Following from this first point, it is telling that Dator never addresses, and indeed is probably totally unaware of, decisive facts concerning the legal history of TEC’s governing instruments, including the fact that TEC’s constitution was drafted by sophisticated lawyers who are recognized to this day as the key authors of American jurisprudence on legal hierarchy; that the crucial issue in TEC’s organization was dispensing with the oath of supremacy that was the essential prerequisite to being part of the Church of England””in other words, hierarchy was intentionally removed from TEC’s founding constitution, not inadvertently omitted or implicitly included; and that the largest state church, Virginia, was still under state control when TEC’s polity was first agreed, which shows that Virginia wouldhave been legally prohibited from agreeing to the kind of polity Dator claims to identify.
Notwithstanding these points and considering this dissertation on its own terms, it may come as a surprise to those who have only seen Dator’s conclusions summarized that as he goes through the constitutional features of TEC he generally finds them to be indicative of a federal or confederal structure.
For example:
— Equal representation of all dioceses in the House of Deputies “trends strongly in the direction of a federal, if not confederal, structure” (p. 114); ï‚· Voting by orders in the House of Deputies “does appear federal or confederal” (p. 128);
— Method of selecting bishops “could, by itself, be considered federal or decentralized unitary” (pp. 147-48);
–Territorial integrity of diocesan boundaries “may seem to tend towards either confederalism or federalism,” with each diocese viewed as “sovereign” (p. 148);
–Method of admission of new dioceses “may be seen to be federal or confederal” (p. 224);
–TEC judicial provisions are “more in keeping with a confederal than with either a federal or unitary government, especially since the system is made constitutionally mandatory” (pp. 179-80);
–Adoption of the first constitution: “the evidence up to 1789 shows that the approval of the conventions in the dioceses was obtained in establishing a government,” which he had previously identified as a key criterion or “the very test” of a federal or confederal government (pp. 93, 46);
–Financial and budgetary provisions “causes many to feel that [TEC] is a loosely knitconfederation of independent dioceses”¦the government of the church takes on in practice the character of a confederacy” (p.171);
–When representation and voting in the House of Deputies are considered together “a strong confederal presumption is suggested. Coupled with the vote by orders provision, the suggestion may seem overwhelming” (p.232).
Mr. McCall,
“that the crucial issue in TEC’s organization was dispensing with the oath of supremacy that was the essential prerequisite to being part of the Church of England—in other words, hierarchy was intentionally removed from TEC’s founding constitution, not inadvertently omitted or implicitly included”
This is quite interesting. Do you know if any of the other provinces followed suit in intentionally removing the oath of supremacy either immediately upon founding their constitutions or at some point there after, or was this unique to the Episcopal Church?
Amazing how the ECUSA/TEC/GCC/EO-PAC hangs all on a single doctoral dissertation from the maximal American Imperialist mode, but hey, anything in a pinch when all you have is nothing, I guess.
Besides, a doctoral dissertation is neither canon law nor law nor even a moral force.
Yesterday, I had been confused by the Rev Dator’s dissertation wherein he sees obvious features of federal and confederate governance within TEC’s charter documents, but then goes on to say that this isn’t really the case. He said that it’s really a unitary, hierarchical government with General Convention as the highest authority and a weak Presiding Bishop.
So, this morning I read Mr. McCall’s analysis and discover that my confusion was justified. Dator is looking for individual trees while missing the forest. The legal background and functions of TEC Consitution thwart the very thing TEC is trying to prove: Centralized hierarchy with the Presiding Bishop and Executive Council as strong central authority.
It is a struggle to see how this will stand when Dator himself admits that the Civil Courts must function as the TEC interpreter of all things apart from doctrine. I would hope that McCall’s analysis is heard in courtrooms and chambers around the country.
I would also hope that the delegates to the General Convention this year put a stop to both litigation and the attempt to create a strong centralized executive office without amending the Constitution and Canons appropriately.
MarkS: I am completely confident that all litigation will stop immediately when departing elements cease trying to take things with them. This litigation is a tremendous curse. Not one billable hour of the legions of lawyers’ time would ever have been billed but for this deplorable notion that one is entitled to leave a place and keep it at the same time. Assuming that this is an obvious point, the litigation can cease next week if all these efforts to transfer ownership are abandoned. There would probably be unanimity at the General Convention on this point.