Thursday, February 12, 2009

The ACNA Constitution: What You See Is What You Get

By Robin G. Jordan

This is an updated and revised version of an article that I previously posted on Anglicans Ablaze.

In the days leading up to the Common Cause Leadership Council’s adoption of the provisional constitution and canons of the Anglican Church in North America a spokesman of the Anglican Communion Network advised me that the provisional constitution and canons would be open to public comment for a period of a year before their final ratification and the provisional constitution and canons were just that—provisional. They were interim documents intended to provide the new province with an organizational structure until the constitution and canons of the ACNA in their final form had been drafted and ratified. Around the same time I learned from another source in Common Cause that the provisional constitution once adopted by the Common Cause Leadership Council would be “the” constitution of the ACNA. More recently I confirmed that the provisional constitution in its present form is indeed the final version of the ACNA constitution that will be presented for the ratification by the groups attending the so-called “constitutional convention,” now being billed as an “inaugural convention,” in Bedford, Texas on August 31, 2009.

The provisional constitution, however, suffers from a number of flaws and objectionable provisions which I believe are of such magnitude and consequence as to invite the attention of North American Anglicans who have more than a casual interest in the new province and its future.

1. Article II states that “new dioceses, clusters or networks (whether regional or affinity-based)” may be “added” to the new province by “invitation” of the Provincial Council. This section taken in its literal and grammatical sense means that a diocese, cluster, or network cannot apply for admission to the new province. It can be only admitted to the new province by invitation. Canon 3 does not interpret the Article in this way but if a strict interpretation of the Article were applied to Canon 3, it would be unconstitutional.

2. Article VI, Section 1 states that “the chief work of the Provincial Assembly shall be strengthening the mission of the Province” But it is difficult to see how it will go about strengthening the Province’s mission as the provisional constitution assigns no real authority or power to the body. The Provincial Assembly elects the Provincial Council and ratifies its enactments. That is the extent of its “powers.”

Article VI, Section 2 of the provisional constitution uses the imperative “shall” in reference to the Provincial Assembly’s ratification of constitutional amendments and canons.

“The Provincial Assembly shall ratify Constitutional amendments and Canons adopted by the Provincial Council. The process of ratification is set forth by canon.”

This section taken in its literal and grammatical sense means that the Provisional Assembly must ratify the enactments of the Provincial Council since the use of “shall” expresses command or obligation to ratify these enactments.

3. Article VII, Section 2 gives greater representation in the Provincial Council to those in holy orders than to the laity. The number of bishops and other clergy in that body outnumbers the number of laity. See my comments in paragraph 4.

4. Article V gives to the Provisional Council the power to make canons. Article VII, Section 1 identifies the Provincial Council as “the governing body for the Anglican Church in North America” and gives that body the authority “to establish the program and budget of the Province.” Article XII gives the Provincial Council power to expel a cluster, diocese, or network from the Province.

The combining of legislative and executive functions in one body sets the government of the new province apart from that of other provinces of the Anglican Communion. In the more common forms of synodical government in the Anglican Communion the Provincial Council would be the executive body of the Provincial Assembly, which would be the governing body of the Province. The Provincial Council would be subject to control and direction of the Provincial Assembly and would be accountable to the Provincial Assembly for its actions and its policies. The Provincial Assembly would also be the highest legislative body of the Province with the power to make canons and to amend the constitution of the Province. It would determine the program and budget of the Province. It would also admit new clusters, dioceses, and networks to the Province and expel them. Even the Church of Nigeria (Anglican Communion), the constitution of which gives considerable power to the archbishop and primate of Nigeria, has a General Synod that is the highest legislative body of that province.

The provisional constitution takes away powers that are more commonly exercised by the Provincial Assembly and gives them to the Provincial Council. If the Anglican Church in North America were The Episcopal Church, it would be equivalent of taking the powers of the General Convention and giving them to the Executive Council. Indeed the provisional constitution does what a number of Episcopal leaders would like to see done in The Episcopal Church. Then they would not have to deal with the possibility of a General Convention that did not agree with the direction that they were taking the church, adopting a different course for the denomination.

