “may” signaled concurrent jurisdiction by General Convention.
- White & Dykman do not suggest any change in the allocation of authority in their summary of the changes to the disciplinary article made in 1901.
The March article, “Title IV and the Constitution: Dioceses’ Exclusive Authority,” can be read here.
The pdf version with footnotes can be read here.
October 17 2011 08:53 pm | Articles