By Robin G. Jordan
In the weeks leading up to the Common Cause Partnership 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. Later I would learn that the period of public comment had been shortened to six months, and a “constitutional convention” at which a revised constitution and canons would be presented for ratification of a larger assembly would be held in Bedford Texas on August 31, 2009. More recently I have learned that the constitution that will be presented to that assembly will be the provisional constitution as it is presently drafted. 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 judicatory (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 to 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 judicatory from the Province.
In the more common forms of synodical government of 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 internal provinces and dioceses to the Province and suspend or expel them.
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.
A growing number of North American Anglicans are uncomfortable 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.
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 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 judicatories 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 judicatory but also to appoint a bishop of a judicatory by the College of Bishops from a list of nominees proposed by judicatory. 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 synod of the judicatory electing the bishop of the judicatory 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 judicatory must be appointed by the College of Bishops is particularly objectionable and runs counter to the tenor of Article IV, Section 7. The provisions of this canon points to another defect of the provisional constitution: it gives only an appearance of respecting the autonomy of the judicatory.
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 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 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.
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 constitution, as it is presently drafted, 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 been trying to rationalize 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 provisional 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 provisional Provincial Council on 31 August 2009. They have also naively believed that the “constitutional convention” would iron out the objectionable provisions of the constitution and canons. Now we are being told that the “constitutional convention” will be an inaugural convention and not a real constitutional convention.
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 judicatory based on territory, 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 provisional constitution, soon to be constitution, of the ACNA retains 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.
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 that I have been circulating.
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 drafted, 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. 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 judicatory 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 judicatory could block any attempt to amend these sections.
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 comes 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.
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