LCMS Convention Proceedings St. Louis, Missouri — 2016, Page 221

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the districts, his supervision is through the district presidents
(Bylaw 3.1.1.1 [b]; Constitution Art. XI B 1), but should they
fail to act, he may do so “by virtue of the power given him
in the Constitution (Article XI, B, 1, 2, 3)” (1956 Bylaw 5.23,
Handbook, n.p.). While the 1956­­­–1989 Bylaws have been revised away, this interpretation of the Constitution by the 1956
convention stands.
3. Conclusion
Constitution Art. XIV provides that “[t]he Synod in convention may adopt bylaws that are consistent with and do not
contradict the Constitution of the Synod, which controls and
supersedes such bylaws and all other rules and regulations of
the Synod.”
In the case of the former (1956–1989) provision, the case for
constitutionality was explicitly made, not only demonstrating
that the adopted provision “[did] not contradict” the Constitution, but also that it was “consistent with” the framework laid
out clearly by the Constitution, that being that the President
himself ultimately has the responsibility, under Constitution
Art. XI B 1–3, to “promote and maintain unity of doctrine and
practice in all the districts of the Synod.” The 1956 convention
adopted this mechanism (of appeal in case of inaction of district officials to the President of the Synod, for him to act) as
an organic clarification in bylaw of a power the Constitution
already granted the President in essence.
In the case of the latter (1989–2004) provision, the record
provides no positive constitutional rationale. Bylaws already
adopted by the Synod in convention deserve the presumption
of constitutionality, as the convention is the “principle legislative assembly” of the Synod (Bylaw 3.1.1) and adopts bylaws
only after positive review by the CCM (Bylaw 7.1.1). Upon later review, could they be shown to conflict with the Constitution, they would, of course, be invalid. The commission’s two
narrowly-focused reviews of this latter bylaw provision, as applied in an exceptional case, avoided finding it in conflict with
Constitution Art. XI B 1–3’s assignment of these responsibilities to the President of the Synod by grounding the provision
instead under Constitution Art. XIII 2.
While such narrow reviews avoided finding the latter bylaw
provision in conflict with the Constitution, this latter provision
and, importantly, the Referral Panels subsequently adopted in
its place [Bylaws 2.14.5–2.14.5.3, etc.], are certainly less consistent with the Constitution’s overall design and framework than
the former (Constitution Art. XIV).
Moreover, this review finds the change of the Bylaws in 1989
and subsequently (namely, to remove the right of appeal for
action to the President, should district officials fail to act, and
to replace it first with an appeal to the Praesidium and then
with an appeal to a Referral Panel) to conflict with the Constitution of the Synod. This change unconstitutionally deprived
the President of the Synod of procedures for exercising a power granted him in Constitution Art. XI B 1–3. That this power
to receive appeals for action, in case of the inaction of district
officials, is one of the means constitutionally “at [the President’s] command to promote and maintain unity of doctrine
and practice in all the districts of the Synod” (Constitution
“12. Ecclesiastical Supervision and Dispute Resolution”

Art. XI B 3) was the opinion of the Synod in convention in
1956. It expressed this opinion explicitly and with its unique
and final interpretive power. It must therefore be the opinion
also of this commission.
__________
1.
1971 Res. 5-14 (Proceedings, pp. 156f.) modified the provision to read, “If the District officers fail to act, the President of Synod, by virtue of the power given him in the Constitution
(Article XI, B, 1–3, inclusive) may on his own initiative institute proceedings, take administrative action, and, if necessary, present charges to the appropriate District Commission on
Adjudication, provided, however, that such must be in the same manner as hereinabove set
forth for the District officers” (1971 Bylaw 5.13, Handbook, p. 115).

