Thursday, March 06, 2008

Martins on Schori's Actions in the DSJ

Although Dan Martins has repeatedly made alot of noise about the PB's efforts in the DSJ, the issue of whether the PB is permitted canonically to do what she is doing in the DSJ should be settled, in my view, by Canon I.2.4:

The Presiding Bishop shall be the Chief Pastor and Primate
of the Church, and shall:
(1) Be charged with responsibility for leadership in initiating
and developing the policy and strategy in the Church
and
speaking for the Church as to the policies, strategies and
programs authorized by the General Convention;....
(3) In the event of an Episcopal vacancy within a Diocese,
consult with the Ecclesiastical Authority to ensure that
adequate interim Episcopal Services are provided
;


Part of being a Chief Primate for the DSJ is having a power to initiate and develop policy. In cases of pressing need beyond precedent, as exists in the DSJ, doesn't it seem that such a power would be operative, if anywhere? It seems like common sense to me; this is exactly what she is doing in the DSJ: initiating and developing policy.

Moreover, (3) above charges here with a duty--properly exercised only in council--to ensure adequate interim episcopal services. Such actions are not merely supererogatory. And that is exactly what she is doing, carring out her canonical duties to ensure adequate interim episcopal care.

But what seems obvious to me is not obvious to Martins. Perhaps he has some reading of the canons where black is white and white black, and the PB is not permitted by the canon I cite to do what she has done. Would General Convention then have the requisite authority for Martins? It seems to me--though I may be mistaken, of course--that

(1) the General Convention is the highest administrative authority in the Episcopal Church.

The GC makes the rules, etc within which the rest of TEC is bound to proceed. But as the GC only meets at long intervals, it is necessary that authority in the interim be delegated. It should come as no surprise that, reading I.IV.4, sections 1a & 2e,

(2) the Executive Council may act on behalf of the General Convention,

and presumably the GC can both bind and overturn decisions of the EC, or they may choose not to, and by their silence validate the EC's actions--see section 1b. The EC of the GC may have need for someone like the PB to do the same kind of thing the EC does for the GC. After all, the PB is a member of the EC by section 1c. Sometimes action must be taken which the EC is not in a position to implement for practical reasons: meeting at intervals or the need for a member of the EC to take the lead in delineating a policy. Thus, it should come as no surprise that

(3) the Presiding Bishop may act on behalf of the Executive Council,

and presumably the GC and EC could both bind and overturn the decisions of the PB, or they may choose not to do so, and by silence validate the PB's actions. That the EC may so delegate its power seems implied by the canonical provision in 2e that it

may initiate and develop such new work as it may deem necessary.

and more importantly by I.IV.4.3a & f, which hold the PB is President, Chair, and CEO of the EC, permitted to implement its work. That is not to deny other parts of TEC, like the HoB, may similarly delegate authority to the PB. Thus, I take it that

(4) the Presiding Bishop may act on occasion with the highest administrative authority in the Episcopal Church,

inasmuch as that authority is delegated transitively to the PB. That is, on occasion the PB may act to do what you would expect the GC to be able to do, because that authority is delegated to the PB. And in addition, I mean to say not only that (1)-(4) are just what sound common sense would expect, but that they are also consistent with the constitution and canons of the Episcopal Church.

It is important to see that (4) does not imply the PB may act as a sovereign authority, above the canons and constitution, unaccountable to anyone in TEC. To the contrary, I hope that the way I have argued for (4) shows the power referred to in (4) is conditional and circumscribed. Inasmuch as it is strictly a delegated potency, lines of accountability are clear: the PB answers to the EC and to the GC. Moreover, the authority referred to in (4) is operative only in the absence of a potentiality--in practical terms--for the exercise of authority by the EC and GC. In that sense, the power of the PB is conditional.

All of this would seem to come as a surprise to Dan Martins, who writes

Anyone who is complicit in the election of a new Standing Committee at the special convention is acting in defiance of the Constitution and Canons, and is appropriately subject to ecclesiastical discipline.

