Constitutionalism and the Rule of Law in the ACNA

By Robin G, Jordan

In my accompanying article, “Authority, Mission, and the Anglican Church in North America – Part V: Ecclesiology” I draw attention to the breakdown of constitutional church government in both the Anglican Church in North America and The Episcopal Church and the growing disregard for constitutionalism and the rule of law. In this article I take a look at the concepts of constitutionalism and the rule of law and their application in ecclesiastical organizations. Constitutionalism and the rule of law are two very important parts of the North American Anglican heritage that are threatened in both these churches.

Presiding Bishop Katherine Jefferts Schori’s infringement upon the constitution and canons of The Episcopal Church is a major cause of concern for conservative Anglicans both in and outside of TEC. The erosion of constitutionalism and the rule of law in the Anglican Church in North America receive much less attention. Some of ACNA clergy and members appear to share their top leaders’ impatience with constitutionalism and the rule of law. Others seem to be oblivious to this development. They naively assume that since the ACNA has a written constitution and canons, their top leaders are adherents of constitutionalism and the rule of law. A third group displays a tendency to rationalize or explain away their own top leaders’ infringements upon the ACNA’s constitution and canons. They typical argue that the ACNA is a new organization and critics of their top leaders’ attitudes and behavior should “cut them some slack.” They fail to recognize that tolerance of such infringements set dangerous precedents, as do the infringements themselves. If the ACNA travels down this road at this early stage in its existence, it is going to be very difficult to retrace its footsteps and take a different path. Only a few ACNA clergy and members are at the present time deeply troubled by this development. With this in mind let us look at the concepts of constitutionalism and the rule of law and their application to ecclesiastical organizations.

Constitutionalism refers to a government in which power is distributed and limited by a system of laws that both those who govern and those who are governed must obey. It also refers the forms, principles and procedures of limited government and a person’s disposition or mental attitude toward such forms, principles and procedures. The latter may take the form of adherence or advocacy. A commitment to constitutionalism is essential for a constitutional system of government to work.

The problem to which constitutionalism speaks is “how to establish government with sufficient power to realize a community's shared purposes, yet so structured and controlled that oppression will be prevented.” [1]This is a problem that never goes away. It besets Christians and non-Christians alike. As Article IX reminds us, “man is far gone from original righteousness, and of his own nature inclined to evil…and this infection of nature doth remain…in them that are regenerate.” [2] Similarly Article XVI tells us, “After we have received the Holy Ghost, we may depart from grace given and fall into sin, and by the grace of God we may arise again, and amend our lives.” [3] Article XXI makes the point that “all be not governed with the Spirit and the Word of God,” [4] and likewise Article XXVI “in the invisible Church the evil be ever mingled with the good, and sometimes the evil have chief authority in the Ministration of the Word and Sacraments….” [5]

Oppression is definable as the act of governing tyrannically or exercising harsh dominion (i.e., sovereignty, lordship, or domination) over others. [6] The history of the Church is filled with those who were heedless of our Lord’s words:

But Jesus called them to Himself and said to them, "You know that those who are considered rulers over the Gentiles lord it over them, and their great ones exercise authority over them. Yet it shall not be so among you; but whoever desires to become great among you shall be your servant. And whoever of you desires to be first shall be slave of all. For even the Son of Man did not come to be served, but to serve, and to give His life a ransom for many." (Mark 10:42-45 NKJV)

They did not take to heart the words of the apostle Peter:

Shepherd the flock of God which is among you, serving as overseers, not by compulsion but willingly, not for dishonest gain but eagerly; nor as being lords over those entrusted to you, but being examples to the flock; and when the Chief Shepherd appears, you will receive the crown of glory that does not fade away. (1 Peter 5:2-4 NKJV)

The words of the Anglican Ordinal did not give them pause:

…Be to the flock of Christ a shepherd, not a wolf; feed them, devour them not…Be so merciful, that you be not too remiss; so minister discipline, that you forget not mercy: that when the chief Shepherd shall appear you may receive the never-fading crown of glory…. [7]

One approach to the problem of government is through the ordering of institutions, creating a mixed regime in which properly balanced institutions are juxtaposed. In the Anglican Church the balancing of bishops and archbishops by conferences, synods, and tribunals of clergy and laity illustrates this way of limiting government. A second approach to this problem is through the rule of law. In the Anglican Church an example of this approach is the subjecting of episcopal authority to constitutional and canonical limits. In its constitution and canons the fledgling Protestant Episcopal Church in the USA employed both approaches [8].

