Paul Newkirk –
The AOC was not really intended as a temporary stopgap, and no one had even seriously contemplated designing a federal Constitution at that point in time. The AOC was a series of definite statements, giving one the impression that this was intended as the final instrument, but as a contract between independents; not as a constitution. In fact it stood in place for ten years before it became painfully obvious to everyone that it was inadequate. During that decade, and slightly before that, the Colonies, one at a time had turned themselves into States and created their own State Constitutions according to their local desires. They all found this effort satisfying and the result effective, Mass. being one of them. The thought of a nationwide variety of constitution became more palatable.
The pertinent aspects of the AOC are:
A. That the states are hereafter joined into a Union, and,
B. The clear and unambiguous statement that the Union of the new States shall be perpetual. They were so strong on this “perpetual” point that they repeated it a reported 12 times, and as you know, repetition is normally frowned upon and kept to a minimum in the composition of such documents. I started counting the “perpetuals” myself and quit at at a count of 6, being convinced. And then there is,
C. An entire Article dedicated to the establishment of the name of this new Union as the United States of America. The Constitution does NOT do this, and it can hardly be claimed as an oversight in the following Constitution since these same delegates had so very carefully attended to it in the original AOC.
Neither A, nor B, nor C is present in the Constitution.
At the end of the first decade the AOC was performing so poorly that the States severally agreed to select delegates and send them to Philadelphia with the express mission of “improving” the AOC. As compared to and contrasted with any instruction to trash-can the AOC altogether and dream up something brand new. There was no initial intention of doing any such thing as starting over from scratch..
The delegates upon arrival in Philadelphia quickly came to the consensus that their new State Constitutions were a whole lot better than the AOC compact, and began to see that a federal one would also be the way to go, in order to handle the affairs of the Union more efficiently. So they wrote one up. After much travail. And the underlying concern was that they were exceeding their mandate by a country-mile which was to simply spruce up the old AOC. There was signifiant uncertainty amongst the delegates as to whether the “folks back home” would stand still for this. In fact, Patrick Henry famously did NOT stand still for this at all, when he found out about it “back home” several weeks later. He really did try to trash-can the whole Constitution during the State ratifying process in Virginia, and wanted to stick with the original idea of fixing up the existing AOC. He lost by three or four votes as I recall.
Which is why there is no language in the Constitution that cancels the AOC. Instead, they started out, right in the first line, to make it clear that the “people” who were creating this Constitution were “of the” United States of America, which THUS was acknowledged as already being “United” and in existence. Couldn’t very well say that if the “United States of America” did NOT ALREADY exist or was NOT United. It would have made no sense legally, semantically, linguistically or rhetorically.
Notice the continuity from the AOC which created the “United” aspect, as well as merely quoting the already existing NAME of said Union in the Constitution.
And then they go on to say that what they are doing here is “to form a more PERFECT Union,” not to get rid of the old one and create a brand new one, but to perFECT the existing one. Notice how keeping the bones of the old AOC in place gives the delegates cover from the criticisms of the Patrick Henrys of the world.
My original question here was whether the delegates were on firm LEGAL ground on the continuity question when they updated, modified and amended almost everything in the AOC, but left just items A, B, and C, in place. Without including a cancelation statement, they are simply left in place as active as active.