LCMS Convention Workbook St. Louis, Missouri — 2004, Page 377

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OPINIONS OF COMMISSION ON CONSTITUTIONAL MATTERS 377

At the 1962 synodical convention, the Synodical Survey Com-
mission recommended with respect to the Commission on Consti-
tutional Matters that its “opinions shall be binding until and unless
Synod overrules them” (1962 Convention Workbook, p. 258). That
recommendation was implemented by the Synod, and the Bylaws
of the Synod were amended to provide that “an opinion of the
Commission shall be binding on the question decided unless and
until it is overruled by a synodical convention.” That bylaw has

continued in existence since that time and is currently found in
Bylaw 3.905 d, as quoted above.

The first formal opinion of the Commission on Constitutional
Matters based upon that bylaw was issued as early as March 7,
1968, as agenda item 111. After the Commission had earlier issued
an opinion as to whether a District convention could recognize as a
pastoral delegate an individual not on the roster of Synod, the same
issue was again submitted for consideration. The Commission rec-
ognized that the prior opinion was binding and declined to rule fur-
ther.

In 1976, during a very difficult period for the Synod, the Com-
mission was asked to deal with a number of issues regarding the
Association of Evangelical Lutheran Churches. The September
1976 minutes reflect in agenda item 144 a challenge to an opinion
of the Commission brought by Dr. J. A. O Preus, joined by then
legal counsel to the Synod, Phil Draheim. The minutes reflect that
the request for rehearing was made both on the initiative of Dr.
Preus as well as at the request of the Missions Department, the Pen-
sion Department, the Church Extension Fund, the Executive Com-
mittee of the Board of Directors, and several District Presidents.
The Commission reminded the Synod, through its opinion, that the
Synod had chosen to accept the opinions of the Commission on
Constitutional Matters as binding. Despite significant disagreement
within the Synod, the Synod chose, following that decision, not to
change the Bylaws with respect to the binding effect of the deci-
sion of the Commission.

Later in that same year, in December of 1976, the Commission
discussed agenda item 210, which involved a questionnaire from
the Task Force on Constitution, Bylaws, and Structure. The Task
Force explored whether the items on the Commission’s agenda
should be screened by the Board of Directors, and whether the
Commission’s decisions and opinions should not be of a binding
nature until a subsequent convention came to such a conclusion.
Ultimately, both of those suggestions were rejected, and the bylaw
provisions regarding the binding nature of Commission on Consti-
tutional Matters’ opinions remains.

In March, 1990, the Commission issued an opinion generally
surveying the relative rights and responsibilities of various agen-
cies or entities of the Synod to interpret the Constitution and By-
laws of the Synod in matters of adjudication and appeals. In the
March, 1990 opinion, the Commission reiterated that, under the
bylaw then numbered Bylaw 3.533, “once a question is asked and
an opinion rendered, no other body has the right to alter or change
it and the ‘opinion rendered by the Commission shall be binding
on the question decided unless and until it is overruled by a syn-
odical convention.””

The concept that the decisions of the Commission are binding
unless and until overruled by the convention has been recognized
repeatedly since, as, for example, in a February, 1991 report in re-
sponse to a request from the President; in Opinion Ag. 2022 (Janu-
ary, 1996); in a July, 1999 response to a request for reconsidera-
tion of Opinion 99-2144; and in opinions 99-2156 (September,
1999), 99-2162 (October, 1999), and 01-2240 (December, 2001).

Thus, the Synod in convention determines the structure of the
Synod, and the Synod in convention has expressly restricted the
right of the Board of Directors to call up for review, criticism, mod-
ification, or revocation opinions of the Commission on Constitu-
tional Matters. Furthermore, despite multiple opportunities to
amend the Bylaws to eliminate the binding nature of Commission
on Constitutional Matters’ opinions, the Synod in convention has
recognized the need to empower an entity, subject only to the con-
vention itself, to have the authority to issue binding opinions re-
garding its Constitution and Bylaws. The Synod in convention has
chosen to continue to entrust that authority to the Commission on

Constitutional Matters. Any apparent conflict is not with the Com-
mission on Constitutional Matters but with the Constitution and
Bylaws themselves,

Question 3: LCMS Bylaw 3.101 C 11 provides that the Presi-
dent shall “be authorized, in the event that the affairs of the Synod
require the exercise of executive power for a purpose for which
there is no specific directive of the Synod, to exercise such power
after consultation with the Vice-Presidents, the Board of Directors
of The Lutheran Church—Missouri Synod or the Council of Pres-
idents, whichever, in his judgment, is most appropriate.” What, if
any, are the constitutional or bylaw definitions, boundaries, or lim-
its of such “executive power’?

Opinion: The general duties of the President and the power to
fulfill those duties are described in Article XI B of the Constitu-
tion and in Bylaw 3.101. The term “executive power” is not used in
the Constitution of the Synod. The term does appear in Bylaw
3.101 C 10, which directs that the President shall “exercise execu-
tive power when the affairs of the Synod demand it and when he
has been expressly invested with such power by the Synod in con-
vention,” and in paragraph c 11 of that bylaw as quoted in the ques-
tion above.

Article XI B of the Constitution defines the duties of the Presi-
dent and inherently the power to carry out those duties as follows:

B. Duties of the President

1. The President has the supervision regarding the doctrine and the
administration of

a. All officers of the Synod;

b. All such as are employed by the Synod;

c. The individual Districts of the Synod;

d. All District Presidents.

2. It is the President’s duty to see to it that all the aforementioned act
in accordance with the Synod’s Constitution, to admonish all who in
any way depart from it, and, if such admonition is not heeded, to report
such cases to the Synod.

3. The President has and always shall have the power to advise, ad-
monish, and reprove. He shall conscientiously use all means at his com-
mand to promote and maintain unity of doctrine and practice in all the
Districts of the Synod.

4. The President shall see to it that the resolutions of the Synod are
carried out.

5. When the Synod meets in convention the President shall give a
report of his administration. He shall conduct the sessions of the con-
vention so that all things are done in a Christian manner and in accord
with the Constitution and Bylaws of the Synod.

6. It is the duty of the President, or an officer of the Synod appointed
by the President, to be present at the meetings of the Districts, to advise
them, and to report at the next session of the Synod.

7. The President shall perform all additional duties assigned to him
by the Bylaws or by special resolution of the Synod in convention.

8. When matters arise between meetings of the Synod in conven-
tion which are of such a nature that action thereon cannot be delayed
until the next convention, the President is authorized to submit them to
a written vote of the member congregations of the Synod only after full
and complete information regarding the matter has been sent to member
congregations by presidential letter and has been published in an official
periodical of the Synod. If such matters are related to the business af-
fairs of the Synod, such a vote shall be conducted only after the Presi-
dent has consulted with the synodical Board of Directors. In all cases at
least one-fourth of the member congregations must register their vote.
The Bylaws further define the President’s powers and duties in

Bylaw 3.101, dividing those powers and duties as to ecclesiastical,
administrative, and those which are both ecclesiastical and admin-
istrative. The President, together with all the officers of the Synod,
is limited in his powers by Article XI A 1 of the Constitution: “The
officers of the Synod must assume only such rights as have been
expressly conferred upon them by the Synod, and in everything
pertaining to their rights and the performance of their duties they
are responsible to the Synod.” As prior opinions of the Commis-
sion have recognized, because of the broad grant of authority to the
President, it is often difficult to define with particularity and in ad-
vance the precise boundaries of the President’s duties and powers.

2004 Convention Workbook