Bishops Unbound

In Before Church and State, Andrew Willard Jones describes a time when Christendom’s lay rulers were leaders in building the City of God. They “wielded the secular, temporal sword . . . bestowed on the Christian people by Christ himself.” In the medieval era, before sharp categorical distinctions had been drawn among “church,” “state,” and “secular society,” Christians understood their world as “sacramental,” with “the material and the spiritual . . . always present together.” As the clergy dispensed graces “that sustained . . . society in charity,” wielding “the spiritual sword of excommunication,” laymen wielded “temporal power”—to defend the Church’s body “against the violent” and to “organize the world of things and events,” so that their fellow Christians could enjoy earthly blessings while sojourning toward heaven.

In the early modern era, which witnessed the Catholic Reformation and the rise of royal absolutism, something of this integral understanding of the corpus Christianum endured, even as Christendom fractured into rival nation-states. Although Tridentine reformers centralized the powers of bishops and popes in new ways, lay Catholics continued to play leading roles in organizing and safeguarding the Church’s common life. Marie de Vignerot, ­Duchesse d’Aiguillon and a niece of Cardinal Richelieu, offers a remarkable example. Devout and dedicated to Church reform and expansion, D’Aiguillon veritably owned, and supervised from Paris, a missionary diocese for Tonkin, Laos, and southwestern China. Pope Alexander VII created the diocese at her insistence and appointed a bishop she preferred, François Pallu. D’Aiguillon provided for Pallu’s income and other necessities, instructing him on ways they could be used. Even as Pallu formally answered to Rome, he regularly took direction from his patroness, other Parisian elites, and King Louis XIV.

In partnership with reforming clergymen and religious, lay officials and social elites advanced much of the Church’s post-Reformation renewal and missionary growth. Despite the new disciplining powers secured to them by Trent, prelates sometimes played passive roles, blessing and gently steering others’ initiatives. D’Aiguillon was free to devote vast wealth and power to developing Catholic ministries in Europe, Canada, Southeast Asia, the ­Levant, Madagascar, and North Africa. She staffed some of them with priests she favored for their orthodoxy, morals, and devotion to the poor, chosen from her friend Fr. Vincent de Paul’s new apostolic ­society, the Congrégation de la Mission. She also helped to found and direct the seminary of the Société des Missions étrangères de Paris, which still operates today.

While piecing together D’Aiguillon’s story for a book project, I have found it difficult these days not to wonder: What would Marie have done had she learned that churchmen in her orbit had sexually abused children and young clergymen under their authority? That bishops she knew had helped to cover up such abominations for decades, and even advanced the careers of known abusers?

Perhaps she would have used her clout to have at least some of them defrocked, flogged, and prosecuted to the full extent of royal and ecclesiastical law. Rape, for example, was punishable by death under the Ancien régime. Contrary to a common myth about privileges enjoyed by clergymen back then, ­ecclesiastics were sometimes tried and sentenced by secular authorities. Canon law protections for the clergy were not codified or applied uniformly throughout the whole Church. The ecclesiastical court system did not run neatly parallel to secular courts, but was entangled in a lattice-work of jurisdictions, institutions, and local customs that had grown up organically in Christendom since late ­Roman times.

In short, D’Aiguillon in her day would have had more recourse for holding corrupt churchmen to account than concerned lay Catholics have in ours. Of course, early modern bishops, cardinals, and popes got away with a great deal. But if the likes of the Duchesse d’Aiguillon had suspected their involvement in an international cover-up of sexual malfeasance, they never would have been able to collectively stonewall her with anodyne public apologies and PR-firm-­approved calls for new “policies,” “commissions,” and self-led investigations. Such displays of hubris and unchecked power over the Church’s common life belong rather to prelates of our modern age.

The power of bishops within and over the Catholic Church has swelled greatly in recent times. Important changes occurred between the 1860s and the 1980s, including aspects of the codification of canon law in 1917 and the transformation of bishops’ roles and self-understanding at Vatican II. Revolutionizing certain structures of Church governance, these shifts concentrated into bishops’ hands more power than they had traditionally wielded vis-à-vis the laity and lower clergy.