The constitution of an ecclesiastical organization generally provides an authoritative written text that prescribes the structure, principles, and limits of the government of the ecclesiastical organization. It is binding upon the members of the ecclesiastical organization to the extent that they recognize it to be binding. It may include mechanisms for enforcing its provisions and for punishing those who violate them. Sanctions may range censure to suspension from the privileges of membership or ministry in the organization or from a position of leadership to the loss of ministry privileges, leadership position, or membership privileges. It may, under the provisions of the laws of the state under which the ecclesiastical organization was incorporated possess legal force.

The text of the constitution is normative. It stipulates how the government of the church is to be organized, the ends it may purse, and the means that it may employ in pursuit of these ends. It is superior to the bylaws, canons, ordinances, or regulations that provide the more specific details where the constitution provides only general details. They are subject to its provisions. While they may elaborate upon what it says, working out its provisions in more detail, they cannot add to what it says. Those compiling bylaws, canons, etc. are apt to loose sight of this important distinction. In a number of places in the ACNA canons the Governance Task Force and the Provincial Council have instead of elaborating upon what the constitution says added to what it says, adding provisions that should have been incorporated into the constitution as amendments. They have in effect changed the constitution by canon albeit the constitution makes no provision for its amendment in this manner.

A part of the problem is the ACNA constitution is neither fish nor fowl. Constitutions fall into three categories. One type of constitutions is very general like that of the Anglican Church of the Province of the Southern Cone of America. Both the details of primary importance and the subsidiary details are left to the canons. A second type of constitution like that of the Church of Nigeria (Anglican Communion) contains the details of primary importance; the subsidiary details are left to the canons. A third type of constitution like that of the Anglican Church of Australia includes both details of primary importance and subsidiary details with additional subsidiary details left to the canons. The Governance Task Force and the Provincial Council have treated the ACNA constitution as if is in the first category when it is actually in the second category.

A constitution confers power. It is, however, not the equivalent of a mandate to legislate or govern. This is an important distinction. In an ecclesiastical organization the governing body and those in positions of leadership derive their power and authority from the constitution. If they overleap the bounds of the constitution, they destroy the foundation of their power and authority. [9] Those in positions of leadership cannot appeal to custom or tradition as the source of their power and authority or to power and authority supposedly inherent in a particular office unless the constitution itself recognizes such custom or tradition or such inherent power and authority.

In the early years of written constitutions their legal superiority to legislative enactments and other sources of law was more theoretical than actual. The underlying cause was that “state legislatures framed the documents and often exercised power despite their provisions.” [10] This points to a dynamic that helps to explain the attitude of top ACNA leaders to the ACNA constitution and even the ACNA canons. They largely comprised the Governance Task Force that drew up the two documents. They also comprised the provisional Provincial Council that adopted them. We will take a look at this dynamic later in this article.

Constitutions commanded greater respect and assumed greater authority when popularly elected conventions wrote them and the people ratified them. The Massachusetts constitution of 1780 and New Hampshire constitution of 1784 are early examples of constitutions that were modeled in this way. [11] Constitutions written and ratified in this manner were not only seen as a compact between the people to govern themselves in a particular way but also as a solemn covenant by which they bound themselves to this end. Such constitutions showed the influence of not only the Magna Carter but also the National Covenant of 1638 and the Solemn League and Covenant of 1643 and the covenants of the Congregationalist churches of Massachusetts, by which the members of a particular congregation bound themselves to walk together as a Church of Jesus Christ. The framers of the federal Constitution in employing the device of the constitutional convention established as a norm for modern constitutionalism. [12] The founders of the Protestant Episcopal Church in the USA also employed this device in framing its constitution.