Well, he's entitled to his opinion. Evidently, he seems to believe or at least be committed to

(5) the Presiding Bishop is forbidden from acting on any occasion with the highest authority in the Episcopal Church,

perhaps because he also holds or is committed to

(6) the power of the EC of GC cannot on any occasion be delgated to the PB without some express designation,

like a GC or EC resolution explicitly to that effect. I do not think he, or anyone else in the DSJ, has managed to argue soundly for (5) or (6).

Indeed, ironically enough, the power Martins arrogates to the SC of the DSJ only exists in the absence of the DSJ's bishop on condition the GC permits; see the Constitution, Article IV:

When there is a Bishop in charge of the
Diocese, the Standing Committee shall be the Bishop's Council of
Advice. If there be no Bishop or Bishop Coadjutor or Suffragan
Bishop canonically authorized to act, the Standing Committee shall be
the Ecclesiastical Authority of the Diocese for all purposes declared
by the General Convention.


The power of the SC of the DSJ in the absence of a bishop is not absolute; it is rather conditional. If the authority of the GC may be delegated to the PB, then of course the PB may do exactly what she has in fact done--notify the SC that its authority is suspended. There is a case to be made that--contrary to Martins--the PB has precisely this power according to the Constitution itself.

I hope to have shown the rather ill-tempered comment by Martins that the PB's effort in the DSJ

represents the raw exercise of naked illicit power by the Presiding Bishop

is not adequately grounded in reality. Is it really raw and naked when a case can be made for it directly from the Constitution and Canons? Why the nasty hyperbole? We have yet to see a decent argument that it is in fact illicit, and it seems given his penchant for strife, we are owed at least that.



P.S.
My apologies: I actually like theorizing over law; maybe there's a calling. Who knows? Anyhow, here are a couple more speculative arguments: enjoy.

According to the Constitution in Article V, section 1 the GC is the agent behind the formation of a new diocese. The DSJ is not a new diocese being formed, but an old diocese whose normal administrative apparatus is being reconstituted. The authority to form a new diocese is greater; it follows that GC would have the lesser power to reconsititute if need be. of course, this is already implicit in my Proposition (1) above; these comments serve so far only to confirm (1) supra. As that authority, normally residing in the GC, may be delegated to the PB in virtue of the power inherent in her office, it follows the PB may do what she is doing by the authority of TEC's Constitution, contrary to Martins.

Note at any rate, Article V, section 3 of the Constitution gives a new diocese the power to designate its own bishop, should bishops from dioceses from which it was formed prescind from occupying that office. Normally that power would most likely be overseen in its exercise by the Standing Committee. At any rate, a power to designate a bishop is not alien to the diocese; this section may provide a relevant precedent for action in unusual circumstances, even though the DSJ is not new; it is, of course, an old diocese in an unusual--even unprecedented--situation. That is, given it seems that the Standing Committee of the DSJ is unable to perform, the current PB may simply be acting on behalf of the GC to recognize, and thereby validate, an exercise of power--permitted in the Constitution--by the DSJ on its own behalf. While the SC might be the normal conduit for the flow of this power, it is by no means necessary for the flow of that power, as the power is inherent in the diocese itself. That exercise would be permitted, based on a power inherent in the diocese, referred to in this section--again, contrary to Martins.

9 Comments:

At 1:59 PM, Blogger Beryl Simkins said...

Of course I love your well thought out statements. However, I have to acknowledge I am a lay resident in the Episcopal Diocese of San Joaquin who is looking forward to the establishment of Ecclesiastical structure and authority so needed in our diocese.


When I visit the site of Dan Martins, I find that I get very angry with him, a priest who moved out and left the diocese, and yet, continues to undermine all efforts to continue an Episcopal Diocese here. I wrote back angrily to his last article and find that I am now blocked from making comments at his site. This is a new experience for me to be blocked, since I do not call people names or use bad language, and I don't even attack people. But I do disagree.

 
At 5:03 PM, Blogger The Anglican Scotist said...

Welcome; alot of folks are pulling fot the DSJ to come through this. Laity on the outside can pray and write, but it is up to the province/national church acting through the PB to take the lead. It seems like things are looking up, no?