In the second half of the nineteenth century, Catholic leaders struggled to meet new challenges to their faith and Church unity. Liberal and nationalist revolutions overthrew Church establishments in the heartlands of old Christendom. At the same time, Church membership increased dramatically in mission territories such as French West Africa, the Philippines, and the culturally Protestant and revolutionary USA. To strengthen the Church’s identity across shifting, far-flung landscapes, popes and prelates further consolidated and rationalized their authority over the faithful. This required disentangling the Church’s governance from secular political and social structures. As Russell Hittinger has pointed out in these pages, churchmen of that generation, even while condemning as heretical the liberal doctrine of separation of Church and State, sought to protect the globalizing Church from interference by secularized, expanding nation-states. To ensure the Church’s liberty, they envisioned a structural separation more radical than that favored by revolutionaries such as Napoleon or Garibaldi, who—despite the anti-Catholicism fueling liberal and nationalist movements in that era—wished to co-opt rather than suppress the Church, envying her influence over the masses and her educational and charitable infrastructure. This ambition of the revolutionaries vindicated modern churchmen’s drive toward autonomy from the state.

Looking back, we can see that Vatican I–era reformers reconstituted the ancient, historically developed ecclesial organism—which had both midwifed, and become complexly integrated with, many secular powers—into an independent para-state or para-­Christendom. They wanted to maintain a highly visible, worldwide Church, sufficient unto herself and fortified against new political authorities who did not prioritize the Church’s unity or spiritual well-being. In place of the old patchwork of actual Christendom and its missionary offshoots, the mid- and late-nineteenth-­century Church was to become a more purely ecclesial global polity, consisting of local churches in full communion, governed hierarchically and maintained in unity under one head, the pope.

How might this be done? For centuries, powerful nobles and other social elites had borne much responsibility for the Church’s mundane affairs, by establishing monasteries and missions, sponsoring and directing the Church’s charitable ministries, and choosing from among their families and friends who got to join the clerical hierarchy. Yet revolutions had unraveled the fabric of interwoven spiritual and secular governance, not just by upending aristocratic regimes and ecclesiastical establishments, but also by drawing elites into the new nationalistic and ­ideological camps.

Harnessing the Zeitgeist in their own way, Church leaders prioritized new assertions of executive power. The nineteenth century was an era of strong political executives, many of whom saw themselves as servants of liberal ideals and the popular will—even as they centralized, bureaucratized, and rationalized political power, often in opposition to deeply rooted social orders, popular rituals and mentalities, and legal traditions. It was only natural that churchmen of the era drew inspiration from such examples, despite the fact that their revamped Church would lack the coercive mechanisms of a nation-state. Thus, the Vatican I fathers put a premium on forceful, expansive formulations of their own and (especially) the pope’s authority, to which Catholics in good standing were to assent. They affirmed not just the pope’s infallibility with respect to teachings on faith and morals, but also his “primacy of jurisdiction over the whole Church of God,” a “jurisdictional power . . . both episcopal and immediate,” to which “clergy and faithful . . . singly and collectively, are bound to submit . . . by the duty of hierarchical subordination and true obedience.” This newly defined jurisdictional power guaranteed consistency for “the discipline and government of the Church throughout the world.” The goal was to consolidate a global Catholic polity animated by a confessional loyalty resembling the intensifying patriotisms of the age.

The power of bishops was not much discussed at Vatican I. Yet the way was paved at the council, and in conversations surrounding it, for bishops to become more empowered than in the Tridentine era as agents of centralized ecclesial governance. The council’s fourth session affirmed bishops’ “ordinary and immediate power of episcopal jurisdiction” over the faithful within their dioceses, a jurisdiction from which the pope’s consolidated power “by no means detracts.” Prior to the council, Pope Pius IX had urged bishops to monitor and discipline university theology faculties—a practice that had not previously been the norm. Additionally, the Church in some mission lands, including the young United States, was increasingly being structured as an episcopally dominated clerical republic. As the nineteenth century ended, bishops became more universally the primary governors of the Church, answerable ever more exclusively to the pope. And diocesan infrastructures and parishes—and much of the Church’s institutional and apostolic life—while freed of old and new secular entanglements, were further rationalized, bureaucratized, and subordinated to bishops’ centralizing power.

To understand the new role bishops and their jurisdictions were playing, it is useful to draw a comparison to the French revolutionary system of départements, which was formed from the ruins of the Ancien régime. Each département was headed by a prefect with an army of bureaucrats under his centrally sanctioned authority. All of these officials were answerable to Paris, not to local power centers that traditionally enjoyed more autonomy. Bishops, as their loyalties shifted more fully to the pope and to each other (their “secular” ties seen now as beneath, and “separate” from, ecclesial interests and duties), were newly valuable to the Church in the way that the rising class of civil servants was indispensable to the Napoleonic state.