In compiling a provisional constitution and then a proposed constitution for the ACNA, the Leadership Council of the Common Cause Partnership did not take this approach. Rather they turned over the task of drawing up these documents to a committee made up of members of the Leadership Council and others. The Leadership Council adopted this approach in part because a number of prominent CCP leaders, including CCP Moderator, Bishop of Pittsburgh Robert Duncan, were adverse to the involvement of a large number of people in the framing of the ACNA constitution. Then Archbishop-elect Duncan would, at the inaugural meeting of the ACNA Provincial Assembly, express the thinking of these leaders. The delegates to the Provincial Assembly would not be given an opportunity to make changes into the provisions of the two documents. They could adopt the provisions as they stood with any amendments proposed by the Governance Task Force and the Provincial Council or they could reject the provisions and return them to the Governance Task Force and the Provincial Council. In his address to the Provincial Assembly then Archbishop-elect compared the deliberative process to “the ways of Egypt,” the ways of bondage and slavery, and characterized anyone who had objections to their defects and shortcomings as “minoring in the minors” instead of “majoring in the majors,” focusing upon the mission of the church. [13] It was clear to the astute observer that Duncan was trying to keep who had serious concerns and reservations about the provisions of the two documents from voicing their objections by shaming them into silence. It was also quite evident that he was trying to control what went into the ACNA constitution and canons. In the same address Duncan revealed his impatience with the synodical form of church government and his own preference for a more authoritarian form of ecclesiastical governance.

In an earlier statement in support of the proposed constitution and canons Anglican Mission Bishop John Rodgers had expressed similar impatience with how deliberative church assemblies conducted their business, in particular the length of time they took in weighing the merits of various courses, and how undesirable proposals might find their way to the floor and be adopted and desirable proposals might be watered down and even killed. He took the position the purported “new ways” of the proposed constitution and canons bore “a note of fresh air, wisdom and promise.” [14] He failed to note that what he claimed were “new ways,” while they might not have been previously known to North American Anglicans, were far from being recent innovations. They had a long history and suffered from their own particular set of problems as well as were susceptible to problems that beset more familiar patterns.

Archbishop Duncan has voiced the opinion that when faced with a crisis, a church must regress, or go backwards, returning to earlier and more authoritarian forms, principles, and processes. This appears to include a reversion to the days of the unfettered authority of the medieval archbishop and bishop who held sway over his province or diocese as the feudal lord that he was. Such thinking represents a serious threat to constitutionalism and the rule of law.

Constitutionalism requires the impartial maintenance of the primary rules for the conduct of government against such demands as strong enthusiasm for a particular cause, the interests and ambitions of a particular individual, group, or party, and the tenets of a particular ideology. [15] While the ACNA canons establish a process for the judicial review of conflicting or questionable interpretations of the constitution and canons, they largely leave the application and interpretation of the provision of the constitution and canons to those whose duties and responsibilities and the performance thereof are regulated and defined by these two documents. A challenge facing the ACNA is similar to that facing the United States in the twenty-first century: Does the constitution and canons control the “government” of the ACNA, or does the “government” of the ACNA control the constitution and canons? [16]

Essential to modern constitutionalism is “the doctrine of limited government under a written fundamental law.” [17] In the ACNA we see this conception of constitutionalism under attack. Top ACNA leaders, represented by the Provincial Council, the Executive Committee, and the Archbishop are taking upon themselves power and authority that the constitution or the canons do not confer upon them. A case in point is the recent appointment of Bishop Don Harvey as the Dean of the Province. Top ACNA leaders are essentially treating the constitution and canons as a mandate or commission to govern the ACNA as they see fit, to do whatever is right in their own eyes. They are inferring from the Provincial Assembly’s ratification of the constitution and canons that they are free to take such actions as Bishop Harvey’s appointment as dean. But if we look back to the inaugural meeting of the Provincial Assembly its ratification of the ACNA’s instruments of governs, its constitution and canons, was a carefully orchestrated process. Archbishop-elect Duncan determined how business was to be conducted at the inaugural meeting. The Provincial Assembly was given a day in which they could consider the provisions of the two documents and accept or reject them. While the delegates were permitted to draw the attention of the Provincial Assembly to problematic provisions of the two documents, they were not allowed to make changes in them. The work of the Provincial Assembly was frequently interrupted by greetings from dignitaries and video presentations. Archbishop-elect Duncan told the delegates that they needed to complete their work before the end of the day because a number of speakers were waiting to address them. Hearing these speakers was presented as more important than the business at hand. As previously noted, the Archbishop-elect in his address to the Provincial Assembly sought to encourage the swift ratification of the two documents and to discourage protracted debate of the defects and shortcomings of the two documents.

