The church has a constitution: it is canon law and the various dogmatic constitutions of Vatican II. By law the Sovereign Pontiff holds “supreme, full, immediate, and universal ordinary power” over the church. He alone holds all executive, legislative, and judiciary powers. Although absolute in theory, the pope's power is in fact quite limited because of the lack of transparency and public accountability in the whole church. Secrecy protects the Vatican but isolates it beyond its walls. For information and execution the pope depends on the Curia, whose members can misinform him and ignore his injunctions. The pope reigns but the Curia governs. The papacy and the Curia form an interlocking system that is closed to outsiders. Benedict XVI resigned, it seems, because he could not reign over the Curia. It will require more than bureaucratic re-arrangements and moral exhortations on the part of Pope Francis to change the system.

The most dysfunctional aspect of the church organization is its lack of an independent judiciary, as the pope and the bishops are at the same time prosecutors, defense attorneys, and judges. Because the victims of priestly misconduct and episcopal cover-ups could not find redress in any ecclesiastical court, they sued in civil and criminal courts. The U.S. church spent about $2 billion in legal fees and damages which led several dioceses to bankruptcy. This world-wide negative publicity about the sexual scandals could have been avoided had there been legal channels of justice and redress within the church.

Vatican II did not deal with power in the church. Its role was mostly theological and pastoral, that is, deliberative, not legislative. The concept of People of God was a Vatican II insight that did not change the structures of church. "All men are called to be part of this catholic unity of the people of God" (LG, 13). "In the first place amongst these there are the Muslims" (LG 16). Such views may be enlightening but they do not change reality. In spite of the concept of people of God Catholicism today is as hierarchical as ever, and the increased papal centralization after Vatican II seems to have made it even more unequal.

The Synod of 1967 wished for a constitution in the modern sense of the word, the so-called Lex Fundamentalis, but the idea got lost in endless discussions. Here are three points that I would suggest for a new constitution.

1. There is no forum for dissenting innovation in the church, and public dissent is reprensible by canon law. In our time of economic and religious globalization, there is much innovation and growth in Protestant and Catholic evangelical groups and churches, especially in the Global South. Much can be learned from them. Dissenters and innovators are dangerous, but without risk there is no progress. The new constitution should protect the right and value of dissenting innovation.

2. Ordination does not create the church. Bishops can ordain priests and priests can build sanctuaries, but ordination and church buildings do not create the church. Faith in Jesus Christ does. This faith is greater than Catholic orthodoxy and the power structures created by ordination. There must be some ecumenical opening to all Christians of faith beyond the strict limits of orthodoxy and the existing ecclesiastical power structures. The new constitution should include a less hierarchical and more ecumenical ecclesiology.

3. The church is choking because of excessive centralization and secrecy. The liturgy is like music on a piece of paper, fixed and rigid. It is like music played by a mechanical piano that has no room for improvisation and creativity. All major decisions (e.g. about episcopal promotions) are secret. Even consultations are secret. Secrecy is one of the most powerful tools of power. Secrecy in power can hardly be justified by business norms, and not at all by biblical principles.

Local churches need more autonomy. For instance each continent or language group should have its synod and curia, like the ancient patriarchates. The churches of the U.S. and Canada could be one patriarchate with local autonomy. The new constitution should create autonomous local churches, not just uphold the strongly centralized papacy.