After Vatican I, popes began to assert with new force their right to select the Church’s bishops and to govern the universal body more “immediately.” To many lay elites at the time—and many churchmen, too—this was by no means an obvious step. Previously, popes had selected and confirmed only a minority of bishops, such as those for the Papal States and some for mission territories. Following customs established by the sixteenth century, many bishops were chosen by metropolitans or civil authorities. In a practice dating back to the twelfth century, others were elected by cathedral chapters—bodies of clergymen often guaranteed in their position by local lay and clerical dignitaries. A few places maintained the customs of the early Church, whereby larger bodies of clergymen and even laypersons elected bishops.

All of this began to change in the late nineteenth and early twentieth centuries. For example, the Vatican negotiated with the new, unified Italian nation-state to secure the 1871 Law of Guarantees. This law allowed the pope, for the first time, to choose bishops for the whole peninsula. More radically, the Code of Canon Law of 1917 asserted the pope’s right to select all bishops of the Church.

The new Code, superseding with new force of authority all prior canonical norms, constituted what Edward Peters calls “the greatest revolution” in ecclesiastical law since Gratian’s twelfth-century compilation of the Decretum. If revamped dioceses headed by loyal Vatican I bishops were the Church’s response to secularized nation-states, the 1917 Code was her answer to the Napoleonic Code and its progeny, which were still revolutionizing jurisprudence in Europe and many colonized parts of the world. It was the first official, unitary standardization of the Church’s ancient legal tradition. As its stipulations regarding the selection of bishops illustrate, it abolished much of what remained of the dispersed powers of governance over the Church’s mundane affairs that had characterized Christendom. Rights long enjoyed by some laypersons and lower clergymen were further abrogated. Furthermore, the Code’s promulgation by the Vatican represented a novel subordination of ecclesiastical jurisprudence itself—formerly a complex “independent ecclesiastical discipline,” as Peters writes—to the hierarchy’s power, newly implying a right of the central powers to revise the Code at will or replace it altogether, as would happen in 1983.

Before 1917, local Church authorities had applied what they variously knew of canon law in a complex dance with secular ordinances, secular jurisdictions, and local legal traditions. After 1917, completing processes set in motion by Pius IX and the Vatican I fathers, a streamlined legal system began to be enforced as uniformly as possible by bishops throughout the world. Since then, Church governance has been conducted in cleaner separation from secular legal systems. One consequence is that clergymen, who have more rights than laypersons under the Code, if accused of a canonical crime, may be tried or excused by Church officials (who are themselves at the bishops’ disposal) with little scrutiny from the larger body of the faithful. The 1917 Code enshrined, for example, an earlier instruction of Pius IX that clergy accused of violations of their vows of celibacy be tried secretly by ecclesiastical tribunals under episcopal authority—but without the centuries-old requirement that those found guilty of serious sexual crimes should be referred to civil authorities for punishment.

The full empowerment of the episcopate came about at Vatican II. Christus ­Dominus, the council’s decree on the pastoral office of bishops, reformulated episcopal powers. A bishop did not merely possess immediate jurisdictional authority over his diocese; he had a special right of governance, like the pope’s, over the universal Church. For the first time in history, the episcopate proclaimed itself, after a resounding vote, to be a uniquely elevated body. The bishops asserted that they constitute a “College,” which, “in its evangelizing, sanctifying, and governing task . . . along with the Roman pontiff, enjoys full and supreme power over the universal church.” The language in Christus Dominus on episcopal consecration—specifying that it bestows the “fullness of the sacrament of orders” and subordinates to bishops “both presbyters and deacons” with respect to “the exercise of . . . authority”—caused a minority to fear that sacramental priesthood per se was being eclipsed as the core and summit of clerical identity. Some enthusiastic interpreters, for their part, indeed posited that bishops’ consecrations constituted a sacrament distinct from priestly ordination, conferring new graces and prophetic powers.

Christus Dominus also regularized the historically exceptional offices of auxiliary bishop and coadjutor bishop, describing those who would fill them not simply as stand-ins for bishops who are incapacitated or absent, as was traditional, but as men who should “proceed in all matters in single-minded agreement” with the reigning bishop. Furthermore, the few surviving cathedral chapters were to be “reorganized and better adapted to the needs of the times,” and to become subordinate “cooperators of the bishop.” Likewise, all “priests and lay people who belong to the diocesan curia” were to serve as obedient collaborators in their bishops’ ministries.

Thus, bishops would have final say in all matters of local church governance, assuming an authority over lower clergy and lay diocesan employees akin to that of religious superiors over those bound in obedience to them. Laypersons on new, ­bishop-appointed pastoral councils would serve in advisory roles only. Diocesan clergy would form “one priestly body” headed by a bishop, who was now ­guaranteed all “requisite liberty in making appointments to ministries and benefices.” Impediments to the final power of bishops in their dioceses, no matter how rooted in local, sometimes ancient, traditions, were to be swept away: “All rights and privileges which in any way restrict [episcopal] liberty should . . . be abrogated.”