Constitutionalism goes hand in hand with the rule of law. As we have seen, the rule of law is one approach to the problem of government. The rule of the law is an ancient concept. The ancient Greek philosopher Plato endorsed the rule of law:

Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state. [18]

His contemporary Aristotle shared the same opinion of the rule of law:

…it is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws. [19]

The rule of law should be distinguished from rule by law. Under the rule of law the law is preeminent and can serve as check against the abuse of power. Under rule by law, the law can serve as a mere tool for a government that uses it to suppress in a legalistic fashion. [20]

In the Old Testament obedience to God is equated with obedience to the commandments and the laws that God has given to the people of Israel. These commandments and laws are not only binding upon the people themselves but also their judges and, from the days of Saul on, their kings. The reign of Israel’s kings, then Israel and Judah’s kings, and later Judah’s kings is judged in terms of their obedience to God and his commandments and laws.

An allusion to the rule of law applying to the kingdom of the Medes and Persians is found in the Book of Daniel, in which it is stated that not even that king can arbitrarily alter a law he has previously enacted:

The thing stands fast, according to the law of the Medes and Persians, which cannot be revoked. (Daniel 6:12) [21]

In 1215 AD King John placed himself and later England’s future monarchs and magistrates partially within the rule of law when he signed the Magna Carter. [22]

In 1776 the notion that no one is above the law was popular during the founding of the United States. Thomas Paine wrote in his pamphlet Common Sense "that in America, the law is king. For as in absolute governments the King is law, so in free countries the law ought to be king; and there ought to be no other. [23]This notion was incorporated into the constitution of the fledgling Protestant Episcopal Church in the USA. No one in the church would be above the constitution and canons, not even the bishops of the Church. This represented not only a rejection of the authoritarian bishop of Stuart period but also the prelatical episcopacy that Bishop Samuel Seabury favored.

The “rule of law” can be contrasted with the “rule of men.” An organization in which the leaders have a great deal of discretion has a low degree of "rule of law", whereas an organization in which the leaders have little discretion has a high degree of "rule of law." The rule of law is thus somewhat at odds with flexibility, even when flexibility may be preferable. [24]

The low regard for the rule of law evidenced in certain quarters of TEC and the ACNA can be attributed in part to of modern theories of church leadership and management. One contemporary approach to structuring a new church is to have the planter-pastor lead the church and a group of other pastor-elders to lead the church alongside the church. In the early stages a new church may have only a few pastor-elders, with a steering committee or a leadership advisory team to help provide direction. When the new church constitutes, some or all of the members of this earlier steering or leadership advisory team may become pastor elders. There is an understanding that pastors are elders. While one of the pastor-elders may be a vocational pastor, the other pastor-elders may be lay pastors. As the congregation grows, the church may eventually call all of these pastor-elders as church-staff or add other pastor-elders. In this approach congregations entrust most decisions to pastor-elders, allowing them to direct the affairs of the church and eliminating the need for seemingly endless business meetings. [25] This structure is biblical and can be very effective. Problems arise, however, when people develop mistaken notions in respect to how this model works. This approach is collegial and cooperative, not hierarchical and directive. The lead pastor-elder is the first among equals. While the pastor-elders have a measure of discretion, they are expected to operate within whatever rules in the form of a constitution and by-laws that the church adopts.