1983 Res. 5-20A (Proceedings, pp. 188f.; see Reports 5-03 and 5-04 in 1983 Workbook,
pp. 200–213) altered it again: “If the District officers fail to act within 60 days after the
complainant has notified the District President in writing that he wishes to pursue the matter,
the complainant may petition the President of Synod, who by virtue of the power given him
in the Constitution (Article XI, B, 1–3, inclusive) shall make inquiries and may on his own
initiative institute proceedings, take administrative action, and, if necessary, present charges
to the appropriate District Commission on Adjudication. If after a reasonable time the
synodical President does not intend to institute proceedings, he shall so inform the complainant
and the involved member in writing” (1983 Bylaw 8.41 [g], Handbook, p. 194).
1986 Res. 5-02A (Proceedings, pp. 163f.), originating with the Commission on Structure,
elaborated the meaning of the 1983 Bylaw words, “If the District officers fail to act,” replacing them with the text, “If the District President declines to commence an action to terminate
membership, or if he neither suspends nor declines to suspend the member” (1986 Bylaw 2.27
[f], Handbook, p. 31).
2.
CCM Minutes, 10 Nov 1955, p. 39. See also “Report of the Committee on Constitutional
Matters,” 1956 Proceedings, p. 445.
3.
The convention’s action in 1956 establishes not only that Constitution Art. XI B 1–3 grants
this power to the President, but also that no other constitutional article diminishes this
power. Significantly, Constitution Art. XII 7, stating that district presidents shall “moreover,
especially exercise supervision over the doctrine, life, and administration of office of the
ordained and commissioned ministers of their district,” read in 1956 as it does today.
Constitution Art. XII 7 was understood by the convention as in no way diminishing the
President’s authority, inherent in Constitution Art. XI B 1–3, to act, should district officials
fail to do so.

Constitution Art. XII 8 and Constitution Art. XIII 2 were altered in 1965 when the adoption of the adjudication system transferred final expulsion proceedings from district and
Synod conventions to Boards of Appeals. Before and after 1965, Constitution Art. XII 8
empowered district presidents “to suspend from membership.” Before 1965, Constitution
Art. XIII 2 also read, “Such expulsion is executed, as a rule, by the Districts of Synod; yet
those so expelled have a right of appeal to Synod.” Neither the wording of Constitution
Art. XII 2 (before 1965) nor that of Constitution Art. XII 8 (either before or after 1965) was
interpreted so as to diminish the President’s constitutional authority to act, should district
officials fail to do so.
Since 1965, Constitution Art. XIII 2 has read, “Expulsion shall be executed only after
following such procedure as shall be set forth in the Bylaws of the Synod.” More flexibility is
allowed the convention in setting out an expulsion procedure in the Bylaws, but at the same
time this constitutional change prohibits, in the case of expulsion proceedings, exercise of
constitutional powers for which there is no bylaw procedure specified.
4.

See CCM Minutes, 18 May 1952, 28 Sept. 1952, 2 Feb. 1953, 21 May 1953, 1 Jan. 1955, 10
Nov. 1955. The presentation and adoption of this proposal can hardly be construed otherwise than as the result of a careful constitutional analysis.
5.
An opinion of the CCM “shall be binding on the question decided unless and until it is
overruled by a convention of the Synod. Overtures to a convention that seek to overrule an
opinion of the commission shall support the proposed action with substantive rationale
from the Constitution, Bylaws, and resolutions of the Synod” (Bylaw 3.9.2.2 [c], emphasis
added). Implicit here is the recognition that not every resolution of a convention has this
final interpretive force. It is possible for the commission or the convention to find that a
convention has acted in a manner inconsistent with or contradictory to Synod’s Constitution and therefore invalidly (Constitution Art. XIV). See, e.g., 1962 Res. 6-01, “Constitutionality of Resolution 9 of Committee 3 of the 1959 Synodical Convention,” Proceedings, p. 122;
and “Supplement to Report of Committee on Constitutional Matters,” id., p. 187.

Where, however, the convention as the Synod’s “principal legislative assembly” (Bylaw 3.1.1)
has explicitly and with substantive rationale interpreted aspects of the Constitution, it has
exercised its own final interpretive authority—that greater, original authority from which it
has delegated to the commission its provisional (“unless and until overruled”) interpretive
authority. For such an exercise of the convention’s final interpretive authority, see, e.g., 1973
Res. 2-12, “To Understand Article II of the Synod’s Constitution as Requiring the Formulation and Adoption of Synodical Doctrinal Statements.”
6.
1989 Res. 5-08A (Proceedings, pp. 130–131) put this provision into the hands of the
Praesidium, instead of the Synod President acting alone (1989 Bylaw 2.28, Handbook, pp.

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