Christus Dominus encouraged centralized episcopal control over national, not just local, churches. Bishops were urged to gather as a “college” and in national conferences, with a new liberty to experiment, from the top down, with all manner of things immemorially precious to the faithful—including the Holy Mass. As a result of this bureaucratizing component of the conciliar program, national bishops’ conferences popped up overnight, among them the National Conference of Catholic Bishops (today the United States Conference of Catholic Bishops), established in 1966. Assemblies of bishops were not new, of course: France, for example, had an active Assemblée du Clergé under the Ancien régime, but in practice that assembly had answered more to the king than to the pope. Bishops’ assemblies had formed in Switzerland in the mid-nineteenth century, and in Canada and several Latin American countries on the eve of Vatican II. New in the 1960s, ­however, was the sudden multiplication of ­conferences and their becoming the primary layer of bureaucracy through which the Vatican governed, and engaged with, the laity and lower clergy. Episcopal conglomerates quickly became the normal focus of ecclesial power, taking charge over the common life of the faithful, pronouncing on matters as varied as which ­fashionable vernacular translation would be imposed upon the Mass and which policy stands on nuclear weapons or immigration laypersons should take.

Due to various historical developments since the mid-nineteenth century, the Church today is structured in some ways as a kind of worldwide, bureaucratized nation-state—but without hard, institutional checks and balances from “below” to allow salutary pushback against projects imposed by the central planners. Traditionally, some laypersons and lower clergymen possessed rights and oversight powers with respect to the Church’s “internal affairs.” Today, lacking a “college” of their own, entire classes of lay and clerical members of the Church are at the mercy of episcopal authority. Even where some laypersons and lower clergy lead thriving Catholic organizations, the bishops may pick and choose which among them can act freely and fundraise within their dioceses. Though they constitute the mass of the “People of God,” the laity and lower clergy are disenfranchised in what has become a veritable papal-episcopal oligarchy.

With only a tiny minority at Vatican II opposing the new empowerment of bishops, the council and many theologians embraced it as a counterweight to the assertive Vatican I papacy, proclaiming the revival of the medieval conciliarist tradition and the early Church principle of “collegiality.” Amid the enthusiasm, few noted that collegiality and ­conciliarism, in the modern context, would operate more arbitrarily than in past times. The collegial bishops of yore could be forced by lay rulers to convene when bogged down by heresies, internecine squabbles, or their own moral lassitude. We partly owe the Nicene Creed to the Emperor Constantine’s force of will. The eleventh-century reform was hastened by the Holy Roman Emperor Henry III, who imposed the dour Pope Clement II upon a college of bishops that was not, left to its own devices, chasing after reform with manful vigor. In past centuries, bishops and pontiffs shared power over the corpus Christianum with lay rulers, great abbots and abbesses, thriving religious orders, cathedral chapters, theology ­faculties, and permanently posted pastors with influential patrons. When the princes of the Church met in those days, they knew that interested parties were watching and could act on their grievances and aspirations.

Under the new ecclesial regime, remnant checks on the hierarchy’s centralizing power have been eliminated, with little notice or resistance. For example, the 1983 Code of Canon Law abolished the right of already vitiated cathedral chapters, where they still existed, to elect a vicar capitular, or temporary administrator, to govern a diocese in its bishop’s absence. More significantly, the 1983 Code introduced a novel permission for bishops’ conferences to put term limits on the appointment of parish pastors (Canon 522). It also allowed bishops a new freedom to move pastors from parish to parish, based on subjective discernments regarding what would best serve “the necessity or advantage of the Church” (Canon 1748).

As Fr. Mark Pilon has noted, some bishops’ conferences, including the USCCB, responded with ­alacrity to these new permissions. The U.S. bishops voted to “allow bishops to establish whatever term limit . . . they decided upon for their diocese.” This caused alarm at the Vatican, which insisted on six-year terms, at minimum. The hope had been that bishops would use their new power lightly and value stability in parish assignments. But the opposite has been the case. Short-term pastorates are now so much the norm in the United States that it almost seems odd when a pastor stays at the same parish for more than a decade or two.

