CHAPTER 1

WHAT DIFFERENCEDOES IT MAKE?

Why does it matter whether the structure of the Episcopal Church isfederal, confederal, or unitary? In order to answer this question, itis necessary to show the conflicting nature of the evidence concerning thestructure of the church and the significance of the resulting controversyregarding the church's polity. Contradictory statements about the church'sgovernment abound.

The Controversy

It is possible to extract a considerable number of statements from theliterature about the Episcopal Church to support a federal hypothesis.These quotations fall into three categories. There are statements that simplycall the polity of the church "federal" without further justification. Forexample:

Actually, the Episcopal Church was a federal union of independent diocesanunits and each diocese a federation of independent parishes, ratherthan a single, closely-knit ecclesiastical institution.

Others cite certain selected constitutional features of the church's polity thatthey present as exhibiting the federal nature of the church's government:

Because the government of the Episcopal Church is that of a federatedunion of dioceses, the analogy of the federal government of the UnitedStates in this respect is very striking.

The American Church adapted herself entirely to the body politic of theUnited States. Certain features in her construction are in exact parallel withthe structure of the federation. The parallelism between General Conventionand Congress, Diocesan Convention, and State Legislature, is so evidentas to need no discussion.

The Episcopal Church is organized in a similar way to the United StatesFederal Government. Both received their Constitutions in the same yearand place, and many of the same people participated in both transactions.

Quotations also exist, however, which deny that there is any significantsimilarity between the government of the United States and that of thechurch, as far as their constitutional structure is concerned:

The true analogy therefore, is not to be found between the Church and theFederal Government, but between the Church and its dioceses on the otherhand, and any one State and its several counties on the other hand.

It is nonsense to say that [the Church's] governing power is patterned afterthat of the Republic.

The few resemblances between the Church and the nation sink into insignificance,however, when we compare the differences between them.

Sources can also be found to support the contention that the governmentof the Episcopal Church is confederal:

In the days of White and Seabury it was the prevailing opinion that theChurch was a confederation of independent dioceses, just as the nationwas a confederation of the independent states, and no national executivewas provided for in the Church's Constitution.

The Church of the States collectively—that is, of the nation—has no head,no governing power, no administration, no guide, no leader; but it ismerely a collection of confederated dioceses.

Moreover, there are those sources that state that the General Conventionis supreme, and thus tacitly show that the church is unitary:

The history of the legislation of General Convention since its formationshows that the Convention has again and again taken to itself powers whichonce belonged to the diocese, and in some cases to the individual parish.This fact demonstrates the correctness of the theory, as we have beforestated, upon which the General Convention has ever acted from the beginningof its history: that it has the power to legislate on any subject unlessexpressly forbidden to do so by the Constitution. The GeneralConvention not only makes the Constitution and amends it, but it interpretsthe Constitution. The General Convention limits its own power, andit can remove that limitation. It assumes that all power is in the GeneralConvention which the Constitution itself does not limit. The one conclusionthat follows from these facts is, that the General Convention is the ultimateseat of authority in American Church government.

The General Convention possesses the acknowledged power of supreme legislation,as a corollary of the supreme and sole authority to make, and to alterthe Constitution of the Protestant Episcopal Church in the United States.

I must say that after a careful and anxious scrutiny of the Constitution andCanons of our General Church, the power of the General Conventionseems to be unlimited, while that of the Diocesan Convention is only thatwhich the General Convention is pleased to concede.... That the sovereigntyof the Church is in the General Convention is shown by an almostunbroken current of legislation. It is difficult to see any limit, on the faceof the Constitution, to the powers of the General Convention.

