Monday, November 05, 2007

The Episcopal Church: Confederal, Federal or Unitary?

The following is a summary of the 1959 dissertation by James Allen (Jim) Dator, Professor, and Director of the Hawaii Research Center for Futures Studies, Department of Political Science, University of Hawaii at Manoa. The entire essay can be seen here. The summary is reprinted here with Dr. Dator's permission (thanks, Paul).

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The title of my dissertation is The Government of the Protestant Episcopal Church in the United States of America: Confederal, Federal, or Unitary?

It was accepted by the Faculty of the Graduate School (School of Government) of The American University, Washington, DC, in 1959 in partial fulfillment of the requirements for the degree of Doctor of Philosophy.

As the introduction to my dissertation clearly states, I wrote this dissertation to resolve a constitutional conundrum that personally perplexed and interested me, and not because I had any a priori preference for one outcome over others. Moreover I was not involved in any actual controversy in the Church, and I don't recall that it was in fact an especially hot topic at the time, though the matter has always been in dispute. It was just that, as a political scientist (and Anglican) who had to write a doctoral dissertation about something I decided to write it on this issue since I wanted to know what the fundamental structure of the PECUSA was, having read so many conflicting statements about it. I was also interested in the emerging topic of "private governance" and saw this dissertation as a contribution to that field.

I started my dissertation out by reviewing the extensive history of differences of opinion (and strident conflicts) within PECUSA about whether the government is confederal, federal or unitary (and these terms were often specifically used over the history of the controversies).

I then did what I believed no one had done before--carefully defined what the three terms (confederal, federal, or unitary) actually meant, so that I could determine what the case truly was (important in part because historically people often used the terms very loosely, as I showed, and thus misleadingly for people reading the
comments later).

Then, on page 53 and 54, after carefully reviewing the various drafts of a constitution for PECUSA, and the Church's Constitution as adopted on October 2, 1789, I conclude two things:

(1) The Church's constitution was NOT made in imitation of the US Constitution. Thus, while the US Constitution is a federal system, giving the states certain rights and the central government other rights, "there is not explicit in the Church's Constitution of 1789 any definition of a division of powers [between the dioceses and the General Convention], even though the framers of that Constitution had models of both the Articles of Confederation and the United States Constitution before them" (p. 53).

(2) PECUSA was created as a unitary and not a federal government: "In summary, neither Bishop White's "Case", nor the "Fundamental Principles" of 1784, nor the "General Ecclesiastical Constitution" of 1785, nor the "General Constitution of 1786," nor the Constitution of 1789 provided explicitly for a constitutional division of powers. Such a division of powers is an essential manifestation of both federal and confederal governments. Neither is there any other evidence to indicate that the Constitution is one of a confederation. Indeed, as far as the written Constitution is explicitly concerned, the Church's government is unitary" (p. 54).

This was not changed subsequently: "An examination of the constitutional amendments accepted by the General Convention [from 1789-1959] shows that no section has been added to the Constitution either for the specific or incidental purpose of affirming or denying the federal or confederal (p. 54) structure of the Church or of a division of powers between the central and diocesan governments" (p. 55). The original unitary structure still stands.

Concerning the Canons of the Church, I wrote on p. 57ff, "The [first] canons were concerned only with establishing the qualifications of candidates to Holy Orders throughout the Church. Consequently it was clearly determined that while candidates were required to have the approval of and guarantee of support from the ecclesiastical authorities in their dioceses, General Convention was competent to set any qualifications supplementing or obliterating those of the dioceses." "These first canons also showed that General Convention could significantly control the internal instruments of government of the dioceses even though the Constitution did not give them specific authority to do so." "Thus, the first General Convention not only presumed competence for controlling diocesan governments and the qualifications of ministers, but for the operation of parochial (p. 58) government as well. Such far-reaching authority is more typical of a unitary than of a federal or confederal government, especially inasmuch as the Constitution did not specifically or by reasonable inference give General Convention these powers" [ie., they were not "given" because they were assumed naturally to exist]. "There is little of significance about which the dioceses possess exclusive jurisdiction--and.even this may at any time be removed by General Convention through canonical legislation or constitutional amendment" (p. 59).

