An interesting argument was put forth at this week’s UC College of Law Federalist Society meeting. Professor Eugene Kontorovich of Northwestern Law gave a talk on the “The Quasi-Legality of Israel’s Annexation of the Golan Heights and Occupation of the West Bank”. As an aside he stated the US Government is the result of a coup. Prof. Kontorovich made this argument to support his view that at some point the facts on the ground must be acknowledged:
- The Constitutional Convention was called to amend the Articles of Confederation.
- The Articles of Confederation required a unanimous vote of all member states.
- The current US Constitution was adopted by the state without a vote on the Articles of Confederation.
This syllogism is tempting but the ratification of the Constitution by each state that was party to the Articles of Confederation is in implicit unanimous amendment to the Articles replacing them with the Constitution.
This is not to say that the facts on the ground need not be acknowledged. In general the longer a situation persists the more acceptable it becomes—eventually to the point that it becomes accepted.