How is it possible to reach such contradictory opinions regarding thestructure of the church's government? There seem to be three main reasons.First, there have been few systematic and comprehensive analyses ofthe governmental structure of the church. Equally important, no writer inhis description of the Episcopal Church's government has stated what hemeant by "federal," "confederal," or "unitary." Thus the structure of thechurch has been described in these terms without their definition. Finally,some of the crucial points concerning the church's constitutional structureare genuinely open to varying interpretations because the facts about themare inconclusive. Whether the persons who wrote the church's Constitutionbetween 1784 and 1789 were delegates of diocesan governments or merelyrepresentatives of the church in the several states has been frequently disputed.In part, this is because the definition of a "diocese" is controvertible.Whether all the framers of the Constitution were delegates of diocesangovernments or not depends upon the observer's analysis of the completenessof diocesan organization at the time, the "spirit of the time," theframers' intention, and the dependence of the church upon bishops.

Indeed, whether or not bishops are essential to the church—whetheror not there can be a true church without bishops, and whether or notgoverning power flows from the bishops downward to the clergy and laity,or upward from the individual churchmen through the various conventions—hasaffected judgments on the question of the church's constitutionalstructure.

Likewise, the almost irresistible temptation to analogize from the AmericanState to the American Episcopal Church, and to transfer feelings about"states' rights" and related questions to the polity of the church, may haveinfluenced some analyses of the church.

The question of the church's structure has generally been connectedwith the problem of whether the General Convention or the dioceses aresupreme. The confederal, federal, or unitary nature of the government hasbeen denied or affirmed in the interest of showing that either the GeneralConvention or the dioceses, constitutionally and/or inherently, possess politicalpowers upon which the other cannot impinge.

The controversy of General Convention versus diocesan conventionsupremacy has not been merely an academic question among church historians.Persons protesting an act proposed or done by General Conventionoften insisted that the act was unconstitutional because theconstitutional structure of the church is federal or confederal, and thepower exercised was one belonging by constitutional right to the dioceses.For example, when the Constitution was amended in 1943 to require allbishops to resign upon reaching age seventy-two, Bishop William Manningof New York protested heatedly:

The rights of a diocese are analogous to those of a sovereign state under ourAmerican Constitution, and by this legislation, for the first time in anybranch of the Catholic Church, the rights of the diocese are encroachedupon by the General Church.

One of the most strongly political statements cited above was that made bya committee on "Diocesan Autonomy and Federal Relations" of the 1877Council (Convention) of the Protestant Episcopal Church in the Dioceseof Virginia. This report strongly insisted that the Diocese of Virginia hadthe legal right to secede from the American Episcopal Church for theologicalreasons, if necessary, although it did not recommend secession itself.Hill Burgwin illustrated the seriousness of the controversy in thisstatement:

I have seen very strong and ultra claims asserted by most respectable writers,in behalf of diocesan rights; and have never attended a General Conventionwhere objections have not been made to this or that proposedlegislation, for the reason that it would be an invasion of the rights of theDioceses, or, if not, that it was beyond the scope of the National Church'slegislative powers, and on the other hand I observe, in looking over thelegislative acts of this National Church, that there is scarcely found a singlesubject naturally to be regarded as belonging exclusively to diocesancontrol, which has not been assumed to be within that of the NationalChurch, and acted on accordingly.

Research for this book was not begun in order to prove that the governmentof the Episcopal Church is either federal, confederal, or unitaryin structure. No attempt was made to find justifications for predispositionsof this nature. Instead, the conflict over the nature of the church'sConstitution was so intense that the wish to attempt to solve the controversywas sufficient of itself to provoke serious study into the problem.

It should be emphasized that this study is focused upon the formalstructure and not upon the behavior within that structure. There often isconsiderable behavioral divergence from the formal norm in governments.No attempt has been made in this book to determine the extent to whichthis is the case in the government of the American Episcopal Church.

Unitary, Federal, and ConfederalGovernment Defined

Internally speaking only, and in relation to the concentration versus thegeographic dispersion of political power, governments may only be classifiedas unitary, federal, or confederal. There are many forms and types ofeach, and the dividing line between them is by no means perfectly clear inreal governments. The difference between a highly decentralized unitarygovernment and a closely knit federal or confederal government, for example,may be difficult to determine without careful analysis.

But what do these terms mean? What is a unitary government, a federation,a confederacy? To define or explain any one of these three types isimpossible without reference to the other two.

