Why is the old Title IV better than the New?
Granted one has to be a CandC (Constitution and Canons) geek to even get the question, there it is. While notable Canon lawyers believe I am of no consequence as a CandC geek and ought to take up other tasks, I take heart in the belief that ordinary people can ask ordinary questions.
Here is what the question is about.
The Diocese of South Carolina believes part four (Title IV) of the Canons of The Episcopal Church, dealing with ecclesiastical discipline, does not square with the Constitution of The Episcopal Church. It is, in their view, unconstitutional. Since this involves a judgment of a law (canon) in relation to the constitution under which such law exists, and since there is (as far as South Carolina can see) no way to test the constitutionality except to confront head on the validity of the canon, the Bishop of South Carolina and the Convention of the Diocese have rejected it, and in dealing with the consequences hope, one supposes, to bring The Episcopal Church to its senses, or alternately to save the Diocese from the general church failings.
The Diocese, in order to do this, makes the claim that it is free to disavow canons passed by General Convention when it its collective wisdom those canons are contrary to the Constitution. So the Diocese has asserted "diocesan rights," among them being the right to disregard canons that it believes are unconstitutional.
OK. I think I have it so far.
Now my understanding is that the Diocese of South Carolina intends to continue using the Title IV canons that were in force until July of this year, prior to the current Title going into effect. As far as I know the Diocese of South Carolina has used the previous Title IV disciplinary process without objection.
In all of this several Canon lawyers (and how they become experts in such matters is a matter of separate interest) have written papers that we CandC geeks find very interesting. It is unclear just how much these lawyers are engaged in specific church litigation at this time and how much their writing tasks (which are considerable) and ability (also considerable) is being generated as a form of affirmation of their expertise. But the fact is they produce a great deal of material, some of it quite good.
Mulling over one of these papers,Title IV and The Constitution: Dioceses’ Exclusive Authority for Clergy Discipline published on the Anglican Communion Institute pages (ACI being unrelated in any way to the official thingy called "The Anglican Communion"), by C. Alan Runyan and Mark McCall, I found this remark:
"Indeed, notwithstanding the repeated attempts of canonical commentators and a minority of General Convention “again and again” to provide for a uniform judicial system, including the preparation of draft canons to implement hoped for constitutional amendments, no such canon was passed for almost a century after the 1901 revision. This was not done until 1994, only seventeen years ago, when the current Title IV was passed with inadequate constitutional review. And that unprecedented and unconstitutional canon had been in effect only a few years before General Convention began working on its complete revision."
So Runyan and McCall believe that the prior Title IV was "unprecedented and unconstitutional" just as the current Title IV.
The questions is then, why did The Diocese of South Carolina not object to that Title IV, and why does it think it better than the current Title IV, on the basis of constitutionality?
And, while we are at it, why does the Diocese of South Carolina believe that the ecclesiastical version of civil disobedience, as a means of testing the constitutionality of Title IV, preferable to mounting an effort at General Convention to rescind or modify the existing Title IV. If the case can be made, isn't that the place to do so? The claim is made that The Episcopal Church has no judiciary capable of judging if a canon is in accord with the Constitution. But it does. It is called the General Convention. General Convention makes the canons and it can revise or rescind them.
It might be the sort of resolution only a CandC geek would love, but something like this might do:
"Resolved, the House of _________________ concurring, that the General Convention, believing Title IV, Article ______ , Section _______ is unconstitutional, directs that Title IV, Article _____, Section _____ be removed from the Canons, being replaced by __________, this to take effect immediately.
The Diocese of South Carolina has gone way around the bend in order to do what it could just as well do straightforwardly. Perhaps it is doing so because it doesn't believe it can convince the rest of the Church. Well, that's the way it goes in more or less legislatively run Episcopal land.