A growing number of North American Anglicans are not happy with the composition of the Provincial Council and the concentration of authority and power in that body. The Provincial Council is not as representative a body as the Provincial Assembly, and clergy form two-thirds of its members. North American Anglicans are accustomed to a more representative form of synodical government. They have not failed to note that the composition of the Provincial Council signals a limited role for the laity in the governance of the Province and the concentration of authority and power in the Provincial Council strongly resembles the increasing centralization observed in The Episcopal Church. The concentration of authority and power in the Provincial Council places the important decision-making in the hands of a relatively small group.

They have also noted that the Provincial Council has no real checks on its exercise of authority and power. It is not accountable to the Provincial Assembly that elects it. The provisional constitution does not require the Provincial Council to make reports or provide documents to the Provincial Assembly nor does the Provincial Assembly have the power to require the Provincial Council to make reports or provide documents to that body. The Provincial Assembly has no power to censure the actions and policies of the Provincial Council, to remove its members, or to otherwise hold the Provincial Council accountable for its actions and policies.

The organizational structure of the Anglican Church in North America is more corporate than it is synodical with the Provincial Council as the board of directors, the Archbishop as the president of the corporation and the chairman of the board, and the Provincial Assembly as the stockholders’ meeting. As North American Anglicans are aware from the corporate scandals of the past few years, stockholders’ meetings have little if any control over the board of directors of a corporation.

5. The language of Article VIII, Section 1 leaves open the question whether the clusters, dioceses, and networks forming the new province actually retain any residual authority.

Article VIII, Section 2 could have been more precisely worded.

6. Article X, Section 5 gives the College of Bishops authority to not only to confirm the election of the bishop of a cluster, diocese, or network but also to appoint a bishop of a cluster, diocese, or network from a list of nominees proposed by that body. The latter is a practice seen in a number of constitutions of the African provinces or dioceses. However, it is foreign to North American Anglicans who are accustomed to the practice of the diocesan convention or council electing the bishop of the diocese and the bishops of the province confirming the election. It does not fit with the character of North American Anglicanism.

Canon 4 with its requirement that the first bishop of a new cluster, diocese, or network must be appointed by the College of Bishops is particularly objectionable and points to another defect of the provisional constitution: it gives only an appearance of respecting the autonomy of the clusters, dioceses, and networks forming the new province.

The constitution of the Anglican Church of Australia guarantees the right of a diocese to elect its own bishop. This includes newly formed dioceses. The constitution of the Anglican Church of the Province of the Southern Cone of America provides for the authorization of the election of the bishop of a newly formed self-governing diocese by the Provincial Executive Council upon the formation of that diocese. It also provides for the election of a bishop of a diocese by the Provincial Executive Council and the bishops of the Province only if the diocesan synod fails to elect a new bishop after repeated attempts and the see is vacant for at least two years. The constitution of the Anglican Church of Aotearoa, New Zealand, and Polynesia provides the nomination (election) of the bishop of a diocese by an electoral college consisting of the voting clerical and lay members of the diocesan synod and the sanctioning of the nomination (confirmation of the election) by the General Synod when in session or by its members when not in session. The canons of the Church of Ireland and the Church in Wales make provision for the election of diocesan bishops by an episcopal electoral college. Only if the episcopal electoral college fails to elect a diocesan bishop after repeated attempts, does the election of the bishop pass to the House or Bench of Bishops.

A provision for the election of a bishop of a cluster, diocese, or network to pass to the College of Bishops after the failure of the synod of that body to elect a bishop after repeated attempts is understandable. The provisions of Canon 4 for the College of Bishop’s appointment of the first bishop of a new cluster, diocese, or network, however, raises serious questions. It makes no sense in the light of the fact that College of Bishops must confirm the election of a newly elected bishop of an existing cluster, diocese, or network under the terms of the provisional constitution. It suggests that Article X, Section 5 and Canon 4 were crafted to keep the reins of leadership of the new province firmly in the hands of the leaders of the former Common Cause Partnership and to enable them to select what leaders of newly recognized clusters, dioceses, and networks are admitted to the leadership circle of the province.

The language of Article X, Section 5 is also awkward and the section should be redrafted.

7. Article XII contradicts itself and leaves open the possibility of the seizure of property and other assets from congregations.