However, it would seem that the normal type of governmental organizationis the unitary form. Kenneth Wheare, one of the great students ofmodern federalism, says:

It is commonly assumed that federal government is called upon to justifyits existence. The unitary form of government is regarded as normal andself-explanatory and self-justifying; if there is to be government at all foran area, it is assumed that, unless strong reasons to the contrary can beshown, that government will and should be unitary.

What, then, is a unitary government? Sidgwick defines it as one

in which the ordinary exercise of the highest powers of government belongsto a central organ or organs, exercising control over all the membersof the state; while only matters of secondary importance are handed overto the independent management of local governing bodies.

It must be emphasized that these "matters of secondary importance arehanded over" by the central government. They are not inherently possessedby the local governments. Thus, all political decisions are ultimately referableto a single, territorially inclusive, all-powerful, and, if explicitly limitedat all, self-limited central government.

The principle of unitary government is that of the legal supremacy ofa central government over all other exercisers of government in a given geographicarea. Unitary governments, however, may be considered in termsof the amount of power actually exercised by the central governments andthat exercised by the local governmental units.

Because of political, economic, or simply philosophical reasons, a unitarygovernment actually may exhibit the possession of considerable politicalpowers by the local governments. That is, political power may becentralized, in which case considerable power is held and exercised by thecentral government, or decentralized, so that the local governments possessa great deal of power. The distinguishing feature of a unitary government,again, is the legal supremacy of the central government. The mere distributionof powers within a state where the central government is legallysupreme over all other exercisers of political power only indicates the degreeof centralization or decentralization.

What is a confederate government? A confederacy is an association ofgovernments that have agreed to delegate to a common governmental authoritythe exercise of certain of their governmental powers. The association,though intended to be permanent, is characterized by the retentionin the associated governments of the right to nullify acts of the commongovernment agency, and to secede from the association at will. Supremepower thus lies in the member governments severally. The powers of thecommon government are usually partial, and are related to those problemsthat are the overarching concern of the confederacy as a whole. To some extent,a confederacy is a "state" itself; to some extent it is nothing more thana rather rigid alliance of states that have set up a common governmentalsystem over some mutual area.

Federal government lies between a closely knit confederacy and a decentralizedunitary government and must be defined in reference to thetwo preceding systems. Federalism is a principle of governmental organization,designed to be permanent, which manifests a constitutional divisionof governmental powers between a central (common, national, orgeneral) government and two or more regional (constituted or associated)governments in the following manner.

The general and associated governments are coordinate and, regardingthe powers assigned to them, independent in their own governmental jurisdiction.

That the real key to the nature of a federation is in the distribution of powersseems to be agreed upon by nearly every writer who addresses himselfto the question. Federalism implies the existence of two coordinate sets ofgovernment operating at two different levels in two different spheres.

The constitution that defines the distribution of governmental powersbetween the general and regional governments has a supremacy and rigidityover all other acts and bodies. Thus the constitutional distributions ofpowers between and among the several governments cannot be modifiedby the central government or by a state government alone, but only byeach operating independently and coordinately. This amending processnot only must be substantially more difficult than ordinary legislativeprocesses, but also must involve the concurrent consent of both the centraland associated governments.

Disputes between the regional and the general government or amongthe regional governments as to the meaning of the division and distributionof powers (that is, problems of constitutional interpretation) are settledby an authority independent of both state and central governments.However, if no authority is provided in the written constitution, the functionbelongs to the courts.

Thus, there can be no "nullification" by a component part of the acts ofthe central government, or the government is confederate. On the otherhand, if the central government unilaterally can eradicate or modify the structureor powers of the associated governments, the government is unitary.

Sovereignty, or ultimate legal supremacy, lies in the federation as awhole rather than in either the regional or the central governments alone,with the main expression of this sovereignty being found in the constitutionof the federation. If the central government were wholly sovereign,the government would be unitary. If the regional governments were whollysovereign, the government would be confederate.