Since the way a constitution is amended is a strong indicator as to whether it is unitary, federal, or confederal, I devoted thirty-four mind-numbing pages to this issue and said, "It must be concluded that there is no evidence to lead to the conclusion that a federal or confederal government was intended in the adoption of the 1789 Constitution, as far as the process of enactment itself is concerned. The debate on the reconstitution of the Episcopal Church in both Diocesan and General Conventions was at no time concerned with the question of a distribution of powers and the protection of diocesan rights." "The amending process, also, is neither federal nor confederal, but, rather, unitary" (p. 95).

Similarly, after a lengthy consideration of who attends and participates in meetings of the General Convention I concluded, "Consequently, there is no evidence sufficiently strong to lead to the conclusion that members of General Convention are representatives of the dioceses of the Church. While membership in the House of Clerical and Lay Deputies is apportioned on an equal basis to the dioceses, and on a reduced but proportionate basis to missionary districts, members of the House of Deputies are representatives of the Church 'in' the dioceses, not 'of' the dioceses. It is the Church, in two orders, which is being represented in the House of
Deputies, not the dioceses.

"In the House of Bishops there is no problem about representation. Since all Bishops of the Church are permitted full privileges in the House of Bishops, there is no question of whom they represent. The House of Bishops represents nothing, It is composed of all the Bishops of the Church, holding their membership virtute officii" (p. 122).

Voting procedures in General Convention also are not those of a federal or confederal system: "Voting normally proceeds in the House of Deputies on the basis of majority rule in the House--regardless of orders or dioceses. The Vote by Orders procedure may be requested by the members of either order of a dioceses' delegates or may be constitutionally or canonically required on special measures. There is no requirement for a vote to be taken by dioceses in the House of Bishops. Consequently, while the vote by orders does appear federal or confederal, it is not a mandatory method in all instances, and the alternate voting procedures are not essentially connected with the federal, confederal, or unitary question"(p. 128).

"The bicameralism of General Convention, as such, appears in no way to have been meant to emphasize a federal structure" (p. 129).

"There appears to be no limit to the power of General Convention but its own self-limitations. Specifically, there is no evidence in the Constitution that the power of the General Convention was to be in any way limited in favor of diocesan conventions, nor that the two were to have mutually exclusive powers in any particular area" as would be the case were the Church federal or confederal (p.131f).

"The General Convention exhibits two structural characteristics that are reminiscent of federal, and especially confederal, governments in its basis of apportionment to, and vote by orders provision in, the House of Deputies of the General Convention. However, these features are placed within a legislative framework that otherwise appears to be unitary in design and intent." "Most importantly, the governing powers of General Convention are not fundamentally limited by the Constitution"(132).

Concerning the episcopate, I said "Thus the conclusion must be reached on the basis both of precedent and the analysis of the written Constitutions and Canon, that, while in the absence of legislation by General Convention to the contrary the dioceses may define the roles of their bishops, there is no legal basis upon which General Convention can be kept from enacting its own all-inclusive canons for the election and conduct of the episcopate and from overriding all diocesan Canons to the contrary.

"[I]t seems that there is no legal barrier, within the Church's polity itself as defined by the Constitution and Canons, to prevent legislation on the episcopate" (p. 156).

Concerning the office of the Presiding Bishop, the National Council, the method of financing the Church, I concluded, "The Presiding Bishop, the Church's 'chief executive,' has never been (p. 171) in any way governmentally responsible to the dioceses. Instead he was originally responsible (if at all) only to the House of Bishops, and especially more recently to the General Convention as a whole. The dioceses do not participate in his selection at all."

"The same is also true of the National Council, an agency wholly extra-constitutional.." "The National Council remains very considerably under the control of General Convention, and in the execution of its programs, upon the pleasure of dioceses and parishes. But this political (p. 172) weakness should not be interpreted as evidence of federalism or confederalism".

It was in its reliance on diocesan courts and the absence of any courts of the national church alone that the government of the Church most appeared confederal. There was not even a national final court of appeals from diocesan and provincial decisions. The authority was given in 1901 to the General Convention to create a "final court of appeals on matters of doctrine, faith or worship"--thus indicating that the system is fundamentally unitary--though the Convention had not created such a court by the time I wrote the dissertation (p. 180f). I also discussed the role of the civil courts in Church disputes (pp. 181-186).

