When a student takes math classes, one of the things they learn is that math has an order of precedence – multiplication and division have a higher precedence compared to addition and subtraction. This meant that when working through a calculation multiplication and division are done first and then additions and subtractions are done next.
This “order of precedence” has also shown up in the recent restructuring process when the convention delegates learned that – in corporate law – the Statutory Bylaws are considered first and trump everything else – including the Constitution. Since the convention I’ve heard some conflicting stories about what people think is going on, and in this article I’ll try to clarify things as I understand them.
In a company the order of precedence of its documents are as follows:
- Statutory Bylaws
- Constitution (if present)
- Synodical Bylaws
What this means is that if there’s a conflict between the Statutory Bylaws and the Constitution, the Statutory Bylaws have a higher precedence and thus would prevail. This has the effect of nullifying the conflicting text in the Constitution. The same would hold true for a conflict between the Statutory Bylaws and the Synodical Bylaws or the Constitution and the Synodical Bylaws.
To look at this in a more concrete manner – suppose these documents established Synod’s official color, food, and season, like so:
- Statutory Bylaws – see the Constitution and Synodical Bylaws for Synod’s official color, food, and season
- Constitution – Synod’s official color is red and food is ham,
- Synodical Bylaws – official season is spring
In this scenario Synod’s official color, food, and season would be red, ham, and spring. This is how the pre-2017 Bylaws and Constitution was structured – “important stuff” was placed in the Constitution with the Statutory and Synodical Bylaws referencing them as needed. Since changes to the Constitution require a confirmation from the member congregations – I suspect this structure was chosen to ensure that member congregations had a direct way to confirm any changes to Synod’s official documents and policy.
At some point in time Synod holds a convention and changes the Statutory Bylaws to include a statement that blue is Synod’s official color. The Constitution is modified to remove red as the official color, but this change doesn’t take effect until it’s confirmed by 2/3rds of the congregations that vote.
The three documents now look like this:
- Statutory Bylaws – official color is blue
- Constitution – official color is red, official food is ham
- Synodical Bylaws – official season is spring
Because the Statutory Bylaws take precedence over the Constitution, Synod’s official list would be the blue, ham, and spring instead of red, ham, and spring. In this way the part of the Constitution that establishes an official color (red) has been nullified by the change in the Statutory Bylaws which specifies a different color (blue).
That’s where LCC is at this point in time – by implementing the new Statutory and Synodical Bylaws with immediate effect, Synod currently has a Constitution which is in conflict with its Statutory Bylaws. The difference is that the real world conflicts between the new Statutory Bylaws and the current Constitution aren’t nearly as straightforward to sort out as the example we’ve just gone through.
The following sections are some of the conflicts that currently exist and may become a permanent fixture for Synod if the amendments to the current Constitution are lost.
The new Statutory and Synodical Bylaws references a Synodical Constitution which, at this time, does not exist. Furthermore, the Synodical Constitution will not exist unless and until the proposed amendments to the current Constitution are adopted. And what happens if the amendments to the Constitution are lost and the Synodical Constitution never comes into existence? Any reference to a Synodical Constitution would be meaningless and that would mean …. I’m not really sure what… but I’m betting it wouldn’t be very pretty.
The new Statutory Bylaws Article XVI Regions and Circuits establishes the regional structure as a replacement for the old Statutory Bylaws Article XVII which established the district structure. What this change did not do was make the regional structure the only one Synod would use and so nullify any reference to a District structure in all the other Synodical documents. In my Not A Lawyer Opinion – if the current Constitution stands and the changes fail to be adopted then Synod could – on paper – be saddled with two overlapping structures – the new Regions and the current Districts.
I can see the response now “But the clear intent was to change over to regions!”
If that was the clear intent – then why weren’t the documents written that way? The restructuring group clearly knew about the order of precedence and had no problem using it to nullify parts of the Constitution – why didn’t they write the Statutory Bylaws to make regions the exclusive structure for Synod to use going forward?
In addition, the people charged with implementing these documents aren’t allowed to use the purported intention of the authors because what Convention voted in is what the authors wrote, not what they allegedly intended. Secondly, for anyone to (re)interpret the document according to their understanding of the author’s intent risks amending the document without proper authorization.
All told, Synod as an organization has to use the documents they have as they are currently written and live with the consequences of the convention’s decision.
A failed confirmation vote could also mean that the vote for Synod to dissolve it’s relationship with the various Districts in 2019 may be null and void as a contravention of a Constitution that mandates their existence as arms of Synod.
Someone needs to put this in front of the CCMS and ask for their official opinion – I’d love to read what their thinking is on this.
Given what I’ve uncovered so far, I’m fighting an urge to hide my eyes from the impending train wreck that’s coming – particularly if the amendments to the Constitution are lost and Synod ventures into uncharted territory without a compass or a map.
Special Convention anyone?
Credits: Train wreck picture is from a CBS News article published June 29, 2016, 12:34 PM
Update 2017-11-11: GES on SolaGratia questioned my accuracy in terms of how the Constitution is amended so I’m including the Constitution’s entire change process here. Part 4 states that any amendments voted on at the convention become effective at the expiration of six months from the date on which the amendment was adopted by a Convention, provided a two-thirds majority of the votes cast by congregations within that period shall have favored the amendment.
That means Synod is still under the old Constitution and will remain so for at least six months after the convention – assuming the amendments pass the member congregation confirmation vote. If the member congregation confirmation vote fails then the Constitution remains unchanged and it’s anyone’s guess what happens next.
Here’s the full article:
Article XIV Amendments to the Constitution
1. Amendments to the Constitution may be made provided they do not conflict with the provisions laid down in the Act or Statutory Bylaws, or in Article II and in Article VI.
2. All proposed amendments must be submitted in writing to a Convention, and each proposed amendment shall be voted on separately. A two-thirds majority of all votes cast at a Convention shall be necessary for adoption
3. After adoption by the Convention such amendments shall be reported to the congregations in the official periodicals of the Synod.
4. Proposed amendments to the Constitution adopted by a Convention shall be submitted directly to each congregation that is a member of the Synod on an official ballot, and the congregations shall by official action express their affirmative or negative vote and indicate the same to the secretary of Lutheran Church-Canada on this official ballot. The proposed amendment shall become effective at the expiration of six months from the date on which the amendment was adopted by a Convention, provided a two-thirds majority of the votes cast by congregations within that period shall have favored the amendment.