The following quotes from various constitutions of the Lutheran church throughout its history might be helpful in determining what exactly the understanding of the unity of the one true and apostolic church has been understood to be, what constitutes ordained ministry and where the authority for conferring that ministry has resided. Looking at statements of faith and constitutional clauses might be helpful in determining whether or not a Lutheran sees the need for the episcopacy in order to become “legitimate’ and acceptable to the Episcopalian Church.
The earliest constitution, which provides information for our consideration, was the General Synod’s constitution of 1820. We can safely glean from the statement offered here something that reflects an historic view for Lutherans. “Jesus Christ, the Supreme Head of His Church, having prescribed no special Regulations concerning Church government, and every sectional portion of the Church being left at full liberty to make such regulations to that effect, as may be most adapted to its situation and circumstances, therefore - Relying upon God our Father, in the name of our Lord Jesus Christ, under the guidance and direction of the Holy Spirit in the Word of God, for the promotion of the practice of Brotherly Love, to the furtherance of Christian Concord, to the firm establishment and continuance of the unity of the Spirit in the bond of Peace."
There are two points of importance here. The first is that our Lord, “having prescribed no special regulations concerning church government," neither endorses the necessity nor prohibits the practice of certain rites. Therefore, Lutherans can on the one hand say that our Episcopal brethren are in the one true church, while on the other hand state that laying on of hands to validate the ordained ministry is unnecessary for the one true church to exist. The second point is a recognition of the unity that already existed in the church outside of any special prescriptive practice or structural visibility. We need to remember that Swedish Lutheran churches had already been absorbed by Episcopalians 150 years prior to this. Had the laying on of hands within the Episcopal framework been critical for Lutherans, it would have been brought out in this document.
If one wishes to argue in ‘conservative’ and ‘liberal’ terms, arguing is quickly put to rest when contrasting what might be considered the opposite Lutheran perspective of the day in the form of the Buffalo Synod and their constitution of 1849. The last part of the third article of its constitution stated, “Therefore . . . declares further, that her Ministers and Teachers shall not be examined, invested and sent by any other than her own afore-said Synod and Ministry, and only by their Ministry shall be ordained their candidates. And only by their ministry . . . here we see the pattern that has been practiced by Lutherans all along of acknowledging the ministry which calls the pastor be the basis of ordination. In fact, in the Buffalo constitution, it was understood that the ministry that called exclusively determined the need for ordination. In keeping with the historic understanding of the priesthood of all believers and a lack of segregation between clergy and laity, the difference between the Episcopal understanding of the priesthood and the Lutheran understanding should be clearly and historically understood.
The Norwegian Lutheran Church in America (which changed its name to the Evangelical Lutheran Church (ELC) in 1946), declared in Chapter I of its constitution, “In regard to church rites, it is left to each congregation to decide for itself. But in order that there may as a whole be uniformity also in church rites, the Church recommends that the congregations use the ritual of the Norwegian Church, modified according to the present common usage among us. It is left to each congregation . . . in other words, the authority both of establishing rites and the calling capacityremained in accordance with practice of the day. There was a uniformity in church rites, but they were done in agreement, not in prescription. Note the congregation authority perspective, which has always been understood as a part of being ‘Lutheran.’
In 1918, the ULCA was formed by joining together the various churches associated with the federations created by the various General Synods of the eastern United States in the nineteenth century. By the time of the 1918 constitution, the language used in her governing document was much clearer and more perfunctory in dealing with the issues of the church, ministry and ordination. Quoting three sections of Article III of her constitution, the power and authority of both the church, as it was seen as a unified whole, and the nature of ordination became quite clear. “Section 3. Congregations are the primary bodies through which power committed by Christ to the Church is normally exercised. Section 4. In addition to the pastors of churches, who are ex officio representatives of their congregations, the people have the right to choose representatives from their own number to act for them under such constitutional limitations as the congregations may approve. Section 5. The representatives of the congregations convened in Synod and acting in accordance with their Constitution are, for the ends defined in it representatively the congregations themselves, and have the right to call and set apart ministers for the common work of all the congregations: whose representatives they thereby become, and as such also members of the Synod.
The primary body of gathering, the basis of understanding what synod meant, for the governance of the church, was the congregation. The ecclesiastical nature of the Lutheran church has always been bottom up, not top down. It is not that the church is a singular congregation, or even a collection of like-minded congregations, for it is not; but that the local expression - - i.e., the congregation - - is understood as being the primary expression and first in describing the needs of the church as a whole. Collectively, the picture is one which precluded a need for a hierarchical structure, either in its priesthood, or its understanding of ordained ministry. Further, the pastors were seen as extensions of the local ministry to which they were called and for which purpose they were ordained. The authority of the ministry was seen as emanating not from the office of ministry, but from the ministry itself. Finally, the understanding, long a part of the Lutheran tradition, of calling from amongst the congregation those needed for the ordained ministry was reaffirmed in section 5. Not only were they empowered to call, but also they had the ‘right’ to call ministers. The congregation and not leaders of the synod had the ‘right’ of ordination.
In 1920, the ULCA began the first of many declarations aimed at ecumenism. The Washington Declaration stated: “Concerning the Catholic Spirit in the Church. I. In its Confession the Evangelical Lutheran Church declares its belief that there is “one holy Church," which “will continue forever." It defines this Church as the “congregation of saints and true believers." II. This one holy Church performs its earthly functions and makes its presence known among men through groups of men who profess to be believers in Jesus Christ. In these groups the Word of God is preached and the Sacraments are administered. To such groups also the name “church" is given in the New Testament and in the Confessions of our church.