This low regard for the rule of law is also attributable to old-fashioned notions of prelacy. The model that has most influenced the understanding of the episcopate in both churches is not the “catholic” bishop of the primitive church but the post-Constantine prelate whose ministry is modeled upon the office of the Roman provincial or district governor. The latter were subject to Roman law and responsible to the emperor in Rome or Byzantinium. In the Middle Ages the post-Constantine prelate became a law unto himself, administering his province or diocese as he saw fit while owing fealty to his liege the Pope to whom he was bound to give service and allegiance as the vicegerent of Christ. In this understanding of the episcopate the primary role of the bishop is to be a minister of governance and administrator of discipline, not the pastor-teacher of the Anglican Ordinal. Both David Holloway and Michael Burkill identify this understanding of the episcopate as highly problematic.[26]

We see in the upper levels of both TEC and the ACNA hierarchies a cynical tendency to view the provisions of church constitutions and canons as an obstacle to aspirations and therefore to be ignored or a means to an ends and therefore to be exploited. We also see a propensity toward ecclesiastical authoritarianism that favors the concentration and consolidation of power in the hands of an elite that is not constitutionally responsible to the general membership of the church, as well as favors blind submission to authority, often expressed in terms of trusting the judgment of church leaders and not questioning their motives, etc. These factors appear to be a part of a larger shift away from the rule of law to the rule of men that is influencing our culture. It is often said that TEC is indistinguishable from our culture. The ACNA is also very much a creature of our culture.

There are indications of a correlation between the low regard for the rule of law and the erosion of the authority of the Bible both in TEC and the ACNA. The attitude that top ACNA leaders betrays toward the constitutions and canons is that since they wrote the rules, they are above the rules and they are not bound to obey them. They may interpret the rules as they see fit and even may overrule them if circumstances warrant it.

This attitude is akin to the attitude that Bishop Charles Benison manifested toward the Bible. The Church was, in his view, above the Bible. The Church wrote the Bible and therefore could rewrite the Bible. A substantial number of the top leaders of the ACNA are themselves former Episcopalians. Their attitudes were formed in the same environment that formed the attitudes of Benison, Schori, and their ilk. While they may have retained conservative beliefs and values, this fact does not mean that they are completely free of the influence of that environment.

This attitude is also similar to the state legislatures that ignored the provisions of the constitutions that they themselves had adopted when it suited them. This points to a more universal phenomenon—a tendency of those who make laws to regard themselves as not bound to keep the laws they have made. Recognition of this phenomenon explains the prohibition against the king of the Persians and the Medes revoking a law that he had made. He was bound to keep it.

In any case this attitude is unbecoming in a minister of the gospel even more than it is in a layperson albeit it is unacceptable in a layperson. Ministers of the gospel are expected to be “wholesome example and patterns to the flock of Christ.” [27] A minister of the gospel who serves as an “elder-overseer” is supposed to “blameless” and “of good behavior;” “he must have a good testimony among those who are outside, lest he fall into reproach and the snare of the devil.” (1 Tim 3:2;7 NKJV)

A number of common misperceptions of the more authoritarian African provinces appear to have contributed in a roundabout way to this low regard for the rule of law. Top ACNA leaders have promoted their interpretation of how these provinces operate as a model for the North American Church. The Governance Task Force and the Provincial Council has incorporated features of the African churches into the ACNA constitution and canons but without any of the checks and balances and safeguards found in the constitutions and canons of the African provinces. Top ACNA leaders may be exploiting these misperceptions to justify not giving the deference to the provisions of the constitutions and canons that they ought to be given. They see themselves and even present themselves as emulating the Africans.

