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LCMS Convention Workbook St. Louis, Missouri — 2019, Page 189

Scan: The Lutheran Church—Missouri Synod

Transcription machine transcription, uncorrected

I. OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS

4. Suspension Power of the President of the
Synod, Constitutionally Considered
The request for reconsideration argues that Const. Art. XII
6 grants to district presidents powers and duties of the President
of the Synod, within their districts, and that Const. Art. XII
7 and 8 enumerate additional powers and duties of the district
presidents originating in their own unique office, which are in no
way derivative of powers inherent to the office of the President
of the Synod. The commission finds this analysis to be contrary
to the sense of Const. Art. XII 6, which clearly states that the
district presidents, among other officers of the districts, “have
the same rights (Rechte) and duties (Pflichten) as those outlined
in this Constitution for the officers of the Synod but only insofar as these apply to the district and only within the boundaries of their districts.” The commission also finds reasonable
the argument advanced in 2003, that Const. Art. XI B 2 and 7
and XIII 2 provide constitutional allowance for (and indeed, as
Op. 16-2791 indicates, warrant) the existence of bylaws outlining
the manner in which the President may carry out his duty and
responsibility of ecclesiastical supervision by initiating formal
proceedings against a member who is under district supervision
where the matter involves doctrine or practice and the district
president has failed to act or declined to suspend.
Const. Art. XII 7 does indeed indicate: “The district presidents shall, moreover, especially exercise supervision over the
doctrine, life, and administration of office of the ordained and
commissioned ministers of their district …” (emphasis added).
An examination of the underlying parallel German indicates
these words provide no basis to understand that the power of
supervision within the district is an extraordinary power given
only and finally to the district presidents. Const. Art. XI speaks
of the “rights (Rechte) and duties (Pflichten)” of the officers
of the Synod, to which the “same rights and duties (dieselben
Rechte und Pflichten)” of the district officers correspond (Const.
Art. XII 6), “insofar as these apply to the districts and within
the boundaries of their districts.” Const. Art. XI 1 has that “The
officers of the Synod must assume only such rights as have been
expressly conferred upon them by the Synod (haben nur solche
Rechte in Anspruch zu nehmen, welche ihnen ausdrücklich von der
Synode übertragen sind).” The word right is used of a power conferred on an office, and the word duty, in a corresponding but
distinct way, of an obligation expected of an office. Officers are
to assume only those rights expressly conferred by the Synod
(no distinction is made whether this assignment is by Constitution, Bylaw, or resolution, excepting of course that Bylaws must
be consistent with the Constitution and that resolutions must be
consistent with the Constitution and the Bylaws).
Const. Art. XI B 1 states that the President has the supervision (hat die Auffsicht) over those named (including “the individual districts of the Synod.”) This is not delineated either as a
right or duty, so it is appropriately considered to be both. Const.
Art. XI B 2 spells out a duty (hat die Pflicht) to see to it, etc., not
a right per se. Const. Art. XI B 3 speaks of the President’s power
(Gewalt, here apparently a synonym for right) to advise, admonish, and reprove, etc.—note that it is not an exhaustive description of his power, as it does not say “only”—but that it does say
“has and always shall have,” extending into the districts of the
Synod, as the last phrase indicates (“in all the districts of the
Synod”). Finally, with regard to Const. Art. XI B 713 the phrase
“all additional duties” is not a straight translation of the Ger-

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man for “all other work” (alle weitere Arbeit), which implies that
additional (i.e., such as are not enumerated explicitly here) duties
and powers or rights (consistent, of course, with constitutional
authority) can be conferred on the President by the Bylaws or
special resolutions of the Synod.
When we compare Const. Art. XII 6 and 7, dealing with
the rights and duties of the district presidents, we see the “same
rights and duties” of the President of the Synod conferred on
the district president, confined to the matters of his district, as
noted above. But in Const. Art. XII 7, we find not an additional
right conferred, to supervise the members of his district, but
that the district president is, moreover, especially obligated (noch
besonders verfplichtet) to carry out such supervision. There is no
language of right here, only language of duty. Const. Art. XII 7
underscores an obligation district presidents, in particular, have
within their districts, on behalf of the Synod. It does not grant
them a unique right. It expects of them chief responsibility. The
expectation of the district presidents chiefly to act in these matters does not preclude a right of the President, asserted by 1956
Res. 6-11 as present in Const. Art. XI B 1–3, to exercise his own
authority in these matters should they fail in their chief responsibility. Indeed, such was the sense of the instruction (included
in footnote 13, below) that was appended to the Constitution
from 1864 to at least 1899, and perhaps up to the thoroughgoing revision of 1924.
Finally, Const. Art. XII 8 begins in the German, “Die Distriktspräsides sind ermächtigt, den Nebengezetzen der Synode
gemäss Prediger … zu suspendieren.” Here an immediate reference to “in accordance with the Bylaws of the Synod,” deferred
in the modern, post-1965 English to the end of the paragraph,
indicates a strong connection of the empowerment of district
presidents to suspend with the elaboration of the expulsion process in the bylaws. As noted above, the association of suspension with the district presidents is not absolute (that is, they do
not exercise it on a raw constitutional basis but in accordance
with the bylaws of the Synod, with significant expectations and
limitations). It is not absolutely limited to them (there is no
“exclusive particle” in this empowerment) or explicitly treated
as an added power (neither is there an “also”). It has been reconfigured and supplemented variously over many revisions of
the disciplinary system (often, the district president himself has
not been able to suspend without the concurrence of a district
board of appeals). Given all these factors, and especially the
fact that Const. Art. XI A 1 and B 7 permit bylaws to allow additional work (rights and duties) to the President of the Synod,
the commission does not find the history of interpretation or
application of this paragraph to preclude the President of the
Synod receiving and handling an appeal for action in a matter
involving a member under district supervision, in a case involving doctrine and practice, and where a district president has
failed to initiate the disciplinary procedures warranted under
Const. Art. VI and XIII and applicable bylaws.
The commission also notes Const. Art. XI B 1 c, that the
President of the Synod “has the supervision regarding the doctrine and administration of ... the individual districts of the
Synod.”14 While the ordinary expectation is that
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“[i]n the districts of the Synod, he shall carry out his
ecclesiastical supervision duties through the district’s
president” (Bylaw 3.3.1.1.1[b])
2019 Convention Workbook