And then, in a chapter on the provinces and dioceses, I discuss whether it is legal for a diocese to nullify an act of General Convention and/or to secede from the PECUSA:

"THE PROBLEM OF NULLIFICATION AND SECESSION. Do the dioceses posses the right to nullify or otherwise declare of no effect (and make their declaration effective) legislation by General Convention? May any diocese secede from the Church for cause or at will?

"There has never been anything in the Constitution of the Church which allowed, or reasonably could be inferred to allow, a diocese either to nullify acts of General Convention or to secede from the Church against General Convention's will, either to become an independent Church itself or to join with other dioceses to form a separate Church, or to unite with an existing church.

"As to the matter of practice, there appears to have been no instance in the Church's history when a diocese has declared at [sic] act of General Convention of no effect within that diocese's boundaries. Therefore it seems that no diocese has ever acted (p. 200) to nullify an act of General Convention. Thus, in answer to the first question raised above, it may be stated that dioceses do not possess the right of nullification over General Conventions' actions, but, rather, must obey them. There being no other body within the Church to interpret the Church's Constitution and Canons save the General Convention, a diocese disagreeing with these document legal can only seek to have remedial legislation passed by the Convention itself."

"In regard to the second question, however, the answer is more involved. While the Constitution and Canons do not allow for secession per se, there has been one major act of separation within the Protestant Episcopal Church in the United States. This act of separation was the result of the formation of the Protestant Episcopal Church in the Confederate States of America" (p. 201).

The key word here is "in:" the Church IN the US or the Confederate States, not OF the US/Confederacy. Just as independence from England in 1776 had required a new governance system (but no doctrinal differences) for the former Church of England in the colonies, so many churchmen in the South made a similar argument when the South seceded from the North. However, even though many in the North were sympathetic to the logic of the Southern argument, at no time was the Southern church considered to be legitimate by PECUSA: at the only General Convention held during the Civil War/War Between the States, the names of each of the southern dioceses were called during roll call votes, recognizing that they were still part of PECUSA.

Moreover, the fact that the first General Convention was held immediately after the War was over, and before Reconstruction caused great bitterness between North and South, meant that the brief separation was quickly healed with all of the southern dioceses rejoining the Church and without any mention, must less sanction, of their separation being taken by the Church.

Thus, even the experience of the Church in the Confederate States "leads to the conclusion that a diocese can not secede without the permission of General Convention." (p. 213).

The substantive part of my dissertation concluded with a consideration of how new dioceses are admitted into the Church, "the governmental responsibility of missionary districts, and the question of whether membership in the Episcopal Church is determined by the parish, diocese, or National Church, particularly whether or not a person has dual membership in both the dioceses and National Church" (p. 214).

Here as in every other instance the conclusion was that the Church is unitary and not federal or confederal. "The absence of dual membership between the national Church and the dioceses, or the fact that the individual is member of the Protestant Episcopal Church in the United States alone, strengthens this conclusion" (p, 224).

The final chapter, Six, then carefully (pp. 225-246) compares the various aspects of Church governance described in the previous chapters, with the criteria for evaluation developed in the first chapter, and concludes: "The Episcopal Church is unitary in structure, but it is highly decentralized, both the dioceses and the parishes participating fully and extensively in the confederal-like decentralization" (p. 245).

In the appendix I briefly considered several other matters, some not directly related to the subject of the dissertation (eg, the name of the Church, and the various "parties" within it), but some are (eg., various opinions on the role of the "Ancient Canons", the Constitution of the Confederate Church, and the attempt to create a "Reformed Episcopal Church" in 1873). An important point about the latter is that the split was not made on a diocesan basis, but on the basis of certain"low church" people who thought the Church was becoming too "high church" (296-299). Even more significantly for the point of my dissertation, both the Church in the Confederate States and the Reformed Church were created on a unitary basis! There are no rights, including secession, reserved for the dioceses in either splinter group.

Thus, in spite of a great deal of rhetoric and agitation to the contrary there is nothing in the history of PECUSA through 1959 that supports the right of a diocese or parish to secede from the Church.

James Allen Dator
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Thank you, Dr. Dator. I especially appreciated the clarity you bring to the matter of the Protestant Episcopal Church in the Confederate States of America.

What did you find noteworthy in this summary?

J.

UPDATE: Dr. Dator's summary first appeared at the Episcopal Cafe on November 3. I was not aware of this when I republished it here.

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