The New Testament takes a dim view of lawlessness. From Matthew 13:41 we learn that “the Son of Man will send out his angels and they will gather out of his kingdom all things that offend, and those who practice lawlessness.” Our Lord drew to the attention of the Pharisees that, while they outwardly appeared righteous to men, they were “full of hypocrisy and lawlessness” (Matthew 23:24). He also warned the disciples that “because lawlessness will abound, the love of many would grow cold” (Matthew 24:12). The apostle Paul urged the members of the church at Rome to present their members as “slaves to righteousness for holiness,” as they had presented their members as “slaves of uncleanliness and lawlessness” that led to more lawlessness (Romans 6:19). In his second letter to the Corinthian church, he asks “what fellowship has righteousness with lawlessness?” “What communion has light with darkness?” (2 Corinthians 6:14) The author of the letter to the Hebrews calls to the attention of those to whom he is writing, that to the Son God says, “You have loved righteousness and hated lawlessness; therefore God, Your God, has anointed you with the oil of gladness more than your companions,” (Hebrews 1:9 NKJV) paraphrasing Psalm 45:7. In the latter “wickedness” is used in place of “lawlessness.” The apostle John in his first letter pointedly writes, “Whoever commits sin commits lawlessness, and sin is lawlessness” (1 John 3:4 NKJV).

Without a high regard for constitutionalism and the rule of law the Anglican Church in North America cannot hope to escape what has happened in The Episcopal Church. Indeed it already has the seeds of those tendencies that have created the present situation in TEC. All they require is the passage of time and the right conditions to germinate and grow. If the top ACNA leaders cannot respect the rules that they themselves have enacted, they are not going to regard with deference the teaching of the Scriptures. Even now they have succumbed to lawlessness. The top ACNA leaders may view themselves as anointed by God. They may be puffed up like the Corinthian pneumatics. However, lawlessness does not come from God. The spirit of God is not the spirit of lawlessness.

Endnotes:
[1] Kermit L. Hall, “Constitutionalism,” The Oxford Companion to the Supreme Court of the United States, 2005, an article on the Internet at: http://www.encyclopedia.com/doc/1O184-Constitutionalism.html
[2] “Articles Agreed upon by the Archbishops and Bishops of Both Provinces and the Whole Clergy in the Convocation Holden at London in the Year 1562 for the Avoiding of Diversities of Opinions, and for Establishing Consent touching True Religion,” The Book of Common Prayer and Administration of Sacraments and Other Rites and Ceremonies of the Church according to the Use of the Church of England together with the Psalter or Psalms of David Pointed as They Are to Be Sung or Said in Churches and the Form and Manner of Making, Ordaining, and Consecrating of Bishops Priests, and Deacons, (Oxford: Oxford University Press, 1987), 696.
[3] Ibid., 699.
[4] Ibid., 702.
[5] Ibid., 704.
[6] H. W. Fowler and H. G. Le Mesurier, eds, The Pocket Oxford Dictionary of Current English, (Oxford: Clarendon Press, 1934), 553.
[7] “The Form of Ordaining or Consecrating of an Archbishop or Bishop,” The Book of Common Prayer, 675.
[8] Hall, “Constitutionalism,” The Oxford Companion to the Supreme Court of the United States
[9] Ibid.
[10] Ibid.
[11] Ibid.
[12] Ibid.
[13] Robert Duncan, “Opening Address to Provincial Assembly," an address on the Internet at: http://www.acnaassembly.org/index2.php/acna/page/83
[14] John Rodgers, “The ACNA Constitution – An Evangelical View,” an essay originally posted on the Common Cause Partnership web site but no longer accessible on the Internet
[15] Hall, “Constitutionalism,” The Oxford Companion to the Supreme Court of the United States
[16] Ibid.
[17] Ibid.
[18]”Rule of Law,” Wikipedia, an article on the Internet at: http://en.wikipedia.org/wiki/Rule_of_law[19] Ibid.
[20] Ibid.
[21] Ibid.
[22] Ibid.
[23] Ibid.
[24] Ibid.
[25] Ed Stetzer, Planting Missional Churches, (Nashville, Tennessee: Broadman & Holman Publishers, 2006), 89-96.
[26] See David Holloway’s “The Reform of the Episcopate and Alternative Episcopal Oversight,” a Reform discussion paper on the Internet at: http://www.reform.org.uk/pages/bb/reformepiscopate.php and Michael Burkill’s “Better Bishops,” a Reform discussion paper on the Internet at: http://www.reform.org.uk/pages/bb/betterbishops.php
[27] “The Form and Manner of Ordering of Priests,” The Book of Common Prayer, 656-657