This is the second in a two-part series on a bill (No. 34-0153) that would revive efforts to create a territorial constitution.
If there is a sixth Constitution Convention, it will face a challenge both clear and daunting: reconciling a desire to preserve traditional culture without running afoul of protections for individual rights, including those of “newcomers.”
The territory has been trying to find that balance since it was first authorized to write a Constitution in 1976.
Testimony at the Legislature last week on a bill that seeks to create the convention centered on the federal objections that effectively killed the last effort.
Those objections – some of which had been raised in response to previous drafts – were enumerated by the U.S. Justice Department in a Memorandum in 2010. When Congress rejected and returned the Fifth Constitutional Convention draft document, it sent along with the Memorandum with the suggestion that the draft be amended in line with the recommendations from Justice. (That hasn’t happened to date.)
Chief among the sticking points were sections in the draft Constitution that would have given special privileges to “native Virgin Islanders” and to “ancestral Virgin Islanders.”
The distinction was based on the supposed longevity of connection to the Virgin Islands. An “ancestral Virgin Islander” was defined as a person born in the Virgin Islands and living in the Virgin Islands on and before June 28, 1932, as well as that person’s descendants. That is the date on which people living in the Virgin Islands were declared to be U.S. citizens.
A “native” Virgin Islander is someone born in the territory anytime after June 28, 1932.
Under the rejected draft document, those two groups were the only people who could vote on issues involving the Virgin Islands’ status, that is, its relationship to the United States. And “ancestral Virgin Islanders” were given the privilege of voting on amendments to the VI Constitution even if they were not living in the territory.
One of the most controversial sections was a provision exempting “ancestral Virgin Islanders” from property taxes on undeveloped land and on their primary residences.
Another section limited the offices of governor and lieutenant governor to native-born Virgin Islanders who had lived in the territory for at least 15 years.
The native and ancestral privileges raised “serious equal protection concerns,” according to the Memorandum.
In a preface, it states, “Because it was difficult to discern a legitimate governmental purpose that would be rationally advanced by provisions conferring legal advantages on certain groups defined by place and timing of birth, timing of residency, or ancestry, the memorandum opinion recommended that those provisions be removed from the proposed constitution.”
Also of serious concern to Justice was a section intended to extend the authority of the local government over waters and submerged lands and fishing rights for a distance of 12 miles out from the islands’ coasts. The memorandum notes that by statute, the U.S. conveyed rights, title, and interest in submerged lands and mineral rights to the territory for a distance of three miles.
Also problematic was a section that attempted to redraw legislative districts and guarantee that St. John have at least one legislative representative. Because of the island’s small population, the provision may clash with the federal tenant of “one person, one vote.”
Some other issues were less troubling to Justice:
- The Bill of Rights section contains some imprecise language. For instance, it prohibits child labor in some incidences but fails to specify the age limits. The Memorandum recommends tightening the language.
- A 15-year residency requirement for gubernatorial eligibility could be considered to conflict with the federal prohibition against discriminatory qualifications for public office, the Memorandum states. However, shorter residency requirements have been accepted. (An internet search revealed that most states have residency requirements for their gubernatorial candidates ranging from two to seven years. None of them required candidates to be native-born in the state.)
- The fifth draft Constitution did not contain a section expressly recognizing U.S. sovereignty over the Virgin Islands, something that the 1976 congressional authorization said it should contain – and something that the federal government had reiterated when it commented on a fourth draft which also lacked such a section. While the Memorandum recommends inserting specific language, it also says that other sections in the draft Constitution make it clear the Virgin Islands recognizes U.S. sovereignty.
After more than 45 years of trying to establish a constitution, the easiest way to do it, say some, is to make the modifications to the fifth draft that the federal government recommended. Others argue for a fresh approach.
“We’re seeing, on the national level, huge changes, said Sen. Genevieve Whitaker, co-sponsor of the bill to create a sixth Constitutional Convention. There seems to be more concern for native and indigenous rights and for equal treatment for citizens in the territories. The next draft constitution the Virgin Islands sends to Washington might get a more favorable reception, she said.
Still, she said, she thinks the most expedient approach is to make the changes to the last draft that the federal government recommended.
“There’s always a compromise for the greater good,” she said. Once the territory has a constitution, it will also have the ability to amend it.
The bill establishing a convention, however, does not direct it to take that -or any other – approach. Co-sponsor Sen. Janelle Sarauw said the Legislature can’t put such restrictions on the delegates.
The bill does say that if the federal government makes recommendations for changes to a sixth draft document, the convention must educate the public about the federal concerns.
A referendum on the question of whether to hold a sixth convention was included in the 2020 election.
Of the 18,130 people who voted in that election, 10,115 of them (or close to 56 percent) answered the referendum question, according to Supervisor of Elections Caroline Fawkes.
Of the 10,115 who responded to the referendum, 7,275 were in favor of holding another convention. So, according to Fawkes’ figures, the total voting for a convention was just 40 percent of those voting in the 2020 General Election, but almost 72 percent of those voting on the referendum.