Constitution – America, the Principle

Was the AOC intended as a “stop-gap”measure while they designed the Constitution?

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.

Should we have stayed with the Articles of Confederation?

Paul Newkirk –

The AOC document failed to provide for a functioning central Government, and that was its basic downfall. But it did make some tremendous contributions.

The single most significant achievement of the “Articles of Confederation and Perpetual Union” is that it is the instrument by which the separate and sovereign States welded themselves together perpetually into one single Country. People could now refer to themselves as Americans, and it now had a legal meaning rather than just a nickname.

However, since the primary governmental sovereignty stayed with the States, the AOC provided very little structure for the Country to develop any unity of purpose or action. The States continued to put their own interests first, relative to all of the other States.

After trying to function for a dozen years or so with this impractical situation, they amended, updated, and superseded nearly all of the provisions of the AOC, one at a time, and gathered the results into a new Constitution. *Nearly* all provisions. But most definitely, not all of them.

Two provisions of the AOC were left in place, and remain so, to this day:

1.) The fact of the Perpetual Union, and

2.) The actual provision establishing the name of the Country.

Both of those items were already in existence, and there was no need to re-create them, even though all of the other provisions had been superseded. Which is why these two items are NOT found to be officially established within the Constitution.

And no; the Preamble does not “establish” anything at allIt is merely an introduction, with a list of goals. [EDIT:] But it DID note that the people entity, “We the people” as the sovereign of the Country, had produced this Constitution, and that IT was the ultimate arbiter of American governance, rather than the States.

And no, contrary to popular myth, the AOC was NOT cancelled in its entirety upon adoption of the new Constitution. There is not one single word, anywhere, which would have that effect. Not one. It did not happen.

The most salient change established by the Constitution was:

1.) to vest the primary national sovereignty of the Country, with The People, and

2.) to vest the secondary national sovereignty, with the Constitution and its central Government, and

3.) to vest/confirm the tertiary level of sovereignty with the State Governments, within their own States.

The end result was a functional Country, rather than a club of States.

What would have happened if Virginia or New York didn’t ratify the Constitution?

Paul Newkirk –

It would have been a problem. New York and Virginia were the ones with the largest populations as well as the most land, and they both were situated physically right smack in the middle of the 13 States.

Combined with the actual hold-out States of Rhode Island and North Carolina, those four States could not have blocked the remaining 9 States from putting the Constitution into effect legally, since 9 States was all that was called for. But the result would have been impractical, with the Constitution States separated by wide geographical areas by those hold-outs. Not readily defensible, and not an efficient way to do business, with each other, nor with the rest of the world.

Faced with an intolerable situation such as that posed by your question, they would have called for ANOTHER Constitutional convention and either started over from scratch, or they would have negotiated with the 4 hold-outs to deal with their demands. Which would have generated a few Amendments to the hung-up, but already ratified (by nine States), first effort at a Constitution.

This kind of situation could have gotten very dicey, since the reluctant 4 States were perfectly within their Rights to DEMAND that all 13 States remain under the Articles of Confederation.

How so? The AOC clearly stated that the only way to amend THAT document was by unanimous consent of ALL of the States; which certainly had not been achieved in the process followed to Adopt and Ratify the new Constitution. If the hold-outs had been really upset about something, and continued their holding-out, they could have told James Madison and friends to go take a flying leap. Legally.

Might have been a good idea to remove any sharp implements or heavy objects from Constitution Hall before the next Convention began. Virginia decided on its own to join up in return for a Bill of Rights, and luckily, the Founders were able to explain to the other hold-outs what life would be like for them if all the other States were slow to support them when another “acquisitive” European power became “interested” in them. Whereupon all the remaining hold-outs decided to sign up.