It sounds like Martins is doing the best he can, even though his take on things is exasperating. Anyhow, he has a full plate, and hopefully soon this whole sorry affair will be history.

 
At 6:48 PM, Anonymous JamesW. said...

Anglican Scotist: Bet you aren't a constitutional lawyer, are you?

Your argument boils down to this: the highest officer or legislature in a jurisdiction can, by virtue of being the highest officer or legislature in the land, suspend the constitution of said jurisdiction whenever convenient.

This is not an argument for the rule of law, but for tyranny. Slice it any way you like, but if George W. Bush invoked the same arguments for his own power that you have just done for the PB, you would be crying bloody murder and rightly so.

But what the heck, with the newly appointed retired Bishop Jerry Lamb (in his old diocese between 2002 and 2006, he lost 20% of the membership and 14% of the ASA), I don't hold out much hope for the new TEC Diocese of Remain Episcopal.

BTW, Beryl - blooging software can sometimes be sticky. Sometimes you have to try and retry before a posting makes it at Dan's site. You guys really have to stop demonizing those who you disagree with.

 
At 12:01 PM, Blogger bls said...

"You guys really have to stop demonizing those who you disagree with."

??????

I've heard TEC referred to as a "sodomite cult," "the whore of Babylon," and "worshippers of Baal," merely because we disagree with the so-called "orthodox" about the topic of gay persons in the Church.

And by so-called "Christian leaders," too.

So, please....

 
At 7:27 PM, Blogger Beryl Simkins said...

I wish people would quit referring to me as "you guys." I know my name is unusual, but I am a woman, a mother and a grandmother.

I have to apologize to Dan Martins on this site, too, because he said on his site that he is "not guilty" of blocking my comments and that he does not block any comments. I was not able to comment a few days ago, and I do not know why.

Thank you, Anglican Scotist for the truth and integrity you exhibit in what you print.

 
At 7:44 PM, Anonymous Mary Clara said...

Scotist, thank you for this helpful analysis.

It is remarkable that JDS's supporters, and their counterparts in other dioceses, find it impossible to grasp that the Episcopal Church has deliberately granted its Presiding Bishop these perfectly ordinary and reasonable executive powers, such as would be needed by the chief officer of any comparable national organization -- while at the same time they suppose their own bishops to have very broad authority, including the power to disobey the Church's canons and constitution, and indeed to break the Church apart in defiance of their canonical duty and their vows to uphold it. Truly, it makes my head hurt trying to understand their thinking.

 
At 10:46 AM, Blogger The Anglican Scotist said...

James W,

Your point touches on the main difficulty: every political organization, from a neighborhood club on up to a nation, is marked by the need to recognize a state of exception and a sovereign power permitted to operate in that state.

In no case do laws or rules apply themselves, and no elaboration of law, however exhaustivce, can eliminate the need for some power to execute the rules or laws.

You are right to an extent then: finding passages designating Schori as the executive permitted to operate in situations outside the range of canons is trivial.

The only significant difference between her and Schofield is whereas she is designated by the laws and rules as the person with this power, Schofield is self-designated, in effect usurping a power that the laws and rules would forbid him; so whereas Schori is accountable to the GC, and HoB with definite procedures, it is not clear--even today--whether Schofield is accountable to Venables only or also to the GC and HoB.

In other words, Schofield's situation has no background normalcy against which the exception is contrasted; it is even today an ongoing indeterminacy, like an ongoing state of emergency in spite of Venables' apparent effort to bring a sense of normalcy. Schori's exercise of power, being recognized in the laws and rules, occurs by its nature against a background of normalcy.

 
At 11:05 AM, Anonymous Anonymous said...

Anglican Scotist,

With your penchant for legal reasoning, you might enjoy this account (http://primalscreed.blogspot.com/2005/12/legalism-beyond-bounds-of-reason-upon.html ) of the case of Regina v. Ojibway. It demonstrates a nice technique for not confining results to the plain text of a statute.

ANW

 
At 4:06 PM, Blogger The Anglican Scotist said...

Oh dear: let's keep it civil and prescind so far as possible from mere profanity. After all, the resources of the King's English should more than suffice!

 

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