These changes uprooted the ancient norm of life-term pastorates. Previously, parish priests could resist bishops on some matters without fearing reprisal in the form of a reassignment. Pastors, too, when they stayed in one parish, had more opportunity to mature into paternal roles with respect to the flocks entrusted to them. Because pastors were long-term members of stable communities, there was also more familiarity with, and de facto oversight over, their behaviors by local families, social elites, and secular authorities than today’s system promotes. Since the 1980s, bishops have wielded the perpetual power of patronage, the ability to reward and punish priests with regularity. Career-minded churchmen now look to their bishops not just for good (or at least bearable) parish assignments, but also for more plum assignments every few years. But by what metric are priests rewarded? They must prove their “value” to the diocese, but the only person formally authorized to judge that “value” is the bishop. The results are predictable. Pastors today live with more fear than in the past that if they get on the wrong side of the chancery—for any reason, including preaching too earnestly about Church corruption or reporting on the misdoings of a priest who is friendly with the bishop—they will be “demoted” to another post.

A system in which parish clergy (as well as bishops, in another recent development) are regularly reassigned, often on the basis of opaque “executive floor” decisions concerning what will serve the Church’s “advantage,” is one in which those who commit or cover up crimes such as sexual abuse can escape detection or manipulate the system by demonstrating their “value” to episcopal patrons. And within the great globalized bureaucracy that the Church’s hierarchy has become—one not accountable to shareholders, employees, or citizens, and in which a culture of “passing the buck” prevails—some malefactors can, through blackmail and other means, climb the career ladder without too many questions being asked.

There can be no doubt that the Church needed to reconstitute herself to ensure her liberty in the modern age. But recent evolutions of the papal and episcopal offices have had the unintended effect of exacerbating conditions in which sexual predators and their protectors in the hierarchy can get away with their corruption. The same evolutions have erected structural barriers, too, which make it almost impossible for concerned laypersons and rank-and-file clergy­men to hold Church leaders to account for wounds they inflict on the Church’s body. In our so-called Age of the Laity, many laypersons—Mass-going stalwarts who volunteer time and resources; parents of boys who might become priests; even prominent lawyers, businessmen, intellectuals, and media professionals with connections in the hierarchy—are powerless before churchmen’s stonewalling, tone-deafness, and worse. Efforts toward accountability face jurisdictional and canonical hurdles to their timely realization. And in the rare instances when barriers can be overcome, many faithful men and women scrupulously hesitate to act, because they have been formed by the Church of the last century to view popes and bishops alone as the divinely ordained authorities over the Christian people’s corporate existence.

Under these circumstances, many Catholics find themselves thinking differently about the liberty of the Church in the twenty-first century. We see attorneys general in New York and other states proceed briskly with investigations similar to Pennsylvania’s. We know they do this for a mix of reasons, some unfriendly to the Church’s mission. But we also feel helpless in the face of the hierarchy’s glacial response to festering crises, and this leads us to welcome external investigations. They may not be driven by the faithful spirit that characterized the Duchesse d’Aiguillon, but they are, at least, a check on episcopal incompetence and arrogance.

Yet we need something more than investigations led by politicians who may regard Church-bashing as career-advancing. We need a change of attitude. Laypersons and even clergymen under episcopal authority need not confuse filial deference to bishops and popes with uncritical, docile acceptance of all the forms of power the hierarchy currently wields. Some of these powers are new in the history of the Church and are concentrated by happenstance in the hands of the hierarchy, due to the historical conditions of the Church’s self-preserving self-extrication from modern political regimes. Faithful and informed Catholics have filial duties to their mother—the Church herself—not only to their clerical fathers. They should call attention to problems and propose solutions, mindful that by virtue of holy baptism and confirmation, they have been gifted by the Holy Spirit not only with piety and fear of the Lord, but also with wisdom, understanding, knowledge, counsel, and fortitude.

Catholics also need to think freshly about Church governance. After the destruction of Christendom, the popes and bishops absorbed many powers over the common life of the Church that historically were wielded by lay rulers and social elites. Catholics today need not dream of restoring Christendom and its tightly woven fabric of clerical and secular rule. But perhaps the sexual abuse crisis serves to remind us that it was traditionally the duty and right of the laity to protect the physical, temporal body of the Church—to safeguard her orphans, widows, and all manner of persons endangered by malignant forces prowling about within the corpus Christianum, as well as outside of her.

Today, the safety and well-being of the Christian people’s children and young clergymen are in question. Laypersons may be called at this hour to assert their traditional rights within the Church as a whole, in order to secure the common good of our spiritual communion. We will need to pursue that duty in ­creative ways suited to present-day conditions. And we should anticipate—with the sober realism that the Church’s messy history engenders—that more than one exalted churchman will oppose worthy reforms with this or that implement from his modern stockpile of ecclesial power. 

Bronwen McShea is an associate research scholar of the James Madison Program at Princeton University.