The declaration continued to describe the church as a mystery that could not be demonstrated visibly, but was evident whenever the Gospel was rightly taught and the Sacraments was rightly administered. It is important to understand that the church was very clear in making pronouncement that it believed in the invisible church and that basis for unity was in the carrying out of the mission of the church, not in the way in which it was carried out.
The idea of “Apostolic" succession was not through the rite of laying on of hands, or an unbroken chain followed back to the time of antiquity, but as the Chicago Thesis of 1919 would proclaim, “the Apostolic Church, with the word of God in its purity and the Sacraments as instituted by our Lord," is the true church. It is important to recognize the clear difference between Lutherans and Episcopalians in understanding the nature of apostolic succession, its purpose and definition. Historically, there is clearly a difference in what the basis of continuity for the church has been. Lutherans have historically held to the understanding that right practice of ministry, and not rite practice of introduction of the ordained ministry is the basis of the church. The power of the church comes from where ministry is done, not from how it is done (or by whom).
Both the Minneapolis and Chicago Theses were precursors to the formation of the original American Lutheran Church of 1930. The ALC was a strong doctrinal church that adhered to the practices developed to that time and saw no need for any variance. Because the Buffalo Synod was one of the three bodies merging to form the ALC, the tradition of a congregation call as the basis for ordained ministry is apparent. The following section of the ALC constitution gives a clear indication of the sentiment toward non-Lutheran practice in any form, regardless of intent. “The Synod regards unity in doctrine and practice the necessary prerequisite for church fellowship, and therefore adheres to the rule, “Lutheran pulpits for Lutheran pastors only, and Lutheran Altars for Lutheran communicants only," and rejects unionism in all its forms." The Galesburg Rule has been the basis of many contentions for modern Lutherans, but its basis is grounded not in perceived prejudice, but in a clear understanding of the need for Word and Sacrament being given in their purity.
A rather telling statement regarding ecumenism came from the Savannah Declaration, “We also recognize that the Church is confronted with peculiar problems and difficulties. Its really serious problems are not administrative or economic, but have to do with matters that are fundamental to the Church’s faith and life. As Christians, we believe that human nature is not altered by external circumstances, and that the Gospel of Jesus Christ remains unchanged, no matter how human institutions may be unmade and remade." Our union should be internal and not external.
In fact, in direct refutation of the idea of the laying on of hands and the “Apostolic" succession of the Episcopalians, the AELC constitution stated, “1. Concerning the ordination of pastors the caution, “Lay hands on no man," 1 Timothy 5:22, shall be observed."
When the ALC came into formation in 1960, the understanding of how clergy retained ordination only through specific ministry as validation of ordination was clear in section 733.1 of the ALC’s constitution. In fact, 733.1(7) recognized that one without call was only in a temporary situation. Recognizing the history of the church, if one did not have a call, one could not remain ordained. Ordination was verified by the service, not by rite.
The understanding of the ordained ministry as a service was equally upheld when the LCA came into existence in 1962. It first acknowledged that the congregation retained authority in all matters not held as a matter of necessity by the larger organization. It was quite specific in spelling out that clergy had to be under call in order to retain ordination. “Each minister of this church, except those who are retired by reason of age or disability, shall be in possession of a call from a congregation, this church itself, a synod, or a board of this church. As an exception to this rule, a minister awaiting a call to a new field of labor may be retained on the clergy roll from year to year for no more than three years by action of the synod to which he belongs."
We finally arrive at the ELCA’s model constitution, which does not refute the Lutheran understanding that the church has always had a valid ministry and has been a part of the historic expression of faithful proclamation of the Gospel. Describing the nature of the church, the constitution declares, “in length, it acknowledges itself to be in the historic continuity of the communion of saints." The constitution further declares that the authority to call still resides in the congregation.
The 1999 Assembly of the ELCA has the constitutional right to vote any way it so chooses. How they vote is not the real question of the Concordat. The real question is whether or not the ELCA will be choosing to leave its historic roots of being a church without an ecclesiastical episcopal heritage and one who has seen that ordained ministry is from, of and for the congregation, in favor of a visible church who insists in the abandonment of both our heritage and understanding of the nature of ordained ministry in favor of a new (to Lutherans) ecclesiastical structure which upholds the validation of ministry through the process of ordination and not the call of ministry by the congregation. If the Concordat is passed, the ELCA will break its historic continuity with its understanding of ordained ministry, clergy and the priesthood. From an historic perspective, the Concordat is unconstitutional. However, like any constitution, it can be changed. But is such change good, or even necessary?
 (1820) Constitution of the Evangelical Lutheran General Synod in the united States of North America, opening preamble to the constitution.
(1849) Declaration of the German Lutheran Trinity Church, Buffalo, N.Y. Constitution of the Buffalo Synod, Article III.
 (1917) Constitution of the Norwegian Lutheran Church in America, 1917. Chapter 1, article 4. Of the opening statement in the constitution.
 (1918) Constitution of the United Lutheran Church in America. Article III, delineating the principles of organization.
 (1920) Washington Declaration of the ULCA.
 (1919) Chicago Thesis. Section B, Article 1 stating a mutual declaration regarding the practice of the church.
 (1930) Constitution of the American Lutheran Church. Article I, Section 3 proclaiming the confession of faith.
 (1934) Savannah Declaration of the ULCA. A resolution sent from the ULCA to other Lutheran denominations in an attempt to bring about further cooperation amongst Lutherans.
 (1954) Signed copy of the Constitution for the American Evangelical Lutheran Church. Article VII dealing with ordination and admittance of pastors, point 1.
 (1962) Constitution of the LCA. Article VI, Section 1.
 Ibid., Article VII, Section 5.
 (1987) ELCA Model Constitution. Chapter 3 dealing with the nature of the church, clause C3.02.
 Ibid., Chapter 9, C9.01.