8. Article XV, Section 2 contradicts Article VI, Section 2. Article XV, Section 2 requires that the Provincial Assembly ratify constitutional amendments adopted by the Provincial Council while Article VI, Section 2 gives the Provincial Assembly the power to amend the constitution.

9. The ACNA constitution in its present form can be expected to be a source of tension and conflict in the new province for the foreseeable future. One explanation of the flaws of the provisional constitution and canons in circulation is that they were hastily prepared documents and that the individuals and groups involved in their preparation did not closely coordinate their work with each other. This is how a number of North American Anglicans have rationalized the conflicting language and other defects of the documents.

Discussions of the provisional constitution and canons on the Internet reveal that North American Anglicans have been willing to overlook or rationalize the flaws of these documents because they believe that they are what they are purported to be, that is, provisional and that a committee or task force of the Common Cause Leadership Council, now the Provincial Council, is correcting the defects in the documents and preparing a new and improved constitution and canons for the ratification of a “constitutional convention” to be convened by the Provincial Council on August 31, 2009. They also naively believe that the “constitutional convention” will iron out the objectionable provisions of the constitution and canons. This, however, is not going to be the case. The provisional constitution and an expanded set of canons will be presented to the groups attending the “inaugural convention” and these groups will be invited to ratify them. The whole thing is reminiscent of how things are done in The Episcopal Church. The “inaugural convention” is nothing more than a staged media event that will provide the new province with the legitimacy of a formally ratified constitution and canons.

The “inaugural convention” also foreshadows the role of the Provincial Assembly in the new province. Delegates from each cluster, diocese, and network will gather periodically to attend plenary meetings, workshops, and breakout groups and to rubberstamp the enactments of the Provincial Council. The Executive Committee of the Provincial Council will set the agenda for each session of the Provincial Assembly and will closely regulate what is added to the agenda. Provincial Council handlers will ensure that the delegates nominate and elect the right candidates to fill vacancies on the Provincial Council. Only non-Episcopalians who become members of ACNA churches and are elected delegates to the Provincial Assembly are likely to come away from such sessions with the impression that the sessions had been orchestrated. But for Episcopalians the proceedings will be to what they have become accustomed in The Episcopal Church.

One of the realities of life in the new province is that while the form of government has changed, the methods of governance have not. Episcopalians are bringing a lot of the negative practices of The Episcopal Church into the new province with them.

10. A serious weakness of the provisional constitution is that it tries to combine geographic dioceses based upon territory with non-geographic clusters and networks based upon theological affinity. This mixed system can be expected to experience the same kinds of problems as a system in which the judicatories are organized solely on the basis of territory. I recently receive a report of a group of churches attempting to organize a new diocese, in which one affinity group is already trying to dominate the forming diocese. This is something that North American Anglicans should be leaving behind them in the Anglican Church of Canada and The Episcopal Church. But it is bound to happen where the territorial principle is used as the basis for organization of judicatories. Since the leadership of the new province apparently plans to retain this mixed system, we can expect to see power struggles in the new province, as different affinity groups vie for control of a particular patch of turf. We can also expect to see clergy and congregations in serious theological dispute with their bishop and the abuse of episcopal authority. Does this sound familiar?

A more sensible approach to the organization of the new province would be to use the theological affinity principle as the basis for the organization of judicatories. Instead of geographic dioceses and non-geographic clusters and networks the new province would be organized into nongeographic convocations. Each such convocation would consist of a network of churches that stood in the same theological stream—Anglo-Catholic, charismatic evangelical, confessional evangelical, etc.—and which shared the same position on a number of key theological and ecclesiological issues, for example, the number of sacraments, the ordination of women and the role of the laity in the Church. This approach does not do away with organization on the basis of territory altogether but organization on that basis would be secondary. The network of churches that formed the convocation would consist of a number of smaller networks of churches and each such network would be concentrated in a particular region. Each convocation would have a bishop who oversaw the entire convocation and a number of regional or auxiliary bishops who superintended one of these regional clusters of churches. Each convocation would have a convocational synod or governing body and each regional cluster of churches would have a regional synod or governing body. The focus of the regional synod would be carrying out the mission of the Church in the region while the focus of the convocational synod would be the entire convocation. Convocations would be in turn organized into internal provinces that, like the convocations, would be nongeographic and affinity-based. This approach would not eliminate power struggles but it would reduce them. It is the approach embodied in the proposed constitution for the ACNA that I have been circulating. A revised draft of that proposed constitution with a new introduction explaining its features and a commentary on two sections needing further revision may be found on the Internet at:

Among the reasons that I began circulating the proposed constitution was to provide North American Anglicans with an alternative proposal with which they could compare the provisional constitution in what I thought was going to be a period of public comment on the provisional constitution. I had hoped that it would stimulate them to give thought to the different forms of church government described in the two documents and the alternative futures envisioned in these documents. The proposed constitution would create a relatively conflict free environment in which all three different theological streams in North American Anglicanism could flourish, share in determining the new province’s future, and devote their energies and resources to the church’s main task of making disciples. The provisional constitution would establish an oligarchic system in which different groups would jockey to gain ascendancy in the new province and which would be beset by the same ills as The Episcopal Church.

But recent developments suggest that, like the “constitutional convention,” now “inaugural convention,” the invitation of public comment was largely window dressing. The secrecy that preceded the unveiling of the provisional constitution and canons was a sure giveaway that the Common Cause leadership did not really want public comment. Otherwise, they would have invited public comment before the Common Cause Leadership Council meeting in December. This is not a good start for the new province nor does it portend well for its future.

Some may argue that the leaders of Common Cause, now the leaders of the new province, are in a better position to know what is good for the new province. They may have good reason for what they are doing. But isn’t this the kind of thinking that the leaders of The Episcopal Church sought to encourage in the members of that church? Despite all the hype about The Episcopal Church being a church in which you are not asked to leave your brains at the door, Episcopalians are expected not to exercise their own judgment but to let their bishops, clergy and other leaders do their thinking for them. However, we live in a fallen world and leaders are fallen creatures like ourselves. They are not infallible.

11. Another serious weakness of the provisional constitution is that it contains no guarantees or safeguards to prevent the development of conditions in the new province that created the need for a new province. As the provisional constitution is presently written, a determined group could, in a decade or two, come to dominate both the Provincial Council and the Provincial Assembly and gain the ascendancy in the province. For example, a group that supported the ordination of women could impose its agenda upon the province and amend the constitution to permit the consecration of a woman bishop. A cluster, diocese, or network opposed to women’s ordination would not be able to block this development and would have no recourse but withdraw from the province in protest. This would bring us back to where we started.

The proposed constitution that I have been circulating does contain a number of critical guarantees and safeguards. Its detail is itself one of the safeguards. The sections establishing an all-male episcopate and guaranteeing the right of a bishop to refuse to admit women as candidates for holy orders or to license women priests and deacons in his jurisdiction are among the most difficult sections of the proposed constitution to amend. One convocation could block any attempt to amend these sections. At the same time the proposed constitution does not prevent convocations that have no objections to women’s ordination from ordaining women deacons and presbyters and licensing them.

The proposed constitution also delineates the procedure for the preferment, trial, suspension, and removal of a bishop, an important safeguard that is omitted from the provisional constitution. This omission is surprising in the light of the shabby treatment of a number of ACNA bishops by the Presiding Bishop of The Episcopal Church and their former colleagues in The Episcopal Church and the Presiding Bishop’s misuse of the constitution and canons of that church body.

North American Anglicans need to critically examine the constitution and canons that the leadership of the new province has come up with and weigh how these documents are going to affect them. They need to take a close look at the vision of the new province’s future articulated in the constitution and canons. They, after all, are also stakeholders in the new province. The future of the Anglican Church in North America envisioned in these documents must be one that they can willingly embrace.

Sadly, I fear, North American Anglicans are so caught up in the excitement of launching a new province that they are not doing what they need to do. One morning they are going suddenly awaken to the realities of life in the new province and may not particularly like what these realities entail. By then they may have only one way left to them to express their disappointment in the direction that the new province has taken--by leaving the ACNA for other church bodies or stop going to church altogether, as has happened in The Episcopal Church. They will have come full circle.

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